AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit
10.64
AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of 11 May
2007 (this "Agreement"), is made by CENTRAL EUROPEAN MEDIA ENTERPRISES
LTD., a company formed under the laws of Bermuda (the "Company"), and
TESTORA LTD., a company formed under the laws of the Republic of Cyprus
("Testora").
W
I T N E S S E T H:
WHEREAS,
pursuant to a Subscription Agreement, dated as of May 2, 2005, between the
Company and PPF (Cyprus) Ltd. (“PPF”), an Affiliate of Testora (the
"Subscription Agreement"), the Company issued to PPF an aggregate of
3,500,000 shares of Class A Common Stock (the “Shares”), in accordance
with the terms of the Subscription Agreement.
WHEREAS,
PPF transferred the Shares to Testora on December 30, 2005 in accordance with
Section 4 of the Subscription Agreement and assumed all of the rights and
obligations of PPF thereunder and hereunder;
WHEREAS,
Testora has entered into a loan agreement with Citibank N.A. dated as of the
date hereof (the “Loan Agreement”) and granted security over the Shares
as security thereunder pursuant to the Security Documents (as defined in the
Loan Agreement);
WHEREAS,
following the termination of Loan Agreement, the irrevocable payment,
performance and discharge of the Secured Obligations (as defined in the Loan
Agreement) and the release of the lien over the Shares in accordance with the
Security Documents, Testora has elected to dispose of the Remaining Shares
(as
defined below) as provided hereunder; and
WHEREAS,
to induce Testora to execute and deliver this Agreement, the Company has agreed
to provide to Testora and its permitted assigns certain registration rights
under the Securities Act of 1933, as amended (the "Securities Act"), and
applicable state securities laws.
NOW,
THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the Company and Testora hereby agree as
follows:
1. Definitions.
As
used
in this Agreement, the following terms shall have the following
meanings:
(a)
“End Date” means the earlier of the date on which (i) PPF no longer has,
or otherwise relinquishes, the right to designate an observer to the Board
of
Directors pursuant to the TV Nova Group Agreement dated as of May 2, 2005 among
PPF, the Company and CME Media Enterprises B.V, (ii) the number of Shares held
by Testora together with any Permitted Transferee is less than 4% of the total
number of shares of Class A Common Stock and Class B Common Stock of the Company
and (iii) a person other than CME Holdco L.P. or a permitted transferee thereof
acquires voting power in the Company that is greater than 20%.
(b) “Framework
Agreement” means the Framework Agreement among the Company, CME Media
Enterprises BV and PPF dated December 13, 2004.
(c) "Holder"
or "Holders" mean a holder or holders of Registrable
Securities.
(d) “Loan
Termination Date” shall mean the date on which the security granted over the
Shares to Citibank N.A. pursuant to the Security Documents is released in
accordance with the terms thereof.
(e) “Permitted
Transferee” shall have the meaning ascribed to it in Section 6.
(f) "Registrable
Securities" shall mean (i) the Remaining Shares; (ii) securities issued or
issuable upon any stock split, stock dividend, recapitalization or similar
event
with respect to such Remaining Shares; and (iii) any other security issued
as a
dividend or other distribution with respect to, in exchange for, or in
replacement of, the securities referred to in the preceding
clauses.
(g) "Registration
Statement" means a registration statement or registration statements of the
Company filed under the Securities Act covering Registrable
Securities.
(h) "Register,"
"Registered" and "Registration" refer to a registration effected
by preparing and filing a registration statement in compliance with the
Securities Act and pursuant to Form S-3 under the Securities Act, and, to the
extent required, the declaration or ordering of effectiveness of such
registration statement by the United States Securities and Exchange Commission
(the "SEC").
(i) “Remaining
Shares” means such number of Shares over which the security granted to
Citibank N.A. is released on the Loan Termination Date.
(j) "Violations"
shall have the meaning ascribed to it in Section 5(a).
Capitalized
terms defined in the introductory paragraph or the recitals to this Agreement
shall have the respective meanings therein provided.
2. Permitted
Sales, Notice and Piggyback Registration.
(a) From
the Loan Termination Date, Testora or a Permitted Transferee shall have the
right to sell such number of Registrable Securities as are permitted to be
sold
under Rule 144(e) during any ninety-day period pursuant to any available
exemption from registration. For the avoidance of doubt, this
limitation on the number of shares permitted to be sold shall not apply from
and
after the End Date.
(b) Notwithstanding
Section 2(a), in the event that prior to the End Date Testora or a Permitted
Transferee intends to sell more than 1,000,000 Registrable Securities in a
transaction or series of related transactions it shall provide
written notice to the Company at least thirty (30) days prior to the intended
date of sale.
(c) Following
receipt of such notice pursuant to Section 2(b), the Company shall be
entitled up to two times in any 12-month period prior to the End
Date, to request that Testora or a Permitted Transferee delay such sale for
up
to 90 days if the Company proposes to file within such 90-day period a
registration statement under the Securities Act for the offering and sale
of
securities for its own account in an underwritten offering and the managing
underwriter therefor shall advise the Company that in its opinion the continued
distribution of the Registrable Securities would adversely affect the offering
of the securities proposed to be registered for the account of the
Company.
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(d) Notwithstanding
Section 2(b), if at any time prior to the End Date, Testora or Permitted
Transferee is holding not less than 1,000,000 Registrable Securities and the
Company shall propose an underwritten registration of shares of Class A Common
Stock for its own account other than a registration statement filed on Form
X-0,
Xxxx X-0 or such other similar successor forms then in effect under the
Securities Act, or a registration relating solely to a Securities Act Rule
145
transaction, the Company will:
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(i)
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give
to Testora or such transferee written notice thereof at least thirty
(30)
days prior to the filing of any registration statement relating thereto
under the Securities Act;
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(ii)
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subject
to Section 2(f), include in such underwritten registration (and any
related qualification under blue sky laws or other compliance), all
the
Registrable Securities specified in a written request or requests
made
within ten (10) business days after receipt of such written notice
from
the Company by Testora or such transferee. If Testora or such
transferee decides not to include all of its Registrable Securities
in any
underwritten registration thereafter filed by the Company, Testora
or such
transferee shall nevertheless continue to have the right to include
any
eligible Registrable Securities in any subsequent registration statement
or registration statements as may be filed by the Company with respect
to
underwritten offerings of its securities up until the End Date, all
upon
the terms and conditions set forth herein;
and
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(iii)
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advise
Testora or such transferee that the right of Testora or such transferee
to
registration pursuant to this Section 2(d) shall be conditioned upon
Testora’s or such transferee’s participation in such underwriting on the
customary terms provided by the Company and entering into a customary
underwriting agreement with the underwriter(s) selected by the Company,
and the inclusion of such Registrable Securities in the underwriting
to
the extent provided herein.
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(e) The
Company shall permit a single firm of counsel designated by Testora to review
such Registration Statement, and all amendments and supplements thereto (as
well
as any requests for acceleration or effectiveness thereof and any correspondence
between the Company and the SEC relating to the Registration Statement, if
required) (collectively, the "Registration Documents") a reasonable
period of time prior to their filing with the SEC. The sections of
such Registration Statement covering information with respect to Testora or
such
Permitted Transferee, Testora’s or such transferee’s beneficial ownership of
securities of the Company or Testora’s or such transferee’s intended method of
disposition of Registrable Securities shall conform to the information provided
to the Company by Testora or such transferee.
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(f)
If the managing underwriter of an offering pursuant to Section 2(d) determines
that marketing factors require a limitation of the number of shares of Class
A
Common Stock to be underwritten, the managing underwriter may limit the number
of Registrable Securities and other securities (if any) to be distributed
through such underwriting. The Company shall so advise Testora or
such Permitted Transferee of such limitation and the number of shares of
Registrable Securities that may be included in the registration. No
such reduction shall reduce the securities being offered by the Company for
its
own account to be included in the registration and underwriting.
(g) The
Company shall have the right to terminate or withdraw any registration initiated
by it under Section 2(d) prior to the effectiveness of such registration,
whether or not Testora or such Permitted Transferee has elected to include
securities in such registration.
3. Obligations
of the Company.
In
connection with the registration of the Registrable Securities, the Company
shall do each of the following:
(a) The
Company shall promptly furnish, after any Registration Statements are prepared
pursuant to Section 2(d), filed with the SEC, publicly disseminated and
distributed and received by the Company, to Testora or such Permitted Transferee
and its legal counsel, a copy of any such Registration Statement, each
preliminary prospectus, each final prospectus, and all amendments and
supplements thereto and such other documents as Testora or such transferee
may
reasonably request in order to facilitate the disposition of its Registrable
Securities;
(b) List
such securities on The Nasdaq Global Market, if the Company’s securities are
listed on such market, and all the other national securities exchanges on which
any securities of the Company are then listed, and file any filings required
by
The Nasdaq Global Market and/or such other securities exchanges;
(c) Notify
Testora and (if requested by Testora) confirm such advice in writing, (i) when
or if the prospectus or any prospectus supplement or post-effective amendment
has been filed with the SEC, and, with respect to any Registration Statement
including the disposition of Registrable Securities or any post-effective
amendment, when the same has been declared effective by the SEC, (ii) of any
request by the SEC for amendments or supplements to any such Registration
Statement or the prospectus or for additional information, (iii) of the issuance
by the SEC of any stop order suspending the effectiveness of such Registration
Statement or the initiation of any proceedings for that purpose, (iv) of the
receipt by the Company of any notification with respect to the suspension of
the
qualification of the Registrable Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, and (v) of the
happening of any event as a result of which the prospectus included in such
Registration Statement, as then in effect, includes an untrue statement of
a
material fact or omits to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading in the light of the
circumstances then existing;
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(d) Cooperate
with Testora to facilitate the timely preparation and delivery of certificates
for the Registrable Securities to be offered pursuant to Section2(d) and
to
enable such certificates for the Registrable Securities to be in such
denominations or amounts, as the case may be, as Testora may reasonably request,
and registered in such names as Testora may request; and, within three business
days after a Registration Statement which includes Registrable Securities
is
effective , the Company shall deliver, and shall cause legal counsel selected
by
the Company to deliver, to the transfer agent for the Registrable Securities
(with copies to Testora) an appropriate instruction and opinion of such
counsel;
(e) Enter
into customary agreements (including underwriting agreements in customary form,
and including provisions with respect to indemnification and contribution in
customary form) and take all other customary and appropriate actions in order
to
expedite or facilitate the disposition of such Registrable Securities and in
connection therewith:
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(i)
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make
such representations and warranties agreements, including with respect
to
indemnification, to Testora and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters
in
similar underwritten offerings; and
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(ii)
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deliver
such customary documents and certificates as may be reasonably requested
by Testora if Registrable Securities are being sold or by the
underwriters.
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4. Obligations
of Testora or a Permitted Transferee to Provide
Information.
In
connection with the registration of the Registrable Securities, Testora or
such
transferee shall do each of the following
(a) furnish
to the Company and the underwriter, such information regarding itself, the
Registrable Securities held by it and the intended method of disposition of
the
Registrable Securities held by it as shall be reasonably requested by the
Company or an underwriter to effect the registration of such Registrable
Securities, and execute any and all such documents in connection with such
registration as the Company or an underwriter or the legal counsel of either
may
reasonably request. At least ten business days prior to the first
anticipated filing date of the Registration Statement, the Company shall notify
Testora in writing of the information the Company requires of Testora to be
included in the Registration Statement and Testora or such transferee shall
provide such information within five business days of receipt of such
notice. Testora shall
(b) enter
into customary agreements (including underwriting agreements in customary form,
and including provisions with respect to indemnification and contribution in
customary form) and take all other customary and appropriate actions in order
to
expedite or facilitate the disposition of such Registrable Securities and in
connection therewith:
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(i)
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make
such representations and warranties to the Company and the underwriters,
in form, substance and scope as are customarily made by selling
shareholders to underwriters in similar underwritten offerings;
and
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(ii)
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deliver
such customary documents and certificates as may be reasonably
requested
by the Company or the underwriters.
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5.
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Expenses
of Registration.
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All
expenses and fees, other than Testora’s underwriting discounts or commissions
and its legal fees, incurred in connection with registrations, filings or
qualifications pursuant to Section 3, including, without limitation, all
registration, listing, and qualification fees, printing and accounting fees,
and
the fees and disbursements of counsel and auditors for the Company shall be
borne by the Company.
6. Assignment
of the Registration Rights.
Testora
may transfer Registrable Securities to an affiliate (as such term is defined
under the Securities Act) (a “Permitted Transferee”) with the prior
written consent of the Company, such consent not to be unreasonably withheld.
The rights to have the Company register Registrable Securities pursuant to
this
Agreement shall be automatically assigned by Testora to any Permitted Transferee
if: (a) Testora agrees in writing with the transferee or assignee to assign
such
rights, and a copy of such agreement is furnished to the Company within a
reasonable time after such assignment; and (b) at or before the time the Company
receives the written notice contemplated by clause (b) of this sentence, the
transferee or assignee agrees in writing to be bound by all of the provisions
contained herein. No transferee of Shares pursuant to Section 2 shall be deemed
to be a Permitted Transferee hereunder.
7. Amendment
of Registration Rights.
Any
provision of this Agreement may be amended and the observance thereof may be
waived (either generally or in a particular instance and either retroactively
or
prospectively), only with the written consent of the Company and
Testora. Any amendment or waiver effected in accordance with this
Section 7 shall be binding upon Testora and the Company.
8. Reports
under the Exchange Act.
The
Company agrees to file with the SEC all reports and other documents required
of
the Company under the Securities and Exchange Act of 1934.
9. Termination
of Registration Rights.
The
obligations of the Company and Testora under this Agreement shall terminate
on
the earlier of (i) the date on which Testora or a Permitted Transferee owns
less
than 1,000,000 Registrable Securities and (ii) the
End Date.
10. Termination
of Subscription Agreement.
The
obligations of the Company and Testora under the Subscription Agreement (as
amended by the Tripartite Agreement) shall terminate on the Loan Termination
Date other than Section 4(d) thereof, which shall terminate on the End
Date.
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11. Agreement
of Testora.
(a) In
consideration for the Company agreeing to its obligations under this Agreement,
Testora and each Permitted Transferee agrees, in connection with a registration
of shares of Class A Common Stock by the Company under the Securities Act in
accordance with Section 2 hereof, not to sell (including pursuant to Section
2(a) hereof), make any short sale of, loan, grant any option for the purchase
of, or otherwise dispose of, any securities of the Company (other than those
included in the subject registration) without the prior written consent of
the
Company and, if such registration is underwritten, of such underwriters, as
the
case may be, for such period of time (not to exceed 90 days from the effective
date of such registration) as may be requested by the Company or such managing
underwriters.
(b) In
order to enforce Section 11(a) hereof, the Company may impose stop-transfer
instructions with respect to the shares or securities of every person subject
to
such restriction until the end of such period. Each holder of
Registrable Securities agrees that, if so requested, such holder will execute
an
agreement in the form provided by the underwriter containing terms which are
generally consistent with the provisions of this Section 11.
12. Miscellaneous.
(a) A
person or entity is deemed to be a holder of Registrable Securities whenever
such person or entity owns of record such Registrable Securities. If
the Company receives conflicting instructions, notices or elections from two
or
more persons or entities with respect to the same Registrable Securities, the
Company shall act upon the basis of the instructions, notice or election
received from the registered owner of such Registrable Securities.
(b) Any
notice required or permitted hereunder shall be given in writing (unless
otherwise specified herein) and shall be effective upon personal delivery,
via
facsimile (upon receipt of confirmation of error-free transmission) or two
business days following deposit of such notice with an internationally
recognized courier service, with postage prepaid and addressed to each of
the
other parties thereunto entitled at (i) the address set forth below or (ii)
at
such other addresses as a party may designate by ten days advance written
notice
to each of the other parties hereto.
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Company:
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Xxxxxxx
Xxxxx
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00
Xxxxxxx, Xxxxxx
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XX0X
0XX XXXXXXX
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ATTENTION:
General Counsel
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Tel:
x00-00-0000-0000
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Fax:
x00-00-0000-0000
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with
a copy to:
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Xxxxxx
Xxxxxx Xxxxx Xxxxxxxx
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000
Xxxxxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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ATTENTION: Xxxxxx
X. Xxxx, Esq
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Tel:
x0-000-000-0000
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Fax:
x0-000-000-0000
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Testora:
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TESTORA
LIMITED
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Xxxxxxx
Xxxxxxxxx 8
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EL/.PA
Livadioti
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PC6023Larnaca,
Cyprus
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ATTENTION:
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Tel:
x000 00 00 00 00
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Fax:
x000 00 00 00 00
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with
a copy to:
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PPF
CONSULTING a.s.
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Xx
Xxxxxxxx 0000/000
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000
00 Xxxxx 4 - Pankrác
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Czech
Republic
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ATTENTION:
Xxxxx Xxxxxxxxxx
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Tel:
x000 000 000 000
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Fax:
x000 000 000 000
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(c) Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as
a
waiver thereof.
(d) This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of New York, without giving effect to conflicts of laws
issues. Each of the parties agrees to the jurisdiction of the federal
courts whose districts encompass any part of the City of New York or the state
courts of the State of New York sitting in the City of New York in connection
with any dispute arising under this Agreement and hereby waives, to the maximum
extent permitted by law, any objection, including any objection based on
forumnon conveniens, to the bringing of any such proceeding in
such jurisdictions. This Agreement may be signed in two or more
counterparts, each of which shall be deemed an original. The headings
of this Agreement are for convenience of reference and shall not form part
of,
or affect the interpretation of, this Agreement. If any provision of
this Agreement shall be invalid or unenforceable in any jurisdiction, such
validity or unenforceability shall not affect the validity or enforceability
of
the remainder of this Agreement or the validity or enforceability of this
Agreement in any other jurisdiction. Subject to the provisions of
Section 10 hereof, this Agreement may be amended only by an instrument in
writing signed by the party to be charged with enforcement.
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(e) This
Agreement constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof. This Agreement supersedes all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof.
(f)
Subject to the requirements of Section 9 hereof, this Agreement shall inure
for
the benefit of and be binding upon the successors and assigns of each of the
parties hereto.
(g)
All pronouns and any variations thereof refer to the masculine, feminine or
neuter, singular or plural, as the context may require.
IN
WITNESS WHEREOF, this Amended and Restated Registration Rights
Agreement has been duly executed by the undersigned as of the date set forth
above.
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By:
/s/
Xxxxxxx Xxxxx
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Name:
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Xxxxxxx
Xxxxx
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Title:
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Chief
Executive Officer
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TESTORA
LIMITED
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By:
/s/
Xxxxx Xxxxxxxxxxx
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Name:
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Xxxxx
Xxxxxxxxxxx
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Title:
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Director
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By:
/s/
Xxxxxxxx Xxxxxxxx
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Name:
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Xxxxxxxx
Xxxxxxxx
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Title:
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Director
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9
