CME PRODUCTION B.V. and CME ROMANIA B.V. and MEDIA PRO MANAGEMENT S.A. and MEDIA PRO B.V. and ADRIAN SARBU FRAMEWORK AGREEMENT
Exhibit
10.5
27 JULY
2009
CME
PRODUCTION B.V.
and
CME
ROMANIA B.V.
and
MEDIA
PRO MANAGEMENT S.A.
and
MEDIA
PRO B.V.
and
XXXXXX
XXXXX
_________________________________________________
_________________________________________________
TABLE OF
CONTENTS
Page
1.
|
Definitions
and Interpretation
|
4
|
2.
|
Transaction
and Determination of Purchase Consideration
|
14
|
3.
|
Conditions
Precedent to Closing
|
15
|
4.
|
Closing
|
19
|
5.
|
Obligations
Prior to Closing
|
23
|
6.
|
Warranties
|
25
|
7.
|
Sellers'
Undertakings and Post-Closing Covenants
|
26
|
8.
|
Purchaser
Undertakings & Post-Closing Covenants
|
27
|
9.
|
Termination
|
28
|
10.
|
Indemnity
|
29
|
11.
|
Limitations
on Liability
|
30
|
12.
|
Guarantee
|
31
|
13.
|
Notices
|
32
|
14.
|
Entire
Agreement
|
34
|
15.
|
Third
Party Rights
|
34
|
16.
|
Amendments
|
34
|
17.
|
Costs
and Expenses
|
34
|
18.
|
Set-off
and Gross-up
|
34
|
19.
|
Assignment
|
35
|
20.
|
Confidentiality
|
35
|
21.
|
Announcements
|
35
|
22.
|
Severability
|
35
|
23.
|
Further
Assurance
|
36
|
24.
|
Waivers
|
36
|
25.
|
Counterparts
|
36
|
26.
|
Governing
Law and Jurisdiction
|
36
|
27.
|
Dispute
Resolution
|
36
|
SCHEDULE 1
BASIC INFORMATION ABOUT THE TARGET COMPANIES
|
38
|
SCHEDULE 2
FORM OF CLOSING CERTIFICATES
|
42
|
SCHEDULE 3
WARRANTIES
|
44
|
SCHEDULE 4
DISCLOSURE SCHEDULE
|
62
|
SCHEDULE 5
REAL PROPERTIES
|
64
|
SCHEDULE 6
MEDIA PRO TRADEMARKS AND DOMAIN NAMES
|
74
|
SCHEDULE 7
LIST OF RELATED PARTY LOANS AND SHAREHOLDER LOANS
|
81
|
SCHEDULE 8
POST-COMPLETION OBLIGATIONS
|
83
|
SCHEDULE 9
ESTIMATED ADJUSTMENT AMOUNT
|
85
|
SCHEDULE 10
AGREEMENT OR DETERMINATION OF ADJUSTMENT AMOUNT
|
88
|
SCHEDULE 11
FILM PRODUCTION AND FINANCING TERMS
|
89
|
SCHEDULE 12
AGREED FORM SUBSCRIPTION AGREEMENT
|
91
|
SCHEDULE 13
AGREED FORM WARRANT
|
104
|
SCHEDULE 14
SPECIFIC RELATED PARTIES
|
113
|
BETWEEN:
(1)
|
CME PRODUCTION
B.V., a company
organized under the laws of the Netherlands, registered under number
34349555 with the Trade Register and having its registered office at Xxx
0X, Xxxxxxxxx JS 1012, the Netherlands (the "Purchaser");
|
(2)
|
CME ROMANIA B.V., a company
organized under the laws of the Netherlands, registered under number
33289326 with the Trade Register and having its registered office at Xxx
0X, Xxxxxxxxx JS 1012, the Netherlands ("CME
Romania");
|
(3)
|
MEDIA PRO MANAGEMENT
S.A., a Romanian legal person, registered under the number
J40/4177/2001 with the Register of Commerce from Bucharest, CUI 00000000
and having its registered office at 000 Xxxxx Xxxxxxxxxxxx Xxx., 0xx
Xxxxx, xxxxxx 0, Xxxxxxxxx, Xxxxxxx ("Media Pro
Management");
|
(4)
|
MEDIA PRO B.V., a
company organized under the laws of Netherlands, with registered number
33288103 and having its registered office at Teleport Xxxxxxxxx 000,
0000XX, 0000 XX, Xxxxxxxxx, Xxxxxxxxxxx ("MP BV");
and
|
(5)
|
XXXXXX XXXXX, of 0X
Xxxxxxxx Xxxxxx, Xx. A, Et. 5, Apt. 15, Section 1, Bucharest, Romania, as
guarantor (the "Guarantor");
|
Media Pro
Management and MP BV are hereby referred to as the "Sellers" and each a "Seller", as the context
requires.
WHEREAS:
(A)
|
Media
Pro Management and MP BV own, inter alia, interests
in a number of entities more particularly described in Recitals (B) and
(C) below that comprise the entertainment division of the Media Pro
Group.
|
(B)
|
As
of the Execution Date, Media Pro Management
owns:
|
|
(i)
|
1,797,395
registered shares of Media Pro Pictures S.A. (which represents a 37.475%
Ownership Interest), which in turn
owns:
|
|
(a)
|
50
shares of Media Pro Distribution S.R.L. (which represents a 10% Ownership
Interest);
|
|
(b)
|
11,832,361
shares of Studiourile Media Pro S.A. (which represents a 81.47% Ownership
Interest); and
|
|
(c)
|
1,020
shares of Domino Production S.R.L. (which represents a 51% Ownership
Interest);
|
|
(ii)
|
450
registered shares of Media Pro Distribution S.R.L. (which represents a 90%
Ownership Interest);
|
|
(iii)
|
a
100% Ownership Interest in Media Pro Pictures s.r.o. (which corresponds to
the investment contribution to the registered capital of Media Pro
Pictures s.r.o. in the amount of CZK 200,000), which in turn
owns:
|
3
|
(a)
|
a
51% Ownership Interest in Zmena s.r.o. (which corresponds to the
investment contribution of CZK 102,000 to the registered capital of CZK
200,000);
|
|
(b)
|
a
51% Ownership Interest in Takova normalni rodinka s.r.o. (which
corresponds to the investment contribution of CZK 102,000 to the
registered capital of CZK 200,000);
|
|
(iv)
|
168,020
registered shares of Pro Video S.R.L. (which represents a 99.95% Ownership
Interest), which in turn owns:
|
|
(a)
|
400
shares of Hollywood Multiplex Operation S.R.L. (which represents a 100%
Ownership Interest); and
|
|
(b)
|
8
shares of Media Pro Music and Entertainment S.R.L. (which represents a 40%
Ownership Interest); and
|
|
(v)
|
12
registered shares of Media Pro Music and Entertainment S.R.L. (which
represents a 60% Ownership
Interest).
|
(C)
|
As
of the Execution Date, MP BV owns:
|
|
(i)
|
2,998,818
shares of Media Pro Pictures S.A. (which represents a 62.524% Ownership
Interest); and
|
|
(ii)
|
80
shares of Pro Video S.R.L. (which represents a 0.05% Ownership
Interest).
|
(D)
|
The
Sellers wish to sell and the Purchaser wishes to acquire the Sale
Securities in consideration of the Purchase Consideration (each term
defined below), subject to the terms and conditions contained
herein.
|
(E)
|
It
is intended that after the Execution Date, certain Target Companies and
Media Pro Management shall issue and register additional shares in
relation to the capitalization of the Shareholder Loans pursuant to this
Agreement.
|
IT IS AGREED as
follows:
1.
|
Definitions
and Interpretation
|
1.1
|
The
following definitions apply in this
Agreement:
|
"Accounts"
|
means
the audited balance sheet as at the Accounts Date and the audited profit
and loss account for the period ended on the Accounts Date of each of the
Target Companies, and the notes, reports, statements and other documents
which are required by law to be, or are otherwise, annexed to the
same;
|
||
"Accounts
Date"
|
means
31st
December 2008;
|
||
"Adjustment
Amount"
|
means
the amount equal to the adjustment amount as determined or agreed in
accordance with the provisions of Schedule
10 and set out in the Adjustment Statement;
|
||
"Adjustment
Statement"
|
means
the finalised statement setting out the Adjustment Amount provided in
accordance with Schedule
10;
|
4
"Affiliate"
|
of
a person means any person that directly or indirectly through one or more
intermediaries Controls, is Controlled by, or is under common Control
with, such person; provided that, for the
avoidance of doubt, neither CME, CME Romania nor the Purchaser shall be
considered an Affiliate of either of the Guarantor, the Sellers or any of
the Target Companies for purposes of this Agreement or any of the
Transaction Documents;
|
||
"Agreed
Form"
|
means,
in relation to a document, the form of that document which has been
initialled for the purposes of identification by each party
thereto;
|
||
"Assigned
Receivable"
|
means any Gross Receivable from
Specific Related Parties (trade related) that has been assigned to Media
Pro Management pursuant to Clause 3.1.15;
|
||
"Business
Day"
|
means
a day (other than Saturday or Sunday) on which commercial banks are open
for general business in New York, London and Bucharest (other than solely
for services via the internet);
|
||
"Business Name Assignment
"
|
means
the Business Name Assignment and License Agreement to be entered into on
or before the Closing Date between the Sellers, the Guarantor and the
Purchaser or an Affiliate of the Purchaser in respect of the assignment
and license of the "Media Pro" name;
|
||
"Cash
Consideration"
|
has
the meaning set forth in Clause 2.2.1;
|
||
"Claim"
|
means
any claims, rights, actions or proceedings of any nature, contingent or
actual, known or unknown, including any appeals in such proceedings,
whether asserted or not, which a person has, could have had, or in the
future could have against any person or any of its subsidiaries and
Affiliates or current or former shareholders, relating in any way to the
assets, ownership structure or other affairs of such person or any of its
subsidiaries or current or former shareholders and
Affiliates;
|
||
"Closing"
|
means
the completion of the sale and purchase of the Sale Securities as
described in Clause 4;
|
||
"Closing
Date"
|
has
the meaning set forth in Clause 4.1;
|
||
"Closing
Statement"
|
means
the statement prepared by the Sellers setting out in Part A the Estimated
Adjustment Amount and in Part B the details of the Estimated Gross
Receivable by MPE from the Specific Related Parties and the Estimated
Gross (Payable) by MPE to the Specific Related Parties (trade related)
together with a certification by a director of each Seller that the Gross
Receivable by MPE is solely in relation to goods and services that have
been fully performed and delivered as at the Closing Date and that no
further performance or delivery of goods by any of the Target Companies is
required whatsoever in respect of the Gross Receivable by MPE from
Specific Related Parties other than the use of property rented by Specific
Related Parties from Target Companies under agreements set out in Schedule
5;
|
5
"CME"
|
means
Central European Media Enterprises Ltd., a Bermuda
company;
|
||
"CME Common
Shares"
|
means
the Class A Common Shares and the Class B Common Shares in the capital of
CME;
|
||
"Conditions
Precedent"
|
means
the conditions to Closing set out in Clause 3;
|
||
"Consideration
Shares"
|
has
the meaning set forth in Clause 2.2.2;
|
||
"Control"
|
means
the power to direct or cause the direction of the management or policy of
any person, directly or indirectly, whether through family relationship
(if a natural person), the holding of securities or other participation
interests, by virtue of an agreement, arrangement or understanding or on
other grounds, and "Controlling" and "Controlled" shall have
the correlative meanings proceeding from this term;
|
||
"Converted Shareholder
Loans"
|
means such of the Shareholder
Loans in the aggregate principal amount of not less than XXX 75 million
that are capitalized in accordance with Clause 3.1.14
of the Conditions Precedent (with the aggregate amount of such Shareholder
Loans denominated in a currency other than XXX revalued in XXX as of any
relevant date);
|
||
"Data Protection
Legislation"
|
means
all laws applicable in Romania or in any other relevant jurisdiction
concerning the protection and/or processing of personal
data;
|
||
"Disclosure
Schedule"
|
means
the disclosures made as of the Execution Date against the Warranties of
the Sellers set out in Schedule
4, which disclosures have been arranged in sections
corresponding to the numbering and lettering of the applicable Warranty in
Schedule 3 (and which shall also apply to other
Warranties only to the extent that it is reasonably apparent from the face
of the disclosure that such disclosure would also apply to such other
Warranties);
|
||
"Domino"
|
means
Domino Production S.R.L., a Romanian legal person, registered under the
number J40/7857/2007, fiscal registration number CUI 00000000 and having
its registered address at Bucharest, 5 Intr. Xxxxxxx Xxxxx Street, 1st
Floor, Apart. 7, Xxxxxx 0, Xxxxxxx;
|
||
"Encumbrances"
|
means
any Claim, charge, mortgage, pledge, security, lien, option, equity, power
of sale, hypothecation or other third party right, retention of title,
right of pre-emption, right to acquire, right of first refusal or security
interest of any kind;
|
6
"Estimated Adjustment
Amount"
|
means
the amount equal to the estimated adjustment amount estimated in good
faith in accordance with Schedule
9 and set out in the Closing Statement;
|
||
"Execution
Date"
|
means
the date hereof;
|
||
"Existing
Dispute"
|
has
the meaning set forth in Clause 27.3;
|
||
"Euro" or "EUR" or "€"
|
means
the single currency of those member states of the European Communities
that adopt or have adopted the Euro as their lawful currency under the
legislation of the European Communities for Economic Monetary
Union;
|
||
"Film Production and Financing
Terms"
|
means
the Film Production and Financing Terms between Xxxxxx Xxxxx and CME
attached as Schedule 11;
|
||
"Governmental
Authority"
|
means
any supranational, national, provincial, municipal or other court,
arbitral tribunal, administrative agency or commission or other
governmental administrative or regulatory body, authority, agency or
instrumentality;
|
||
"Guaranteed
Obligations"
|
has
the meaning set forth in Clause 12.1;
|
||
"Guarantor"
|
means
Xxxxxx Xxxxx, a national of Romania, residing at 0X Xxxxxxxx Xxxxxx, Xx.
X, Xx. 0, Xxx. 00, Xxxxxxx 0, Xxxxxxxxx, Xxxxxxx;
|
||
"HMO"
|
means
Hollywood Multiplex Operation S.R.L., a Romanian legal person, registered
under the number J40/6452/1999, fiscal registration number CUI 00000000
and having its registered address at Bucharest, 00-00 Xxxxx Xxxxx Xxxxxx,
0xx
Xxxxx, Xxxxxx 0, Xxxxxxx;
|
||
"IFRS"
|
means
the International Financial Reporting Standards promulgated from time to
time by the International Accounting Standards Board;
|
||
"Indemnified
Party"
|
has
the meaning set forth in Clause 10.3;
|
||
"Indemnity
Claim"
|
means
any claim by the Purchaser Protected Party pursuant to the indemnities in
Clause 10;
|
||
"Information
Technology"
|
means
software, hardware, networks, data bases and other analogous rights of any
description whatsoever, used by the Target Companies and necessary to
carry out the Media Pro Entertainment Business;
|
||
"ING Existing
Facility"
|
means
the facility agreement dated 12 November 2001 (as amended) among ING Bank
N.V., Media Pro Management, MPP, MPS, MPME, Pro Video as well as certain
other Affiliates of the Sellers;
|
7
"ING Security
Interests"
|
means
any security granted by the Target Companies in favour of ING Bank N.V. or
its affiliates pursuant to the ING Existing Facility;
|
||
"Intellectual
Property"
|
means
all rights in and in relation to patents, inventions, know-how, if any,
trade marks (including the Media Pro Trademarks as detailed in Schedule
6), trade xxxx applications, trade or business names,
domain names, utility models, copyrights (and all extensions and renewals
thereof), registered and unregistered design rights, databases, software,
know-how and other confidential information and trade secrets (including
customer and supplier lists) and other analogous rights of any description
whatsoever, whether registered or capable of registration, necessary to
carry out the Media Pro Entertainment Business;
|
||
"Longstop
Date"
|
means
December 31st,
2009, or such later date as the Parties may agree in
writing;
|
||
"Losses"
|
has
the meaning provided in Clause 10.1;
|
||
"Management
Accounts"
|
means
the monthly consolidated financial statements of the Media Pro
Entertainment Business, consisting of balance sheet, profit and loss
accounts and cash flow statements prepared in each case in XXX in
accordance with IFRS, and the notes, reports and statements required to be
annexed thereto audited as at December 31st,
2008;
|
||
"Material Adverse
Effect"
|
means
an effect that is or is reasonably likely to be materially adverse to the
assets, business, results of operations, financial condition or prospects
of the Media Pro Entertainment Business, including any acceleration of the
ING Existing Facility or enforcement against the ING Security Interests or
any enforcement action by any relevant Tax Authority against any of the
assets of the Target Companies;
|
||
"Media Pro
Authorizations"
|
means
all approvals, licenses, permits and authorizations required for lawfully
carrying out the Media Pro Entertainment Business;
|
||
"Media Pro Entertainment
Business" or "MPE"
|
means
the operations of the Target Companies and such other related businesses
owned or operated by the Target Companies and/or their
subsidiaries;
|
||
"Media Pro
Trademarks"
|
means
all trademarks using the Media Pro name that have been applied for and/or
registered by the Guarantor or any of its Affiliates, the particulars of
which are set out in further detail in Schedule
6;
|
||
"MP BV
Securities"
|
means
the following Ownership Interests held by MP BV:
(i)
2,998,818 shares of MPP (which represents a 62.52% Ownership Interest);
and
(ii) 80 shares of Pro Video (which represents a 0.05% Ownership Interest); |
8
"MPD"
|
means
Media Pro Distribution S.R.L., a Romanian legal person, registered under
the number J23/2135/2007, fiscal registration code CUI 00000000 and having
its registered address at Buftea, 0 Xxxxxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx of
Studiourile Media Pro XX, xxxx 000, Xxxxx Xxxxxx,
Xxxxxxx;
|
||
"MPE Romanian Transfer
Agreements"
|
means
the agreements on the transfer of the relevant Ownership Interests in each
of MPP, MPS, MPD, MPME and PRO VIDEO between the applicable Seller and the
Purchaser (together with any Affiliate of the Purchaser as the Purchaser
shall direct in writing to the applicable Seller in respect of some or all
of the Sale Securities) to be entered into on or before the Closing Date
in the Agreed Form;
|
||
"MPME"
|
means
Media Pro Music and Entertainment S.R.L., a Romanian legal person,
registered under the number J23/3300/2008, fiscal registration number CUI
00000000 and having its registered address at Buftea, 0 Xxxxxxxxxx Xxxxxx,
Xxxxxxx Xxxxxxxx of Studiourile Media Pro XX, xxxx 000, Xxxxx Xxxxxx,
Xxxxxxx;
|
||
"MPM
Securities"
|
means
the following Ownership Interests held by Media Pro
Management:
|
||
(i) |
1,797,395
shares of MPP (which represents a 37.48% Ownership
Interest);
|
||
(ii) | 450 shares of MPD (which represents a 90% Ownership Interest); | ||
(iii) | a 100% Ownership Interest in MPP Czech (which corresponds to the investment contribution to the registered capital of Media Pro Pictures s.r.o. in the amount of CZK 200,000); | ||
(iv) | 168,020 shares of Pro Video (which represents a 99.95% Ownership Interest); and | ||
(v) |
12
shares of MPME (which represents a 60% Ownership
Interest),
|
||
"MPP"
|
together with
such additional shares as may be issued in connection with any increase in
the equity of any such Target Company in connection with the conversion of
the Converted Shareholder Loans pursuant to Clause 3.1.14;
means Media Pro Pictures S.A., a Romanian legal person, registered
under the number J23/1058/2001, fiscal registration code CUI 9325987 and
having its registered address at Buftea, Studioului Street, Building 1 on
the set, 2nd
Floor, Ilfov County, Romania;
|
9
"MPP Czech"
|
means
Media Pro Pictures s.r.o., a limited liability company organized and
existing under the laws of the Czech Republic, identification number 278
62 950, having its registered address at Xxxxxx 0, Xxxxxxxxxxxx nám.
1078/5A, Postal Code 152 00, the Czech Republic,
registered in the Commercial Register maintained by the City Court in
Prague, Section C, Insert 122487, and having the registered capital in the
amount of CZK 200,000;
|
||
"MPP Czech Transfer
Agreement"
|
means
the Agreement on Transfer of the 100% Ownership Interest in MPP Czech
(which corresponds to the entire registered capital of MPP Czech of CZK
200,000) between Media Pro Management and the Purchaser to be entered into
on or before the Closing Date in the Agreed Form;
|
||
"MPS"
|
means
Studiourile Media Pro S.A., a Romanian legal person, registered under the
number J23/2525/2002, fiscal registration number 2788288 and having its
registered address at Buftea, 0 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx,
Xxxxxxx;
|
||
"Net Specific Related Parties’
Receivable/(Payable)"
|
means
the amount equal to the Net Specific Related Parties’ Receivable/(Payable)
as determined or agreed in accordance with the provisions of Schedule
9 and set out in the Adjustment Statement (which, for the avoidance
of doubt, shall exclude any Assigned Receivable that is subject to a
Set-Off);
|
||
"Ownership
Interests"
|
means
the shares, participation rights or other equity ownership interest of any
person;
|
||
"Party" or "Parties"
|
means
a party and collectively the parties to this Agreement, provided that,
references to "Party" or "Parties" shall only include CME Romania when the
term is used in Clause 9.6 and Clauses 13 to
27 (inclusive);
|
||
"Permitted
Contracts"
|
means
(i) any rental agreements with Specific Related Parties in effect on the
Execution Date; (ii) any communications services contracts with Specific
Related Parties in effect on the Execution Date; (iii) contracts,
agreements or arrangements for the provision of management, consulting or
similar services by Media Pro Management to any of the Target Companies in
effect as of the Execution Date; and (iv) agreements for the provision of
any other goods or services provided in the ordinary course on an arms'
length basis by the Sellers and their Affiliates (excluding the Target
Companies) to the Target Companies, provided that Permitted Contracts in
the aggregate may not obligate the Target Companies to payments of more
than EUR 100,000 per month;
|
||
"Programming
Library"
|
means
all programming, production, dubbing and other rights (including any
commitments or options to acquire or renew any such rights in the future)
held on behalf of the Media Pro Entertainment Business by the Target
Companies or otherwise, including any receivables due from the sale or
transfer of such rights;
|
10
"Pro
Video"
|
means
Pro Video S.R.L., a Romanian legal person, registered under the number
J23/247/2002, fiscal registration number CUI 00000000 and having its
registered address at Buftea, 0 Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx Xxxxx,
0xx
Xxxxx, Xxxxx Xxxxxx, Xxxxxxx;
|
||
"Purchase
Consideration"
|
means
the Cash Consideration, the Consideration Shares and the
Warrant;
|
||
"Purchaser Protected
Parties"
|
has
the meaning set forth in Clause 10.1;
|
||
"RCC"
|
means the Romanian Competition Council;
|
||
"Real Properties"
|
means
the properties owned or occupied by the Target Companies, particulars of
which are set out in Schedule
5;
|
||
"Related Dispute"
|
has the
meaning set forth in Clause 27.3;
|
||
"Remaining Shareholder
Loans"
|
means
such of the Shareholder Loans, other than the Converted Shareholder Loans,
in the aggregate maximum principal amount of XXX 18
million;
|
||
"Rodinka"
|
means
Takova normalni rodinka s.r.o., a limited liability company organized and
existing under the laws of the Czech Republic, with identification No. 279
32 702, having its registered seat at Xxxxxx 0, Xxxxxxxxx 0000/0, Xxxxxx
Code 120 00, registered in the Commercial Register maintained by the City
Court in Prague, Section C, Insert 127421;
|
||
"XXX"
|
means
the lawful currency of Romania;
|
||
"Sale
Securities"
|
means
the MPM Securities and the MP BV Securities;
|
||
"Set-Off"
|
means
the extinguishing of any Remaining Shareholder Loans by set off against any Assigned Receivable
pursuant to Clause 3.1.16;
|
||
"Set-Off Amount"
|
means the aggregate principal amount of Remaining Shareholder
Loans set off against any Assigned Receivable in any
Set-Off;
|
||
"Shareholder Loans"
|
means
the shareholder and related party loans set forth in Schedule
7 hereto, which shall all be assigned to Media Pro
Management pursuant to Clause 3.1.14;
|
||
"Specific Related Parties"
|
means those entities, in which the Guarantor has direct or
indirect ownership interests, having commercial relationships with MPE,
set out in Schedule 15;
|
||
"Subscription Agreement"
|
means
the Subscription Agreement between CME and the Sellers, to be entered into
on or before the Closing Date in the Agreed Form attached as Schedule
12;
|
11
"Supplementary Disclosure
Schedule"
|
means
the disclosures made as of the Closing Date against the Warranties of the
Sellers, which disclosures have been arranged in sections corresponding to
the numbering and lettering of the applicable Warranty in Schedule
3 (and which shall also apply to other Warranties only to
the extent that it is reasonably apparent from the face of the disclosure
that such disclosure would also apply to such other
Warranties);
|
||
"Target Companies"
|
means Domino, HMO, MPD, MPME, MPP, MPP Czech, MPS, Pro Video,
Rodinka and Zmena;
|
||
"Target Deficit"
|
means an amount equal to XXX 30 million;
|
||
"Tax" or "Taxes"
|
means any or all taxes, however denominated, including any
interest, penalties or other additions to tax that may become payable in
respect thereof, imposed by any Governmental Authority, which taxes shall
include all income or profits taxes, payroll and employee withholding
taxes, social and health insurance contributions, sales and use taxes, ad
valorem taxes, excise taxes, franchise taxes, business license taxes,
occupation taxes, real and personal property taxes, stamp taxes,
environmental taxes, withholding taxes, securing taxes, transfer taxes and
other governmental charges or obligations of the same or of a similar
nature to any of the foregoing which are required to be paid, withheld or
collected;
|
||
"Tax Authority"
|
means a Governmental Authority competent to impose or collect
Taxes;
|
||
"Third Party Claim"
|
means any Claim against any Purchaser Protected Party by any
person other than a Party to this Agreement;
|
||
"Total MPE Net Working Capital Deficit"
|
means
the amount set forth in Schedule
9;
|
||
"Trademark Assignments"
|
means the Deed of Assignment to be signed on or before the
Closing Date between the Purchaser or an Affiliate designated by it and
the Guarantor in respect of the assignment to the Purchaser or such
Affiliate of all right, title and interest to certain Media Pro Trademarks
not currently owned and registered in the name of a Target
Company;
|
||
"Transaction"
|
means
the transaction set out in Clause 2;
|
||
"Transaction Documents"
|
means this Agreement, the Business Names Assignment, the
Trademark Assignments, the Subscription Agreement and the Warrant, and all
other documents entered into pursuant to or in connection with the
foregoing;
|
||
"US Dollars" or "US$"
|
means the official currency for the time being of the United
States of America;
|
||
"Warrant "
|
means
the Common Stock Purchase Warrant in the Agreed Form attached as
Schedule 13;
|
||
"Warranties"
|
means
the warranties contained in Schedule
3 and each statement identified as a warranty in any other
Transaction Document;
|
||
"Working Hours"
|
means
the hours of 9:00 a.m. to 5:00 p.m. on a Business Day;
and
|
||
"Zmena"
|
means
Zmena s.r.o., a limited liability company organized and existing under the
laws of the Czech Republic, with identification No. 279 40 284, having its
registered seat at Xxxxxx 0, Xxxxxxxxx, Xxxxxxx 000/00, Xxxxxx Xxxx 000
00, registered in the Commercial Register maintained by the City Court in
Prague, Section C, Insert 128035.
|
12
1.2
|
In
construing this Agreement, unless otherwise
specified:
|
|
1.2.1
|
references
to Clauses and Schedules are to Clauses of, and Schedules to, this
Agreement;
|
|
1.2.2
|
references
to a "person"
shall be construed so as to include any physical or legal person, firm,
company or other body corporate, government, state or agency of a
Governmental Authority or any joint venture, association or partnership
(whether or not having separate legal
personality);
|
|
1.2.3
|
words
in the singular include the plural and in the plural include the singular,
and a reference to one gender includes a reference to the other
gender;
|
|
1.2.4
|
a
reference to any law, regulation, statute or statutory provision shall be
construed as a reference to the same as it may have been, or may from time
to time be, amended, modified or
re-enacted;
|
|
1.2.5
|
any
reference to a "day" (including within
the phrase "Business
Day") shall mean a period of 24 hours running from midnight to
midnight (except for the days of time change lasting 25 or 23 hours which
days shall be 25 or 23 hours
respectively);
|
|
1.2.6
|
references
to time are to Greenwich Mean Time;
|
|
1.2.7
|
a
reference to any other document referred to in this Agreement is a
reference to that other document as amended, varied, novated or
supplemented (other than in breach of the provisions of this Agreement)
from time to time;
|
|
1.2.8
|
headings,
sub-headings, recitals and titles are for convenience only and do not
affect the interpretation of this
Agreement;
|
|
1.2.9
|
references
to documents being in writing shall not include
e-mail;
|
|
1.2.10
|
general
words shall not be given a restrictive meaning by reason of the fact that
they are followed by particular examples intended to be embraced by the
general words;
|
13
|
1.2.11
|
the
words "include",
"includes", "including" and "in particular" shall be
deemed in each case to be followed by the words "without
limitation";
|
|
1.2.12
|
all
obligations and liabilities on the part of the Sellers are joint and
several and shall be construed accordingly;
and
|
|
1.2.13
|
references
to a "Party" or
the "Parties"
shall be construed as to include each of its permitted successors and
permitted assignees.
|
1.3
|
The
Schedules form an integral part of this Agreement and any reference to
this Agreement shall include the
Schedules.
|
2.
|
Transaction
and Determination of Purchase Consideration
|
2.1
|
Subject
to the terms and conditions herein, including the satisfaction of the
Conditions Precedent, the Sellers agree to sell, and the Purchaser
(relying on, amongst other things, the Warranties and undertakings in this
Agreement) agrees to purchase, the Sale Securities with full title
guarantee and the Intellectual Property in each case free from all
Encumbrances and together with all rights and entitlements now or
hereafter attaching thereto.
|
2.2
|
The
consideration for the purchase by the Purchaser of the Sale Securities, as
adjusted in accordance with Clause 2.3 (as so adjusted, the "Purchase Consideration")
shall be apportioned as follows:
|
|
2.2.1
|
the
payment of ten million US Dollars (US$10,000,000) in cash (the "Cash
Consideration");
|
|
2.2.2
|
the
issuance to the Sellers of two million two hundred thousand (2,200,000)
Class A Common Shares in CME (the "Consideration Shares");
and
|
|
2.2.3
|
the
issuance to the Sellers of the
Warrant.
|
2.3
|
Following
the Closing Date, the Estimated Adjustment Amount as detailed on the
Closing Statement shall be reviewed and adjusted in accordance with Schedule
10. In the event that the Adjustment Amount is a
deficit greater than the Target Deficit (as converted using the exchange
rates in effect on the date of delivery of the Closing Statement), the
Sellers shall reimburse in immediately available funds to an account
notified to the Sellers by the Purchaser the amount by which such deficit
exceeds the Target Deficit.
|
2.4
|
On
Closing the Cash Consideration shall be paid in immediately available
funds to the accounts of the Sellers notified to the Purchaser not less
than five (5) Business Days prior to the Closing Date in the amounts
described in Clause 2.5 and the Consideration Shares and the Warrant issued
to the Sellers in accordance with the notice provided pursuant to Clause
3.1.24.
|
2.5
|
The
parties agree that following the capitalization set out in Clause 3.1.14,
the division of the Purchase Consideration between the Sellers may be
adjusted to reflect each of the Sellers respective interests in the Target
Companies.
|
3.
|
Conditions
Precedent to Closing
|
3.1
|
The
obligation of the Purchaser to consummate the Closing is conditional on
the satisfaction or waiver of all of the following on or prior to the
Longstop Date:
|
14
|
3.1.1
|
the
Parties shall have received the written approvals (in a form reasonably
satisfactory to the Purchaser) of the RCC in connection with the
acquisition by the Purchaser of the Sale Securities, and such approval
shall be in full force and effect as at the Closing
Date;
|
|
3.1.2
|
each
of the Sellers shall have obtained all necessary written consents,
approvals or waivers (which for this purpose shall include the expiry of
any period following a notification such that consent is deemed to be
given or no consent is required) in relation to the execution and
performance by each of them of this Agreement in accordance with its terms
and each of the other Transaction Documents in accordance with their
respective terms;
|
|
3.1.3
|
each
of the Sellers shall have obtained all and any other authorizations,
consents and approvals of any Governmental Authority or third party (which
for this purpose shall include the expiry of any period following a
notification such that consent is deemed to be given or no consent is
required) for the consummation of the transactions contemplated by this
Agreement;
|
|
3.1.4
|
there
shall not be any injunction, decision, order or decree of any nature of
any court or Governmental Authority, or any proceeding pending or
threatened that could result in such an injunction, decision, order or
decree, restraining, prohibiting or preventing any aspect of the
Transaction;
|
|
3.1.5
|
there
shall not have been any action, or any statute, law or regulation enacted
by any Governmental Authority which would cause any Party to be unable to
consummate any aspect of the Transaction, make any aspect of the
Transaction illegal or prohibit, restrict or delay the consummation of any
aspect of the Transaction;
|
|
3.1.6
|
the
Purchaser or its Affiliate shall have received such opinions from its
financial advisor reasonably satisfactory to the Purchaser with respect to
the terms of the Transaction;
|
|
3.1.7
|
the
Purchaser shall have received the Closing Statement containing the
Estimated Adjustment Amount;
|
|
3.1.8
|
the
Purchaser shall have received a certificate, dated as of the Closing Date,
signed by duly authorized officers of each of the Sellers, as to the
continued and valid existence of the Target Companies, certifying and
attaching copies of:
|
|
(i)
|
the
organizational documents of each Target Company;
and
|
|
(ii)
|
each
of the documents set out in Clauses 3.1.2 and 3.1.3;
|
|
3.1.9
|
the
Sellers and their Affiliates shall have performed and complied in all
respects with all covenants and agreements required by this Agreement or
any of the other Transaction Documents to be performed or complied with by
the Sellers or their Affiliates on or prior to the Closing
Date;
|
|
3.1.10
|
the
Warranties given by the Sellers shall be true and accurate in all material
respects as of the Closing Date or, if not true, shall have been remedied
(at the cost of the Sellers) to the reasonable satisfaction
of the Purchaser;
|
|
3.1.11
|
no
event or circumstance, individually or in the aggregate, shall have
occurred or be outstanding that may have a Material Adverse
Effect;
|
15
|
3.1.12
|
all
Encumbrances over any immovable or movable property owned by the Target
Companies shall have been removed on or prior to the Closing Date and the
Purchaser shall use its reasonable endeavours to assist in the removal of
such Encumbrances, including at the sole discretion of the Purchaser,
providing a loan to the Target Companies to assist with the repayment of
any of their debt obligations;
|
|
3.1.13
|
subject
to the Purchaser providing funding to the Target Companies of
approximately Euro 18.5 million to repay the portion of the ING Existing
Facility that is attributable to the Target Companies, the Target
Companies ceasing to be parties, whether as borrowers or as guarantors, to
the ING Existing Facility, and being released by the bank of any and all
obligations under the ING Existing Facility and the ING Security Interests
in a manner reasonably satisfactory to the Purchaser and the Purchaser
shall use its reasonable endeavours to assist the Target Companies ceasing
to be parties to the ING Existing Facility, being released from any and
all obligations under the ING Existing Facility and the ING Security
Interests, including at the sole discretion of the Purchaser, providing
funding to the Target Companies to repay the portion of the ING Existing
Facility that is attributable to the Target Companies in order to assist
with such actions;
|
|
3.1.14
|
in
respect of the Shareholder Loans:
|
|
(i)
|
the
Guarantor procuring that any Shareholder Loans for which Media Pro
Management is not already a creditor, is assigned to Media Pro Management
by the entities set out in the column "Creditors" in Schedule 7 to Media
Pro Management by way of legal assignment signed by all parties thereto
and Media Pro Management, such that Media Pro Management shall become the
creditor for all Shareholder Loans;
|
|
(ii)
|
Media
Pro Management causing the Converted Shareholder Loans to be capitalized
by the cancellation of such Converted Shareholder Loans in exchange for
the issuance of new equity by the relevant Target Company;
and
|
|
(iii)
|
Media
Pro Management producing evidence reasonably satisfactory to the Purchaser
that such capitalization has been completed, including the registration of
such change in the equity of the relevant Target Company with the Romanian
Trade Registry;
|
|
3.1.15
|
the
Sellers shall have procured that Media Pro Management shall have delivered
to the Purchaser evidence satisfactory to the Purchaser of the assignment
to Media Pro Management of receivables owing from Specific Related Parties
to the Target Companies that would otherwise constitute all or any part of
the Gross Receivable by MPE from Specific Related Parties to be specified
in Schedule 9;
|
|
3.1.16
|
Media
Pro Management extinguishing such of the Remaining Shareholder Loans whose
aggregate principal amount is equal to the amount of any Gross Receivable
by MPE from Specific Related Parties in a maximum aggregate amount equal
to the Set-Off Amount and producing evidence reasonably satisfactory to
the Purchaser confirming the extinguishment of such remaining Shareholders
Loans and the corresponding Assigned
Receivables;
|
16
|
3.1.17
|
any
Remaining Shareholder Loans not extinguished in connection with Clause
3.1.16 above shall have been assigned to the Purchaser
or one of its Affiliates by way of an agreement signed by all the parties
to the relevant Remaining Shareholder Loan and the Purchaser or one of its
Affiliates and any Assigned Receivable that is not the subject of a
Set-Off and included in the Set-Off Amount shall be included in the
Closing Statement;
|
|
3.1.18
|
all
immovable property owned by MPS and/or MPP as described in Schedule
5 to this Agreement shall have been duly registered with the
relevant Romanian land book in accordance with Romanian
law;
|
|
3.1.19
|
the
Sellers shall have used their best efforts to obtain a written
confirmation from InterCom Rt. with respect to maintaining the continued
existence and full force and effect of that certain license agreement
between Pro Video and InterCom Rt. after the Closing of the Transaction
shall have been obtained, in a form acceptable to the
Purchaser;
|
|
3.1.20
|
Warner
Home Video shall have been duly notified with respect to the Transaction
and a written confirmation from Warner Home Video with respect to
maintaining the continued existence and full force and effect of that
certain Home Video Distribution License Agreement no.284/01.12.2006
between Warner Home Video and Pro Video shall have been obtained, in a
form acceptable to the Purchaser, it being acknowledged by the Purchaser
that Warner Home Video may, at its sole discretion, immediately terminate
the License Agreement in accordance with its
terms;
|
|
3.1.21
|
Panavision
International LP, Panavision Europe Limited and Xxx Lightning LTD shall
have been duly notified by the Sellers with respect to the Transaction and
written confirmation from such entities with respect to maintaining the
agreement to appoint representatives dated 21 June 2006 between such
respective entities and MPS shall have been obtained, in a form acceptable
to the Purchaser;
|
|
3.1.22
|
the
change in the shareholding structure of Domino, pursuant to which MPP
shall own fifty-two percent (52%), Xxxxx Xxxxxxx shall own twenty-four and
a half percent (24.5%) and Pov Xxxxxx Xxxxx Productions shall own
twenty-four and a half percent (24.5%), shall have been duly registered
with the Romanian Trade Registry;
|
|
3.1.23
|
the
Sellers shall have procured that Media Pro Music & Events s.r.l. shall
have transferred to MPME all assets necessary to operate the business of
MPME as carried on at the Closing Date;
and
|
|
3.1.24
|
subject
to Clause 2.5,
at least 20 days prior to Closing, the Sellers shall provide a written
notice to the Purchaser and CME setting out the number of Consideration
Shares and Warrant Shares that each Seller shall receive at
Closing.
|
3.2
|
The
obligation of the Sellers to consummate the Closing is conditional on the
satisfaction or waiver of all of the following on or prior to the Longstop
Date:
|
|
3.2.1
|
the
Purchaser shall have obtained all necessary written consents, approvals or
waivers in relation the execution and performance by the Purchaser of this
Agreement and each of the other Transaction Documents in each case in
accordance with their respective
terms;
|
17
|
3.2.2
|
there
shall not be any injunction, decision, order or decree of any nature of
any court or Governmental Authority, or any proceeding pending or
threatened that could result in such an injunction, decision, order or
decree, restraining, prohibiting or preventing any aspect of the
Transaction;
|
|
3.2.3
|
there
shall not have been any action, or any statute, law or regulation enacted
by any Governmental Authority which would cause any Party to be unable to
consummate any aspect of the Transaction, make any aspect of the
Transaction illegal or prohibit, restrict or delay the consummation of any
aspect of the Transaction;
|
|
3.2.4
|
the
Purchaser and its Affiliates shall have performed and complied in all
respects with all covenants and agreements required by this Agreement or
any of the other Transaction Documents to be performed or complied with by
the Purchaser or its Affiliates on or prior to the Closing
Date;
|
|
3.2.5
|
the
Warranties given by the Purchaser shall be true and accurate in all
material respects as of the Closing Date or, if not true, shall have been
remedied (at the cost of the Purchaser) to the reasonable satisfaction of
the Sellers;
|
3.3
|
Insofar
as permitted under applicable law, the Purchaser may, in its sole
discretion, at any time waive, in whole or in part, conditionally or
unconditionally, any of the Conditions Precedent set out in Clauses 3.1.1 to
3.1.22 (inclusive) by notice in writing to the
Sellers.
|
3.4
|
Insofar
as permitted under applicable law, the Sellers may, in their sole
discretion, at any time waive, in whole or in part, conditionally or
unconditionally, any of the Conditions Precedent set out in Clauses 3.2.1 to
3.2.5 (inclusive) by notice in writing to the
Purchaser.
|
3.5
|
The
Parties shall keep each other fully informed and up to date with respect
to their progress toward the satisfaction of the Conditions
Precedent.
|
3.6
|
The
Purchaser and the Sellers shall actively and positively cooperate with
respect to the satisfaction of the Condition Precedent set out in Clause
3.1.1 and in
particular:
|
|
(i)
|
the
Sellers shall provide all information and documents requested by the
Purchaser in order to facilitate the prompt submission of all
notifications and submissions to the RCC;
and
|
|
(ii)
|
the
Sellers shall not, without the prior approval of the Purchaser (which
approval shall not be unreasonably withheld or delayed), communicate with
the RCC or make any filing, submission or notification in connection with
the Transaction.
|
3.7
|
The
Sellers shall use their best endeavors to satisfy the Conditions Precedent
for which they are responsible but in the event that the Sellers becomes
aware that they will not be able to satisfy the Conditions Precedent on or
before the Longstop Date, the Sellers shall promptly, and in any event not
less than three (3) Business Days before the Longstop Date, give written
notice to the Purchaser of their inability to satisfy such Conditions
Precedent.
|
18
3.8
|
If
any Conditions Precedent have not been satisfied (or have not been waived
in accordance with Clauses 3.3 or
3.4)
on or before the Longstop Date, this Agreement shall, unless otherwise
agreed by the Parties in writing, terminate and the provisions of Clause 9
shall apply.
|
4.
|
Closing
|
4.1
|
The
Parties shall cause the Closing to occur promptly after the date on which
the last of the Conditions Precedent have been satisfied or waived in
accordance with this Agreement, but in any event no later than either: (i)
the end of the month in which the Conditions Precedent are satisfied or
waived provided that the Conditions Precedent are satisfied or waived
before the 21st calendar day of that month; or (ii) the end of the
following month if the Conditions Precedent are satisfied or waived after
the 21st calendar day of a month (the "Closing
Date").
|
4.2
|
The
Closing shall take place on the Closing Date at the offices of Media Pro
Management at 000 Xxxxx Xxxxxxxxxxxx Xxx., 6th Floor, xxxxxx 0, Xxxxxxxxx,
Xxxxxxx , or at such other location as agreed by the
Parties.
|
4.3
|
The
Sellers shall deliver the Closing Statement to the Purchaser at least
three (3) Business Days prior to the
Closing.
|
4.4
|
The
Sellers shall deliver a substantially final version of the Supplementary
Disclosure Schedule to the Purchaser at least three (3) Business Days
prior to the Closing.
|
4.5
|
All
deliveries of documents and actions contemplated by this Clause to take
place at Closing shall be deemed to have taken place simultaneously as
part of a single transaction, none of which shall be considered to have
taken place unless and until all such actions shall have taken place,
provided that the
Purchaser shall have no obligation to pay or effect any of the Purchase
Consideration until all Conditions Precedent have been satisfied or
waived, and all of the actions of the Sellers set out in Clauses 4.6 and 4.7 have been
satisfied.
|
4.6
|
On
the Closing Date, the Sellers shall deliver or shall procure the delivery
to the Purchaser of:
|
|
4.6.1
|
(i)
|
all
necessary instruments of transfer for each Target Company in respect of
the Sale Securities, including without limitation, the MPP Czech Transfer
Agreement and the MPE Romanian Transfer Agreements (governed by the law of
the relevant jurisdiction applicable to such transfer), duly executed and
completed by the corresponding Seller in favour of the Purchaser (or in
favour of any Affiliate of the Purchaser as the Purchaser shall direct in
writing to the applicable Seller in respect of some or all of the Sale
Securities), together with the applicable resolutions adopted pursuant to
Clause 4.7;
|
|
(ii)
|
any
and all duly executed powers of attorney or other authorities under which
any of the instruments of transfer have been executed;
and
|
|
(iii)
|
further
to Clauses 3.1.2 and 3.1.3,
certified copies of all other necessary authorizations, waivers and
consents in respect of the sale of the MPM Securities and MP BV Securities
and the execution of the instruments of transfer in respect of
them;
|
19
|
4.6.2
|
a
closing certificate in the form attached hereto in Schedule
2 and, if reasonably requested by the Purchaser, other
confirmations or evidence of the satisfaction of the Conditions
Precedent;
|
|
4.6.3
|
a
certified copy of the updated registers of Ownership Interests of each
of:
|
|
(i)
|
MPP
evidencing its 10% Ownership Interest in
MPD;
|
|
(ii)
|
MPP
evidencing its 81.47% Ownership Interest in
MPS;
|
|
(iii)
|
MPP
evidencing its 51% Ownership Interest in
Domino;
|
|
(iv)
|
Pro
Video evidencing its 40% Ownership Interest in
MPME;
|
|
(v)
|
Pro
Video evidencing its 100% Ownership Interest in
HMO;
|
|
(vi)
|
MPP
Czech evidencing its 51% Ownership Interest in
Rodinka;
|
|
(vii)
|
MPP
Czech evidencing its 51% Ownership Interest in
Zmena,
|
subject
to the Ownership Interests set out in this Clause 4.6.3
being amended pursuant to the capitalization of the Converted Shareholder Loans
as contemplated in Clause 3.1.14
of this Agreement;
|
4.6.4
|
one
(1) counterpart of each of the Trademark Assignments signed by the
Guarantor and Media Pro Music & Events SRL (as
applicable);
|
|
4.6.5
|
one
(1) counterpart of the Business Name Assignment signed by the Sellers and
the Guarantor;
|
|
4.6.6
|
one
(1) counterpart of the Subscription Agreement duly executed by the
Sellers;
|
|
4.6.7
|
the
Supplementary Disclosure Schedule, if
any;
|
|
4.6.8
|
written
resignations of each of the directors and statutory executives of any
Target Company designated by the Purchaser to the Sellers at least five
(5) days before the Closing Date to take effect on the Closing Date, in a
form satisfactory to the Purchaser;
and
|
|
4.6.9
|
signed
notices of termination from each of Media Pro Management and MP BV with
regard to any contracts, agreements or arrangements for the provision of
management, consulting or similar services by Media Pro Management or MP
BV to any of the Target Companies, effective as of the Closing Date,
except: (i) in relation to the Permitted Contracts; or (ii) where the
terms of any extension of such agreements or arrangements are approved by
the Board of Directors of CME prior to entry into such
extension.
|
4.7
|
On
or before the Closing Date, the Sellers shall procure that a shareholders
meeting of each of MPP, MPD, Pro Video and MPME are held to decide on the
following matters:
|
|
4.7.1
|
approving
the execution of the Transaction as well as any relevant documents to
ensure the registration of the transfer of the Sale Securities from the
Sellers to the Purchaser or any of its
Affiliates;
|
20
|
4.7.2
|
acknowledging
the waiver by the current shareholders of each relevant Target Company of
their pre-emption rights on the sale of shares as provided under the
constitutive acts of such Target
Companies;
|
|
4.7.3
|
revoking
as a result of their resignation the directors and statutory executives as
indicated by the Purchaser at least five days before the Closing
Date;
|
|
4.7.4
|
appointing
the individuals designated by the Purchaser at least five (5) Business
Days before the Closing Date;
|
|
4.7.5
|
appointing
internal auditors for the Target
Companies;
|
|
4.7.6
|
approving
the restated constitutive acts of the Target Companies evidencing the new
shareholding pursuant to the Closing and all other amendments to the
respective constitutive acts agreed
herein;
|
|
4.7.7
|
granting
powers of attorney for the person(s) who is/are empowered to sign and
execute all Transaction related documents;
and
|
|
4.7.8
|
with
respect to MPP only, ratifying all prior shareholder resolutions taken in
meetings where certain shareholders of MPP have been represented by the
directors of MPP.
|
4.8
|
On
the Closing Date, the Purchaser shall, or shall procure that its relevant
Affiliate shall:
|
|
4.8.1
|
pay
the Cash Consideration;
|
|
4.8.2
|
deliver,
in accordance with the written notice delivered pursuant to Clause 3.1.24 (unless delivery in accordance with the
aforementioned written notice is contrary to any applicable law,
regulation or direction of any relevant stock exchange or regulator, in
which case the delivery shall be in accordance with such law, regulation
or direction and where there is discretion that could be exercised, such
discretion to be exercised only by the Purchaser and
CME):
|
|
(i)
|
one
(1) counterpart of the Subscription Agreement duly executed by CME to each
of the Sellers;
|
|
(ii)
|
the
Warrant to the Sellers;
|
|
(iii)
|
certificates
representing two million two hundred thousand (2,200,000) Class A Common
Shares, evidencing the number of shares in CME issued to the Sellers, each
registered in such Seller's name;
|
|
4.8.3
|
deliver
one (1) counterpart of each of the Trademark Assignments signed by the
Purchaser or an Affiliate of the Purchaser (as
applicable);
|
|
4.8.4
|
deliver
one (1) counterpart of the Business Name Assignment signed by the
Purchaser or an Affiliate of the Purchaser (as applicable);
and
|
|
4.8.5
|
deliver
a closing certificate in the form attached hereto in Schedule
2.
|
4.9
|
On
the Closing Date, CME Romania shall
deliver:
|
21
|
4.9.1
|
all
necessary instruments of transfer (governed by the law of the relevant
jurisdiction applicable to such transfer) in respect of the transfer of
its 8.7% Ownership Interest in Media Pro Management and its 10% Ownership
Interest in MP BV, duly executed and completed by CME Romania in favour of
the Guarantor or a party designated by
it;
|
|
4.9.2
|
any
and all duly executed powers of attorney or other authorities under which
any of the instruments of transfer have been executed to the Guarantor or
a party designated by it; and
|
|
4.9.3
|
one
(1) counterpart of a deed of termination and release in relation to the
pledge agreement between CME Romania and the Guarantor dated August 11,
2006 to the Guarantor.
|
4.10
|
On
the Closing Date, the Purchaser shall procure that Xxxxxx Xxxxx shall be
appointed as Executive Chairman of the company directly owning or
controlling Media Pro Entertainment Business for an initial term of five
(5) years effective from the Closing, which term may be renewed by the
Purchaser in its sole discretion.
|
4.11
|
If
Closing does not take place by 5:00 p.m. on the Closing Date (or such
later time as the Parties may agree in writing) because the Sellers fail
to comply with any of their obligations under this Clause, the Purchaser
may, in its sole discretion, by written notice to the
Sellers:
|
|
4.11.1
|
postpone
Closing to a later date (being a date not later than the Longstop Date);
or
|
|
4.11.2
|
terminate
this Agreement, in which case the provisions of Clause 9
shall apply.
|
5.
|
Obligations
Prior to Closing
|
5.1
|
From
and including the Execution Date and up to and including the earlier of
the Closing Date and the Longstop Date, the Sellers shall (on their own
behalf and on behalf of any
Affiliates):
|
|
5.1.1
|
procure
that the Media Pro Entertainment Business shall be conducted in the
ordinary course;
|
|
5.1.2
|
use
their respective best efforts to preserve and protect the assets
(including the Intellectual Property and the Real Properties) necessary
for the operation of the Media Pro Entertainment Business and in
particular maintain in force all insurance policies in respect thereof and
not knowingly default under any provision thereof, and duly give notice to
the Purchaser of and maintain any Claims under any such insurance
policies;
|
|
5.1.3
|
procure
that each of the Target Companies will not undertake any action that may
constitute a breach of any of the Media Pro Authorizations or any other
applicable licences or authorizations necessary for the operation of the
Media Pro Entertainment Business;
|
|
5.1.4
|
not
dispose of or grant any option or right of pre-emption in respect of any
part of their assets, including, without limitation, the Ownership
Interests in the Media Pro Entertainment
Business;
|
22
|
5.1.5
|
not
grant, issue or redeem any mortgage or other Encumbrance, Ownership
Interest, debenture or other security, or give any guarantee or indemnity
or otherwise agree to secure any obligation of a third party (except, in
respect of any indemnity, in the ordinary course of business), or create
any Encumbrance over any of its assets or undertakings or agree to do any
of the same;
|
|
5.1.6
|
not
create, allot, issue, acquire, repay or redeem any capital or any capital
convertible into Ownership Interests (other than pursuant to Clause 3.1.14), or merge or consolidate with a corporate body or any
other person, enter into any demerger transaction or agree, arrange or
undertake to do any of those
things;
|
|
5.1.7
|
provide
the Purchaser with full access to such information and personnel as the
Purchaser shall reasonably request in connection with the acquisition of
the Media Pro Entertainment Business, the Sale Securities and the
transactions contemplated hereby;
|
|
5.1.8
|
procure
that the companies (including all Target Companies) operating within the
Media Pro Entertainment Business shall not do any of the items described
in Clause 5.2 without the prior written consent of the
Purchaser;
|
|
5.1.9
|
not
cause or do any act or thing, the commission of which would constitute a
breach of any Warranty contained herein or which would make any such
Warranty inaccurate at the Closing
Date;
|
|
5.1.10
|
on
becoming aware prior to the Closing Date of the occurrence of any matter,
event or circumstance which would constitute a breach of any of the
Warranties hereunder or which would make any of such Warranties inaccurate
at the Closing Date, promptly give written notice of such matter, event or
circumstance to the Purchaser before the Closing Date with sufficient
details to enable the Purchaser to assess accurately the impact of such
matter, event or circumstance and the Sellers shall use their best
endeavors to promptly remedy the same;
and
|
|
5.1.11
|
take
such other actions as are required in order to consummate the Transaction
and to give full effect to this
Agreement.
|
5.2
|
The
Sellers shall procure that each of the Target Companies, during the period
from and including the Execution Date up to and including the Closing
Date, shall not, without the prior written consent of the
Purchaser:
|
|
5.2.1
|
take
any action that is likely to have a Material Adverse
Effect;
|
|
5.2.2
|
permit
any Target Company to enter into, extend or amend any contract or
commitment, or series of related contracts or commitments, with any
Affiliate or any other connected or related person with a value exceeding
one hundred thousand US Dollars (US$100,000) or its equivalent in any
other currency;
|
|
5.2.3
|
borrow
any additional money, draw down on any existing facilities or make any
payments out of or drawings on their bank account(s) (except routine or
committed payments) or amend or agree to amend (other than in compliance
with the terms of this Agreement) the terms of any borrowing or
indebtedness in the nature of borrowing from third parties or Affiliates.
For the avoidance of doubt, the restrictions set out in this Clause 5.2.3 shall apply to any actions in relation to the ING
Existing Facility;
|
23
|
5.2.4
|
grant
or terminate any lease or third party right in respect of any of the
assets owned by or on behalf of the Media Pro Entertainment
Business;
|
|
5.2.5
|
enter
into any leasing, hire purchase or other agreement or arrangement for
payment on deferred terms except in the ordinary course of
business;
|
|
5.2.6
|
make
any material change in the terms and conditions of employment or pension
or other benefits of its employees or the terms of any consulting
agreement (other then those which would be required by law and those made
pursuant to any annual salary review, such review being consistent with
past practices) or terminate the employment of any of the employees or
consultant (except for cause or pursuant to any Transaction
Document);
|
|
5.2.7
|
enter
into any agreement or arrangement with any unaffiliated third party other
than in the ordinary course of business consistent with past practice or,
except for Permitted Contracts, enter into any contract, agreement or
relationship with a Specific Related
Party;
|
|
5.2.8
|
declare,
make or pay any dividend or other distribution;
or
|
|
5.2.9
|
save
only as may be necessary to give effect to this Agreement or to the extent
the Purchaser has consented or agreed, cause or do any act or thing the
commission of which would constitute a breach of any of the Warranties
herein or which would make any of such Warranties inaccurate at the
Closing Date.
|
5.3
|
CME
Romania shall not, from and including the Execution Date up to and
including the Closing Date, dispose of or grant any option or right of
pre-emption or any other Encumbrance in respect of any of the
shares held by CME Romania in MPM and MP BV,
respectively.
|
6.
|
Warranties
|
6.1
|
Except
to the extent fairly disclosed in the Disclosure Schedule, the Sellers
jointly and severally warrant to the Purchaser that each
statement:
|
|
6.1.1
|
applicable
to them contained in Part A of Schedule
3 is true and accurate in every respect and not misleading as of
the Execution Date; and
|
|
6.1.2
|
contained
in Part B of Schedule 3 is true and correct in every respect and not
misleading as of the Execution
Date.
|
6.2
|
Except
to the extent fairly disclosed in the Supplementary Disclosure Schedule,
the Sellers jointly and severally warrant to the Purchaser that each
statement:
|
|
6.2.1
|
applicable
to them contained in Part A of Schedule
3 is true and accurate in every respect and not misleading as of
the Closing Date; and
|
|
6.2.2
|
contained
in Part B of Schedule 3 is true and correct in every respect and not
misleading as of the Closing Date.
|
6.3
|
The
Purchaser warrants to the Sellers that each statement applicable to it
contained in Part A of Schedule
3 is true and accurate in every respect and not misleading as of
the Execution Date.
|
24
6.4
|
The
Purchaser warrants to the Sellers that each statement applicable to it
contained in Part A of Schedule
3 is true and accurate in every respect and not misleading as of
the Closing Date.
|
7.
|
Sellers'
Undertakings and
Post-Closing Covenants
|
7.1
|
The
Parties acknowledge that the Purchaser and the other Affiliates of CME are
subsidiaries of a U.S. reporting company and as such will be required to
comply with certain U.S. securities, anti-money laundering,
anti-corruption and other applicable laws. In particular, the Parties
acknowledge and the Sellers and their Affiliates agree
that:
|
|
7.1.1
|
no
member of the Media Pro Entertainment Business will use or offer to use,
directly or indirectly, any funds for any unlawful contribution, gift,
entertainment or other unlawful payment to any foreign or domestic
government official or employee, or any political party, party official,
political candidate or official of any public international organization
in violation of any applicable law, including, as applicable, the U.S.
Foreign Corrupt Practices Act of 1977, as amended;
and
|
|
7.1.2
|
each
member of the Media Pro Entertainment Business has and will enforce the
anti-bribery compliance program of CME, which is designed to detect and
prevent any violations of applicable anti-bribery laws and which includes
the adoption and implementation of a policy against violations of
applicable anti-bribery laws, periodic training of appropriate officers
and employees, appropriate due diligence requirements on the retention and
oversight of agents and business partners, periodic testing of the
effectiveness in detecting and reducing violations of applicable
anti-bribery laws and the internal controls system and compliance policy
of CME and reporting if any of the directors, officers, senior managers or
agents of the Media Pro Entertainment Business becomes a foreign or
domestic government official or employee, except for such an official or
employee in a governmental position that has no relevance to the Media Pro
Entertainment Business.
|
7.2
|
The
Sellers undertake to the Purchaser not to make or pursue any claim against
the Target Companies or their respective subsidiaries or their respective
directors, officers, employees or agents in connection with assisting the
Sellers in giving the Warranties and/or entering into this Agreement or
any documents entered into pursuant to this
Agreement.
|
7.3
|
The
Sellers covenant with the Purchaser that they shall not, and procure that
their Affiliates shall not, for a period of five (5) years from the date
of this Agreement and without the prior written consent of the
Purchaser:
|
|
(i)
|
within
any territory in which CME or its Affiliates is operating or intends to
operate during such period:
|
|
(a)
|
compete
directly or indirectly with the Media Pro Entertainment
Business;
|
|
(b)
|
enter
directly or indirectly into negotiations, or enter into any contractual or
other business arrangement with any third party to offer services that may
compete with the Media Pro Entertainment
Business;
|
25
|
(c)
|
directly
or indirectly own, manage, operate, participate in, consult with or work
for any business which is engaged in the same business as the Media Pro
Entertainment Business;
|
|
(d)
|
attempt
to induce, entice or solicit any current consignors, suppliers,
contractors, consultants or customers away, in whole of part, from the
Purchaser; or interfere or attempt to interfere with relations between the
Purchaser and such consignors, suppliers, contractors, consultants or
customers; and
|
|
(e)
|
do
or say anything which is harmful to the goodwill of the Media Pro
Entertainment Business which may lead a person who has dealt with any of
the Target Companies at any time during the twenty-four (24) months prior
to the date of this Agreement to cease to deal with the Target Companies
on substantially equivalent terms to those previously offered or at all;
and
|
|
(ii)
|
hire,
make an offer, solicit, recruit or otherwise endeavour to entice away from
the Purchaser, its Affiliates or any of the Target Companies or their
Affiliates any person who is a director, officer or employee of the
Purchaser, its Affiliates or any of the Target Companies or their
Affiliates, whether or not such person would commit a breach of contract
by reason of leaving service,
|
and the
Sellers further covenant with the Purchaser that they shall not, and procure
that their Affiliates shall not, assist any other person to do any of the
foregoing acts.
7.4
|
Each
and every obligation under Clause 7.3 shall be treated as a separate obligation and shall
be severally enforceable as such.
|
8.
|
Purchaser
Undertakings & Post-Closing
Covenants
|
The
Purchaser shall, and shall procure that its Affiliates shall,
ensure:
|
8.1.1
|
that
CME, to the extent permitted by applicable law, maintains the Media Pro
business name and brands assigned pursuant to the relevant Trademark
Assignments and operates the content division of CME under such business
name;
|
|
8.1.2
|
the
timely performance of the obligations of CME under the Film Production and
Financing Terms and the post-closing items set out in further detail in
Schedule 8;
|
|
8.1.3
|
that
MPP, MPS and any other Target Company provide support to Universitatea de
Media in Bucharest, Romania at substantially the same levels as are
provided by such Person on the Execution Date;
and
|
|
8.1.4
|
that
MPS continues to preserve the inherited archive of costumes and set
designs and props existing as on the Execution Date from productions
undertaken by MPS prior to its privatization in 1997 in substantially the
same manner as on the Execution
Date.
|
9.
|
Termination
|
9.1
|
This
Agreement may be terminated at any time by mutual written consent of the
Parties.
|
26
9.2
|
In
the event that:
|
|
9.2.1
|
the
substantially final version of the Supplementary Disclosure Schedule that
is delivered pursuant to Clause 4.4 contains or refers to a fact or matter;
or
|
|
9.2.2
|
in
the period between the Execution Date and Completion Date, the Purchaser
becomes aware of or is notified pursuant to Clause 5.1.10 of a fact or
matter,
|
that in
the reasonable opinion of the Purchaser is materially adverse to the assets,
business, results of operations, financial condition or prospects of the Media
Pro Entertainment Business; the Purchaser shall have the right to terminate this
Agreement subject to the Purchaser immediately notifying the Sellers that the
Purchaser has formed such an opinion and for a period of twenty Business Days
after service of such notice, the parties shall negotiate in good faith to avoid
termination of this Agreement. In the event that the parties fail to
agree the terms on which termination of this Agreement would be avoided within
such period, the Purchaser shall be entitled at its sole discretion to proceed
with the termination of this Agreement immediately upon notice to the
Sellers. For the avoidance of doubt, any fact or matter referred to
in Clauses 9.2.1 or
9.2.2 that in the reasonable opinion of the Purchaser shall
be considered to be materially adverse to the assets, business, results of
operations, financial condition or prospects of the Media Pro Entertainment
Business shall include any event, act or omission that will result in a
liability or loss of EUR 100,000 to Media Pro Entertainment Business that is not
compensated or remedied by the Sellers to the satisfaction of the Purchaser
within twenty Business Days of the delivery of the notice referred to in this
Clause 9.2.
9.3
|
Without
prejudice to Clause 9.1 and subject to Clause 9.2,
this Agreement may be
terminated:
|
|
9.3.1
|
at
any time prior to the Closing Date by the Sellers if there has been a
material breach of any covenant, warranty or other obligation of the
Purchaser hereunder or under any other Transaction Document and such
breach shall not have been cured with five (5) Business Days of the
Purchaser becoming aware of such breach or after receipt of notice from
the Sellers specifying the breach and requesting that such breach be
remedied; and
|
|
9.3.2
|
at
any time prior to the Closing Date by the Purchaser, if there has been a
material breach of any covenant, representation or warranty or other
obligation of the Sellers hereunder or under any other Transaction
Document and such breach shall not have been cured with five (5) Business
Days of the Sellers becoming of such breach or after receipt of notice
from the Purchaser specifying the breach and requesting that such breach
be remedied.
|
9.4
|
This
Agreement shall terminate automatically on the Longstop Date if any
Condition Precedent shall not have been satisfied or waived prior to such
date as a result of:
|
|
9.4.1
|
any
action or failure to act on the part of the Purchaser (other than any such
action or failure to act that is due to the gross negligence or willful
misconduct of the Seller); and
|
|
9.4.2
|
any
action or failure to act on the part of the Seller (other than any such
action or failure to act that is due to the gross negligence or willful
misconduct of the Purchaser).
|
27
9.5
|
Clauses
6 and 10 to
27 (inclusive) and Schedule
3 shall survive termination of this
Agreement.
|
9.6
|
Each
Party's further rights and obligations under this Agreement shall cease
immediately on termination of this Agreement, but termination shall not
affect a Party's rights and obligations which have accrued prior to the
date of termination or rights and obligations under any of the surviving
provisions set out in Clause 9.5.
|
10.
|
Indemnity
|
10.1
|
The
Sellers shall indemnify and keep indemnified the Purchaser and its
Affiliates and subsidiaries, and their respective representatives,
officers, directors, shareholders and Controlling persons (the "Purchaser Protected
Parties") from and against all costs, Claims, demands, damages,
expenses, penalties, fines, liabilities, losses and diminution in value
(including the fees and expenses of investigation and counsel), whether or
not involving a Third Party Claim, (collectively, "Losses") whatsoever
arising out of or in connection
with:
|
|
10.1.1
|
any
false, incorrect or misleading Warranty made by the Sellers or any of
their Affiliates;
|
|
10.1.2
|
any
breach or non-fulfillment of any covenant or undertaking in this Agreement
or any other Transaction Documents by the Sellers or any of its
Affiliates;
|
|
10.1.3
|
any
and all liability whatsoever, however imposed, whether paid by the
Purchaser, its Affiliates or any of the Target Companies in respect of any
fraudulent or criminal act or omission by the Sellers or any of their
Affiliates or any officer, director, representative, employee or agent
thereof in respect of the ownership and operation of the Media Pro
Entertainment Business; and
|
|
10.1.4
|
any
items subject to indemnifications as identified in Clauses 10.2.
|
10.2
|
In
addition to the foregoing provisions of Clause 10.1,
without limiting the generality of such provisions, the Sellers agree to
indemnify and hold harmless the Purchaser Protected Parties against any
Losses in respect of:
|
|
10.2.1
|
any
and all liability whatsoever, however imposed (including any Claim
asserted or deficiency assessed against or collected from or paid by the
Purchaser or the Target Companies), in respect of any Taxes (including any
penalties, interest and fines thereon, whenever accrued in respect of the
Media Pro Entertainment Business) of the Target Companies for any and all
periods up to and including the period ending on the Closing Date in
respect of the Media Pro Entertainment Business (including in connection
with any Tax return filed after the Closing Date in respect of the Media
Pro Entertainment Business for any period prior to the Closing Date),
except for payments in respect of VAT, withholding tax, CIT and PIT and
any penalties in respect thereon that are properly provided for in the
Management Accounts dated as at 30 June
2009;
|
|
10.2.2
|
any
Claims by or on behalf of any owner or former owner of interests in the
capital of the Target Companies in respect of the ownership of Ownership
Interests of the Target Companies in connection with an act, omission,
event or circumstance occurring or existing on or prior to the Closing
Date;
|
28
|
10.2.3
|
except
as fairly disclosed in paragraph 10.2.3 of Schedule
4, any Third Party Claims in respect of the Intellectual Property
of the Media Pro Entertainment Business or the Media Pro Trademarks in
connection with an act, omission, event or circumstance occurring or
existing on or prior to the Closing
Date;
|
|
10.2.4
|
except
as fairly disclosed in paragraph 10.2.4 of Schedule
4, any court action or proceeding, arbitration,
litigation, investigation or suit (whether civil, criminal or
administrative) by any Governmental Authority in respect of any act,
omission, event or circumstance relating to the period on or before the
Closing Date in respect of the Media Pro Entertainment Business;
and
|
|
10.2.5
|
any
revocation, cancellation, restriction or impairment to any of the Media
Pro Authorizations arising from an act, omission, event or circumstance
that occurred or was in existence on or before the Closing
Date.
|
10.3
|
Any
Claim under Clause 10.1 or
10.2 shall be asserted by written notice from the
Purchaser Protected Party asserting such Claim (the "Indemnified Party") to
the Party from whom indemnification is
sought.
|
10.4
|
The
notice referred to in Clause 10.3 shall include information regarding the nature and
basis for the Indemnity Claim and the amount of Losses demanded
(estimating, to the extent reasonably practicable, the Indemnified Party's
calculation of the Losses thereby suffered by
it).
|
11.
|
Limitations
on Liability
|
11.1
|
The
Sellers shall not be liable for a Claim in respect
of:
|
|
11.1.1
|
a
Warranty contained in paragraph 10 of
Schedule 3 unless the Purchaser has notified the
Sellers or either of them of such Claim not later than three (3) months
after the expiry of the period specified by law during which an assessment
of that liability to Tax may be issued by the relevant Tax Authority;
and
|
|
11.1.2
|
any
other Warranty unless the Purchaser has notified the Sellers or either of
them of the Warranty Claim within 36 months of the Closing
Date.
|
11.2
|
The
provisions of Clause 11.1 shall not apply in any way to the Warranties
contained in Part A of Schedule
3 or in paragraphs 1,
14 or
17 of
Part B of Schedule
3.
|
11.3
|
The
maximum liability of the Sellers to the Purchaser and its Affiliates for
any Losses arising from or related
to:
|
|
11.3.1
|
any
false, incorrect or misleading Warranty;
and
|
|
11.3.2
|
any
other breach of a term of this Agreement and indemnification relating to
such matters,
|
shall be
the amount of Losses suffered.
11.4
|
Nothing
in this Clause 11 shall have the effect of limiting the liability of
the Sellers in respect of any Claim arising as a result of fraud, willful
misconduct or willful concealment.
|
29
11.5
|
The
Sellers shall not be liable for a Claim in respect of a
Warranty:
|
|
11.5.1
|
to
the extent that the Purchaser has received payment under an valid
insurance policy in respect of such
Claim;
|
|
11.5.2
|
if
the Claim results from an act by the Sellers undertaken at the specific
request or direction of the Purchaser provided that
that the Sellers have not deviated from that specific request or
direction;
|
|
11.5.3
|
to
the extent the matter giving rise to the Claim would not have arisen but
for the passing of, or change in applicable law occurring after the
Closing Date;
|
11.6
|
The
Purchaser shall not be entitled to recover more than once in respect of a
particular Claim.
|
12.
|
Guarantee
|
12.1
|
In
consideration of the Purchaser entering into this Agreement, the Guarantor
irrevocably and unconditionally guarantees to the Purchaser the due and
punctual performance of all present and future liabilities and obligations
of the Sellers contained in or arising from Clauses 2, 3, 4, 5, 6, 7, 10
and 23 and Schedule 3 of this Agreement and Sections 2, 4 and 6 of
the Subscription Agreement (the "Guaranteed
Obligations").
|
12.2
|
If
for any reason the Sellers fail to observe the timely performance of any
or all of the Guaranteed Obligations, the Guarantor will within ten
Business Days after receiving a demand in writing from or on behalf of the
Purchaser fulfil or procure fulfilment of all such Guaranteed Obligations
of the Sellers in compliance with the terms of this Agreement and so that
the same benefits shall be conferred on the Purchaser as they would have
received if such Guaranteed Obligations had been duly performed and
satisfied by the Sellers in a timely manner and will indemnify and keep
indemnified the Purchaser from and against all liabilities, damages,
costs, claims, losses and expenses incurred or suffered by the Purchaser
in connection with the failure by the Sellers to observe the timely
performance of any such Guaranteed
Obligation.
|
12.3
|
The
Guarantor's obligations under Clauses 12.1 to
12.2 (inclusive) are continuing obligations and are not
satisfied, discharged or affected by an intermediate payment or
intermediate or partial settlement of account by, or a change in the
constitution or control of, or merger or consolidation with any other
person of, or the insolvency of, or bankruptcy, winding up or analogous
proceedings relating to, the
Seller(s).
|
12.4
|
The
Guarantor's liabilities under Clauses 12.1 to
12.2 (inclusive) are not affected by an arrangement
which the Purchaser may make with the Seller(s) or with another person
which (but for this Clause 12.4) might operate to diminish or discharge
the liability of or otherwise provide a defence to a
surety.
|
12.5
|
Without
affecting the generality of Clause 12.4,
the Purchaser may at any time as it thinks fit and without reference to
the Guarantor and without prejudice to the Guarantor's obligations under
this Clause 12:
|
|
12.5.1
|
grant
a time for payment or any other indulgence or agree to an amendment,
variation, waiver or release in respect of an obligation of the Seller(s)
under this Agreement, any document delivered pursuant to this Agreement or
any other Transaction Document;
|
30
|
12.5.2
|
give
up, deal with, vary, exchange or abstain from perfecting or enforcing
other securities or guarantees held by the
Purchaser;
|
|
12.5.3
|
discharge
a party to other securities or guarantees held by the Purchaser and
realise all or any of those securities or guarantees;
and
|
|
12.5.4
|
compound
with, accept compositions from and make other arrangements with the
Seller(s) or a person or persons liable on other securities or guarantees
held or to be held by the
Purchaser.
|
12.6
|
So
long as the Seller(s) is/are under an actual or contingent obligation to
the Purchaser under this Agreement, any document delivered pursuant to
this Agreement or any other Transaction Document, the Guarantor shall not
exercise a right which he may at any time have by reason of the
performance of his obligations under Clauses 12.1 to
12.2 (inclusive) to be indemnified by the Seller(s), to
claim a contribution from another surety of the obligations of the
Seller(s) or to take the benefit (wholly or partly and by way of
subrogation or otherwise) of any of the Purchaser's rights under this
Agreement, any document delivered pursuant to this Agreement or any other
Transaction Document.
|
12.7
|
The
Guarantor's liabilities under Clauses 12.1 to
12.2 (inclusive) are not affected by the avoidance of
an assurance, security or payment or a release, settlement or discharge
which is given or made on the faith of an assurance, security or payment,
in either case, under an enactment relating to bankruptcy or
insolvency.
|
12.8
|
Subject
to Clause 12.2, the
Guarantor waives any right he may have of first requiring the Purchaser
(or any trustee or agent on its behalf) to proceed against or enforce any
other rights or security or claim payment from any person before claiming
from the Guarantor under this Clause 12. Subject to Clause 12.2,
this waiver applies irrespective of any applicable law or any provision of
the Agreement, any document delivered pursuant to this Agreement or any
other Transaction Document.
|
13.
|
Notices
|
13.1
|
Any
notice or other communication to be given under this Agreement shall be in
writing, in the English language, and shall be deemed to have been duly
given to a Party:
|
|
13.1.1
|
on
receipt, when delivered personally;
|
|
13.1.2
|
on
the next following Business Day following being transmitted by facsimile
with suitable proof of transmission;
or
|
|
13.1.3
|
three
Business Days following being sent by an international courier
service.
|
31
13.2
|
For
the purposes of this Clause, the authorized address and facsimile details
of the Parties shall be as follows:
|
if
to the Purchaser:
CME
Production X.X.
Xxx
0x
Xxxxxxxxx
XX 0000
Xxx
Xxxxxxxxxxx
Attn:
Director
Tel.:
x00 00 000 0000
Facsimile:
x00 00 000 0000
with
a copy to:
c/o
CME Development Corporation
00
Xxxxxxx Xxxxxx
Xxxxxx
X0X 0XX
Xxxxxx
Xxxxxxx
Attn:
General Counsel
Tel.:
x00 000 000 0000
Facsimile:
x00 000 000 0000
|
if to CME
Romania:
CME
Romania X.X.
Xxx
0x
Xxxxxxxxx
XX 0000
Xxx
Xxxxxxxxxxx
Attn:
Director
Tel.:
x00 00 000 0000
Facsimile:
x00 00 000 0000
with
a copy to:
c/o
CME Development Corporation
00
Xxxxxxx Xxxxxx
Xxxxxx
X0X 0XX
Xxxxxx
Xxxxxxx
Attn:
General Counsel
Tel.:
x00 000 000 0000
Facsimile:
x00 000 000 0000
|
if
to Media Pro Management:
7-9
Prof. Xxxxxxxx Xxxxxx Xxxxxx, 0xx
xXxxxx,Xxxxxxxx 0, Xxxxxxxxx Xxxxxxx Attn:
Director
Tel.:
x00 00 000 0000
Facsimile:
x00 00 000 0000
|
if
to MP BV:
Teleport
Xxxxxxxxx 000, 0000XX, 0000 XX,
Xxxxxxxxx, Xxxxxxxxxxx Attn:
Director
Tel.:
x00 00 0000000
Facsimile:x00
00 000 0000
|
or such
other address as such Party may notify to the other Parties in writing from time
to time in accordance with the requirements of this Clause, such notice to be
effective five (5) Business Days after the date of such notice or following such
longer period as may be set out in such notice.
13.3
|
Any
notice given under this Agreement outside Working Hours of the place to
which it is addressed shall be deemed not to have been given until the
start of the next period of Working Hours in such
place.
|
14.
|
Entire
Agreement
|
14.1
|
This
Agreement constitutes the entire agreement between the Parties and
supersedes any arrangements, understanding or previous agreement between
them relating to the subject matter to which it
relates.
|
14.2
|
Each
Party acknowledges that in entering into this Agreement it does not rely
on, and shall have no remedy in respect of, any statement, representation,
assurance or warranty of any person other than as expressly set out in
this Agreement.
|
14.3
|
Nothing
in this Clause operates to limit or exclude any liability for fraud or
willful misconduct.
|
15.
|
Third
Party Rights
|
15.1
|
Subject
to Clause 10,
no person who is not a party to this Agreement shall have any rights under
the Contracts (Rights of Third Parties) Xxx 0000 to enforce a term of this
Agreement.
|
32
15.2
|
The
Purchaser Protected Parties shall have the right under the Contracts
(Rights of Third Parties) Xxx 0000 to enforce Clause 10 and any other relevant Clause necessary for the
enforcement of the indemnities
therein.
|
16.
|
Amendments
|
16.1
|
This
Agreement may be amended or modified only if in writing (including a
written document evidenced by a facsimile transmission) and signed by each
of the Parties.
|
16.2
|
The
single or partial exercise of any right, power or remedy provided by law
or under this Agreement shall not preclude any other or further exercise
of it or the exercise of any other right, power or
remedy.
|
16.3
|
None
of the terms of this Agreement may be waived except by an instrument in
writing duly executed by the waiving
Party.
|
17.
|
Costs
and Expenses
|
Except as
specified herein, each Party shall be liable for its own costs and expenses in
relation to the negotiation, preparation, execution and carrying into effect of
this Agreement.
18.
|
Set-off
and Gross-up
|
18.1
|
A
payment made under this Agreement by one Party to the other shall be made
free of any right of counterclaim or set-off and without deduction or
withholding of any kind, other than any deduction or withholding required
by law.
|
18.2
|
If
a Party is required by law to make a deduction or withholding, it shall,
at the same time as the payment which is the subject of the deduction or
withholding payable under this Agreement, pay to the other Party such
additional amount as shall be required to ensure that the net amount
received by the other Party under this Agreement will equal the full
amount which would have been received by it had no such deduction or
withholding been required to be
made.
|
19.
|
Assignment
|
The
provisions of this Agreement shall be binding upon and shall inure to the
benefit of the Parties and their respective successors and permitted
assigns. No Party may assign its rights (or for the avoidance of
doubt, its obligations) under this Agreement without the express written consent
of the other Parties, which shall not be unreasonably withheld or
delayed.
20.
|
Confidentiality
|
20.1
|
No
Party shall divulge or communicate to any person (other than those of its
shareholders, directors, employees and professional advisers whose
province it is to know the same) or use or exploit for any reason
whatsoever this Agreement or the matters contemplated hereby or the
information disclosed by any of the other Parties, and shall use its
reasonable endeavors to prevent its employees from so
acting.
|
20.2
|
Notwithstanding
the provisions of Clause 20.1,
any Party may make an announcement or disclosure concerning this
Agreement:
|
33
|
(i)
|
if
required by law or any requirement of any securities exchange or
Governmental Authority to which that Party is subject, wherever situated,
whether or not the requirement has the force of law,
or
|
|
(ii)
|
to
a Party's or its Affiliates' directors, officers, employees, professional
advisers, counsel, rating agencies, and lenders or other providers of
funds (a) who are directly concerned with this Agreement or any related
arrangements or transactions, (b) whose knowledge of such information is
reasonably necessary; and (c) who by its position or otherwise is under a
duty to observe confidentiality in dealing with this Agreement and such
related arrangements or otherwise must comply with the provisions of this
Agreement in respect of
confidentiality.
|
20.3
|
The
restrictions contained in this Clause shall continue to apply for a period
of two (2) years following the expiration or termination of this
Agreement.
|
21.
|
Announcements
|
21.1
|
Subject
to Clause 21.2,
no Party shall make or issue a public announcement, communication or
circular concerning the Transaction unless it has first obtained the other
Parties' written consent, which may not be unreasonably withheld or
delayed.
|
21.2
|
Clause 21.1 does not apply to a public announcement,
communication or circular required by law or by a rule or regulation of a
listing authority, a stock exchange or a Governmental Authority to which
the relevant Party is subject, provided that the
public announcement, communication or circular shall so far as is
practicable be made after consultation with the other Parties and after
taking into account the reasonable requirements of the other Parties as to
its timing, content and manner of making or
despatch.
|
22.
|
Severability
|
If any
provision of this Agreement (or of any document referred to herein) is held to
be illegal, invalid or unenforceable in whole or in part, the legality, validity
and enforceability of the remaining provisions of this Agreement (or such other
document) shall not in any way be affected or impaired thereby. If
any provision or part of this Agreement (or any document referred to herein) is
held to be illegal, invalid or unenforceable, then the Parties shall use
reasonable endeavors to the fullest extent permitted by law to amend the terms
of this Agreement to give effect to the transactions contemplated hereby, and if
any invalid, unenforceable or illegal provision would be valid, enforceable or
legal if some part of it were deleted or modified, the provision shall apply
with whatever modification is necessary to give effect to the commercial
intention of the Parties.
23.
|
Further
Assurance
|
Each of
the Parties shall, at the request of the other Party, promptly do or so far as
each is able procure the doing, of all such acts and/or execute or procure the
execution of all such documents in a form satisfactory to such other Party
concerned as they may reasonably consider necessary for giving full effect to
this Agreement and securing to such other Party the full benefit of the rights,
powers and remedies conferred upon them in this Agreement.
34
24.
|
Waivers
|
No
failure or delay by a Party in exercising any right, power or privilege under
this Agreement shall operate as a waiver of that right, power or privilege and
no single or partial exercise by a Party of any right, power or privilege shall
preclude any further exercise of that right, power or privilege or the exercise
of any other right, power or privilege.
25.
|
Counterparts
|
This
Agreement may be executed in any number of counterparts, each of which is an
original and which together have the same effect as if each Party had signed the
same document, provided
that each Party executes at least one (1) counterpart.
26.
|
Governing
Law and Jurisdiction
|
This
Agreement shall be governed by and construed in accordance with the laws of
England.
27.
|
Dispute
Resolution
|
27.1
|
Any
disputes, claims or controversy arising out of or related to this
Agreement, including any question as to its formation, validity,
interpretation or termination, which cannot be resolved by negotiations
between the Parties shall be settled by arbitration on an ad hoc basis in
accordance with the Rules of the London Court of International
Arbitration, which are deemed to be incorporated by reference into this
Clause, except to the extent modified by this Clause. The
tribunal shall consist of three (3) arbitrators. The Purchaser or CME
Romania (as applicable) and the Sellers shall each nominate one (1)
arbitrator and the third (3rd)
arbitrator shall be appointed by the two (2) arbitrators nominated by the
Parties. Either of the Purchaser or the Seller shall have the
right to initiate the proceedings.
|
27.2
|
The
seat of the arbitration shall be London, England. The language
of the arbitration shall be English, except that any party to the
arbitration may submit testimony or documentary evidence in Romanian,
whereupon it shall also furnish a certified translation or interpretation
of any such evidence into English.
|
27.3
|
If
any dispute arising out of or relating to this Agreement (hereinafter
referred to as a "Related
Dispute") raises issues which are substantially the same as or
connected with issues raised in another dispute which has already been
referred to arbitration under this Agreement or another Transaction
Document (an "Existing
Dispute"), the tribunal appointed or to be appointed in respect of
any such Existing Dispute shall also be appointed as the tribunal in
respect of any such Related Dispute. Where, pursuant to the
foregoing provisions, the same tribunal has been appointed in relation to
two or more disputes, the tribunal may, with the agreement of all the
parties concerned or upon the application of one of the parties, being a
party to each of the disputes, order that the whole or part of the matters
at issue shall be heard together upon such terms or conditions as the
tribunal thinks fit. The tribunal shall have power to make such
directions and any interim or partial award as it considers just and
desirable.
|
27.4
|
Each
of the Parties agree that money damages would not be a sufficient remedy
for any breach of this Agreement by them and that in addition to all other
remedies, the Purchaser shall be entitled to specific performance and to
injunctive or other equitable relief as remedies for any such breach or
threatened breach of this Agreement by the Sellers without proof of actual
damages. The Parties agree not to oppose the granting of such
relief, and to waive, and to use their best endeavors to cause any
Affiliate to waive, any requirement for the securing or posting of any
bond in connection with such
remedy.
|
[Signature page follows]
35
IN WITNESS WHEREOF, the
Parties have duly executed this Agreement on the date first written
above.
SIGNED
for
and on behalf of
CME
PRODUCTION B.V.
|
)
)
)
)
)
)
)
)
)
|
/s/ Xxxxxxx van Spaendonck |
A.N.G.V.
Spaendonck
Managing
Director
/s/ Henk van Wijlen
H.A.
van Wijlen on behalf of Pan-Invest B.V.
Managing
Director
|
SIGNED
for
and on behalf of
CME
ROMANIA B.V.
|
)
)
)
)
)
)
)
)
)
|
/s/ Xxxxxxx van Spaendonck |
A.N.G.V.
Spaendonck
Managing
Director
/s/ Henk van Wijlen
H.A.
van Wijlen on behalf of Pan-Invest B.V.
Managing
Director
|
SIGNED
by
XXXXXX
XXXXX
|
)
)
)
)
)
|
/s/ Xxxxxx Xxxxx |
SIGNED
for
and on behalf of
MEDIA
PRO MANAGEMENT S.A.
|
)
)
)
)
)
|
/s/ Xxxxxxxx Xxxxx Xxxxxxxx
Xxxxx
|
SIGNED
for
and on behalf of
MEDIA
PRO B.V.
|
)
)
)
)
)
)
)
)
)
|
/s/ Xxxxxxxx Xxxxxxx Xxxxxxxxxx |
Xxxxxxxx
Xxxxxxx Xxxxxxxxxx
|
36