Quarterly Report — Form 10-Q Filing Table of Contents
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1: 10-Q Central European Media 10-Q 3-31-2009 HTML 1.36M
2: EX-10.1 Material Contract HTML 505K
3: EX-10.2 Material Contract HTML 361K
4: EX-31.01 Certification per Sarbanes-Oxley Act (Section 302) HTML 11K
5: EX-31.02 Certification per Sarbanes-Oxley Act (Section 302) HTML 11K
6: EX-32.1 Exhibit 32.01 HTML 10K
SUBSCRIPTION
AGREEMENT (this “Agreement”), dated as
of March 22, 2009 (the “Effective Date”), by
and between TW Media Holdings LLC, a Delaware limited liability company (“Subscriber”), and
Central European Media Enterprises Ltd., a Bermuda company (the “Company”). Each
capitalized term used in this Agreement without definition has the meaning set
forth in Section
7.1.
RECITALS
WHEREAS,
Subscriber desires to purchase from the Company, and the Company desires to
issue to Subscriber, the Subscription Shares (as defined in Section 1.1 below) in
exchange for the Purchase Price (as defined in Section 1.1 below);
and
WHEREAS,
as part of the consideration for the Company entering into this Agreement, each
of Ronald S. Lauder, RSL Savannah LLC, a Delaware limited liability company
(“RSL
Savannah”), Subscriber and the Company has agreed to enter into that
certain Irrevocable Voting Deed and Corporate Representative Appointment, the
exact form of which (subject to Section 1.4 hereof)
is attached hereto as Exhibit A (the “TW Voting
Agreement”).
NOW,
THEREFORE, in consideration of the mutual covenants and promises contained
herein and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
ARTICLE
I
PURCHASE
OF SUBSCRIPTION SHARES; CLOSING
1.1. Purchase of Subscription
Shares. Upon the terms and subject to the conditions set forth
herein, Subscriber hereby subscribes for, and agrees to purchase, and the
Company agrees to issue and sell to Subscriber, (a) fourteen million five
hundred thousand (14,500,000) newly issued Class A Common Shares (the “Class A Subscription
Shares”) at a purchase price of US$12.00 per Class A Subscription Share
and (b) four million five hundred thousand (4,500,000) newly issued Class B
Common Shares (the “Class B Subscription
Shares” and, together with the Class A Subscription Shares, the “Subscription Shares”)
at a purchase price of US$15.00 per Class B Subscription Share for a total
purchase price of US$241,500,000 (the “Purchase
Price”). The Purchase Price payable by Subscriber shall be
paid in full in immediately available funds at the Closing (as defined in Section 1.2
below).
1.2. Closing. Subject
to the satisfaction or waiver of each of the conditions set forth in Article IV, unless
this Agreement shall have been terminated pursuant to its terms, the closing of
the purchase and sale of the Subscription Shares (the “Closing”) shall take
place at the offices of Dewey & LeBoeuf LLP, 1301 Avenue of the Americas,
New York, New York10019 on the second Business Day following the date upon
which the conditions set forth in Article IV shall be
satisfied (excluding conditions that, by their nature, cannot be satisfied until
the Closing, but subject to the satisfaction or waiver of such conditions at the
Closing) or waived in accordance with this Agreement or at such date and time as
the parties may agree to in writing (the “Closing
Date”). At the Closing, the Company will deliver to Subscriber
two certificates: (a) one representing fourteen million five hundred thousand
(14,500,000) Class A Common Shares and (b) one representing four million five
hundred thousand (4,500,000) Class B Common Shares, evidencing the number of
Subscription Shares purchased by Subscriber, each registered in Subscriber’s
name and bearing legends substantially in the form set forth herein against
delivery by Subscriber to the Company of the Purchase Price and will register
the Subscriber in its register of shareholders as the holder of the Subscription
Shares.
1
1.3. Adjustment. The
number of Subscription Shares to be purchased by Subscriber at the Closing
pursuant to Section
1.1 and the Purchase Price shall be proportionately adjusted for any
subdivision or combination (by stock split, reverse stock split, dividend,
reorganization, recapitalization or otherwise) of the Class B Common Shares or
the Class A Common Shares (unless, with respect to the Class B Subscription
Shares, the conversion rate applicable to the conversion of the Class B Common
Shares into Class A Common Shares is adjusted proportionally therewith) that
occurs during the period between the Effective Date and the
Closing.
1.4. Designated Subscriber. Prior
to the Closing Date, Subscriber may, upon not less than ten (10) Business Days’
prior written notice to the Company, assign its rights and obligations under
this Agreement to one or more wholly-owned subsidiaries of Time Warner Inc.
organized in any state of the United States, any country in Europe, Bermuda or
the Cayman Islands (each such entity, a “Designated Subscriber”) for the
purpose of carrying out the transactions contemplated hereby; provided, however,
that (a) such assignment shall be effective only if such Designated Subscriber
provides the Company with written acceptance thereof, in form and substance
reasonably acceptable to the Company, prior to the Closing Date and (b)
Subscriber shall be and remain jointly and severally liable for all obligations
of Subscriber and such Designated Subscriber under this Agreement and under all
documents and instruments to be executed and delivered by Subscriber or such
Designated Subscriber pursuant hereto.
1.5. Closing
Deliveries. At the Closing, (a) Subscriber shall deliver, or
cause to be delivered, to the Company each of the Company Agreements, duly
executed by Subscriber, or a Designated Subscriber, if applicable, and (b) the
Company shall deliver to Subscriber each of the Company Agreements, duly
executed by the Company.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
2.1. Representations and
Warranties of the Company. The Company represents and warrants
to Subscriber as follows:
(a) Organization and
Standing. The Company is duly organized as an exempted
company, limited by shares, validly existing and in good standing under the laws
of Bermuda. The Company has all requisite power and authority to
conduct its business as presently conducted and as disclosed in the Company
Reports. Each of the Company’s Subsidiaries is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization, with full power and authority to conduct its business as currently
conducted, except where the failure of any Subsidiary to be duly organized,
validly existing and in good standing, individually or in the aggregate, would
not have a Material Adverse Effect. The Company’s Memorandum of
Association, as in effect on the date hereof, and the Company’s Bye-laws, as in
effect on the date hereof, are each filed as exhibits to the Company
Reports.
2
(b) Subscription
Shares. When the certificates evidencing the Subscription
Shares have been delivered to Subscriber against payment therefor as provided in
this Agreement, the Subscription Shares will be validly issued, fully paid and
non-assessable shares of the Company, free and clear of any and all security
interests, pledges, liens, charges, claims, options, restrictions on transfer,
preemptive or similar rights, proxies and voting or other agreements, or other
encumbrances of any nature whatsoever, other than restrictions on transfer
imposed by federal or state securities Laws and the Company’s Bye-laws, and the
rights and restrictions contemplated by the Company Agreements. The
Class A Common Shares issuable upon conversion of the Class B Subscription
Shares have been reserved for issuance and upon their issuance, such Class A
Common Shares will be duly authorized, validly issued, fully paid and
non-assessable shares of the Company, free and clear of any and all security
interests, pledges, liens, charges, claims, options, restrictions on transfer,
preemptive or similar rights, proxies and voting or other agreements, or other
encumbrances of any nature whatsoever, other than restrictions on transfer
imposed by federal or state securities Laws and the Company’s Bye-laws, and the
rights and restrictions contemplated by the Company
Agreements. Assuming the accuracy of all representations and
warranties of Subscriber set forth in Section 2.2, the
offer and issuance by the Company of the Subscription Shares is exempt from
registration under all applicable securities Laws, including the Securities Act
of 1933, as amended (the “Securities Act”), and
“blue sky” laws.
(c) Authorization, Execution and
Delivery and Enforceability. The Company has all requisite
corporate power and corporate authority to enter into and to perform its
obligations under the Company Agreements, to consummate the transactions
contemplated hereby and thereby and to issue the Subscription Shares in
accordance with the terms thereof. The execution and delivery of the
Company Agreements by the Company, and the consummation of the transactions
contemplated hereby and thereby, have been duly authorized by all necessary
action on the part of the Company, subject to the Requisite
Vote. Each of the Company Agreements has been duly executed and
delivered by the Company and constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by (a) applicable bankruptcy, insolvency,
moratorium, reorganization, fraudulent conveyance or similar Laws in effect
which affect the enforcement of creditor’s rights generally or (b) general
principles of equity, whether considered in a proceeding at Law or in
equity.
(d) Capitalization. As
of the date of this Agreement, the authorized capital stock of the Company
consists of (i) 100,000,000 Class A Common Shares, of which 36,024,273 shares
are issued and outstanding, (ii) 15,000,000 Class B Common Shares, of which
6,312,839 shares are issued and outstanding and (iii) 5,000,000 shares of
preferred stock, $0.08 par value, of the Company, of which no shares have been
designated or are outstanding. All of the issued and outstanding
shares of the Company’s capital stock are duly and validly authorized and issued
and are fully paid and nonassessable. On the Closing Date, except as
disclosed in the Company Reports filed prior to the Effective Date and except
for securities issuable pursuant to this Agreement and employee benefit, stock
option and stock purchase plans of the Company existing on the Effective Date
and disclosed in the Company Reports filed prior to the Effective Date or except
as set forth on Schedule 2.1(d)
hereto, there will be no shares, voting securities or equity interests of the
Company issuable upon conversion, exchange or exercise of any security of the
Company or any of its Subsidiaries, nor will there be any rights, options, calls
or warrants outstanding or other agreements to acquire shares, voting securities
or equity interests of the Company nor will the Company be contractually
obligated to purchase, redeem or otherwise acquire any of its respective
outstanding shares. Except as disclosed in the Company Reports filed
prior to the Effective Date or as contemplated by the Company Agreements, no
stockholder of the Company is entitled to any preemptive or similar rights to
subscribe for shares of the Company and no stockholder of the Company has any
rights, contractual or otherwise, to designate members of the Company’s Board of
Directors. Except as disclosed in the Company Reports filed prior to
the Effective Date or as contemplated by the Company Agreements, the Company is
not a party to any stockholder, voting or other agreements relating to the
rights and obligations of the Company’s stockholders. Except as
disclosed in the Company Reports filed prior to the Effective Date or as
contemplated by the Company Agreements, no Person has the right to require the
Company to register any securities for sale under the Securities
Act.
3
(e) Subsidiaries. The
Company’s ownership interest in each of the Company’s Subsidiaries is as
disclosed on Exhibit 21.01 of the Company’s Annual Report on Form 10-K filed on
February 25, 2009. Except as disclosed in the Company Reports or set
forth on Schedule
2.1(e) hereto, the capital stock or membership interests directly or
indirectly owned by the Company in each Subsidiary of the Company are owned free
and clear of any and all material liens, security interest and any other
material encumbrances or restrictions, and all of the outstanding shares of
capital stock or membership interests of each Subsidiary of the Company are
validly issued and are fully paid, non-assessable and free of preemptive and
similar rights. Except as disclosed in the Company Reports, none of
the Company or any of its Subsidiaries (i) has issued or is bound by any
outstanding subscriptions, options, warrants, calls, convertible or exchangeable
securities, rights, commitments or agreements of any character providing for the
issuance or disposition of any shares of capital stock, voting securities or
equity interests of any Subsidiary of the Company, and (ii) there are no
outstanding obligations of the Company or any of its Subsidiaries to repurchase,
redeem or otherwise acquire any shares of capital stock, voting securities or
equity interests (or any options, warrants or other rights to acquire any shares
of capital stock, voting securities or equity interests) of any Subsidiary of
the Company.
(f) No
Conflicts. Except as set forth on Schedule 2.1(f)
hereto and assuming that all Consents and Governmental Approvals described in
Section 2.1(g)
have been obtained or made, neither the execution and delivery by the Company of
the Company Agreements nor the performance by the Company of any of its
obligations hereunder or thereunder, nor the consummation of the transactions
contemplated hereby or thereby, will violate, conflict with, result in a breach,
or constitute a default (with or without notice or lapse of time or both) under,
give to others any rights of consent, termination, amendment, acceleration or
cancellation of, (i) any provision of the governing documents of the Company or
its Subsidiaries, (ii) the broadcast licenses or franchises to which the Company
or any of its Subsidiaries is a party or by which any of their properties or
assets are bound set forth on Schedule 2.1(f)(ii)
hereto, (iii) any trust agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, contract, instrument, permit or
concession to which the Company or any of its Subsidiaries is a party or by
which any of their properties or assets are bound, or (iv) any Law applicable to
the Company or its Subsidiaries or to their properties or assets, except, with
respect to clauses (iii) and (iv) above, to the extent that any of the foregoing
would not have a Material Adverse Effect.
4
(g) Consents and
Approvals. Except for (i) the Consents and Governmental
Approvals set forth on Schedule 2.1(g)
hereto and (ii) the Requisite Vote, no Consent or Governmental Approval is
required on the part of the Company in connection with the execution and
delivery of the Company Agreements or the consummation of the transactions
contemplated hereby or thereby.
(h) Company
Reports. The Company has timely filed all Company
Reports. As of their respective dates, the Company Reports complied
in all material respects with the requirements of the Exchange Act or the
Securities Act, as the case may be, and the rules and regulations of the United
States Securities and Exchange Commission (the “SEC”) promulgated
thereunder, and none of the Company Reports, including any financial statements
or schedules included or incorporated by reference therein (the “Financial
Statements”), at the time filed or, if amended or superseded by a
subsequent filing, as of the date of the last such amendment or superseding
filing made at least two Business Days prior to the date hereof, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading. The Financial Statements and the related notes have been
prepared in accordance with accounting principles generally accepted in the
United States, consistently applied, during the periods involved (except (i) as
may be otherwise indicated in the Financial Statements or the notes thereto, or
(ii) in the case of unaudited interim statements, to the extent they may not
include footnotes, may be condensed or summary statements or may conform to the
SEC’s rules and instructions for Quarterly Reports on Form 10-Q) and fairly
present in all material respects the consolidated financial position of the
Company and its Subsidiaries as of the dates thereof and the consolidated
results of its operations and cash flows for the periods then ended (subject, in
the case of unaudited statements, to normal year-end audit
adjustments).
(i) Brokers, Finders,
etc. All negotiations relating to this Agreement and the
transactions contemplated by this Agreement have been carried on in such manner
as to not give rise to any valid claim against Subscriber for any brokerage or
finder’s commission, fee or similar compensation based upon arrangements made by
or on behalf of the Company.
(j) Regulation
D. Neither the Company nor any person acting on its behalf has
offered to sell, or sold, the Subscription Shares by any form of general
solicitation or general advertising (as those terms are used within the meaning
of Regulation D (“Regulation D”) under
the Securities Act). Neither the Company nor any Person acting on its
behalf has, directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security, under circumstances that would cause
the offering of the Subscription Shares to be integrated with any prior offering
by the Company in a manner that could require the registration of the
Subscription Shares under the Securities Act.
5
(k) No
Litigation. There is no litigation pending or, to the
knowledge of the Company, threatened against the Company, any officer or
director of the Company, relating to the issuance by the Company of its shares
or the other transactions contemplated by the Company Agreements.
(l)
Compliance with
Law. The Company and its Subsidiaries are in compliance in all
material respects with all applicable Laws, including, as applicable, in
compliance with the U.S. Foreign Corrupt Practices Act of 1977, as
amended. The Company represents and warrants that since (i) January1, 2004, the Company has not, (ii) since the later of January 1, 2004 and the
time a Subsidiary became a Subsidiary, each Subsidiary has not, and (iii) to the
Company’s knowledge, each director, officer, agent, employee or other Person
authorized to act on behalf of the Company or any of its Subsidiaries, in the
course of its actions for, or on behalf of, the Company or any of its
Subsidiaries has not used or promised 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. No director, officer, agent, or senior manager of the
Company is, to the knowledge of the Company after reasonable due diligence, 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 business of
the Company.
(m) NASDAQ. The
Class A Common Shares are registered pursuant to Section 12(b) of the Exchange
Act, and are listed on the NASDAQ Global Select Market (“NASDAQ”), and trading
in the Class A Common Shares has not been suspended and the Company has taken no
action designed to terminate the registration of the Class A Common Shares under
the Exchange Act or to delist the Class A Common Shares from the
NASDAQ.
(n) Opinion of the Company’s
Financial Advisor. The Company’s Board of Directors has
received an opinion from J.P. Morgan plc to the effect that, as of the date
hereof, the Purchase Price to be received by the Company for the Subscription
Shares is fair, from a financial point of view, to the Company. The
Company has delivered to Subscriber a true and complete copy of such
opinion.
2.2. Representations and
Warranties of Subscriber. Subscriber represents and warrants
to the Company as follows:
6
(a) Organization and
Standing. Subscriber is duly organized, validly existing and
in good standing under the laws of Delaware. Subscriber has all
requisite power and authority to enter into the Company Agreements to which it
is a party and to consummate the transactions contemplated hereby and
thereby.
(b) Authorization, Execution and
Delivery and Enforceability. The execution and delivery by
Subscriber of the Company Agreements to which it is a party and the consummation
of the transactions contemplated hereby and thereby, have been duly authorized
by all necessary action on the part of Subscriber. Each of the
Company Agreements to which it is a party has been duly executed and delivered
by Subscriber and constitutes a valid and binding obligation of Subscriber,
enforceable against Subscriber in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
moratorium, reorganization, fraudulent conveyance or similar Laws in effect
which affect the enforcement of creditor’s rights generally or (b) general
principles of equity, whether considered in a proceeding at Law or in
equity.
(c) No
Conflicts. Neither the execution and delivery of the Company
Agreements to which it is a party by Subscriber, nor the performance by
Subscriber of any of its obligations hereunder or thereunder, nor the
consummation of the transactions contemplated hereby or thereby, will violate,
conflict with, result in a breach, or constitute a default (with or without
notice or lapse of time or both) under, give to others any rights of consent,
termination, amendment, acceleration or cancellation of any provision
of (i) the governing documents of Subscriber, (ii) any trust agreement, loan or
credit agreement, note, bond, mortgage, indenture, lease or other agreement,
contract, instrument, permit, concession, franchise, license to which Subscriber
or any of its Affiliates is a party or by which any of its properties or assets
are bound, or (iii) any Law applicable to Subscriber or to its properties or
assets which, in each case, would materially impair or delay the ability of
Subscriber to consummate the transactions contemplated in the Company Agreements
to which it is a party.
(d) Consents and
Approvals. Except for the Consents and Governmental Approvals
set forth on Schedule
2.2(d)(i), no Consent or Governmental Approval is required on the part of
Subscriber or its Affiliates in connection with the execution and delivery of
the Company Agreements to which it is a party or the consummation of the
transactions contemplated hereby or thereby. Except as listed on
Schedule
2.2(d)(ii) and as publicly disclosed, none of the Subscriber or any of
its Affiliates is a party to any stockholder, voting or other agreements
relating to the rights and obligations of the Company’s
stockholders.
(e) Brokers, Finders,
etc. All negotiations relating to this Agreement and the
transactions contemplated by this Agreement have been carried on in such manner
as to not give rise to any valid claim against the Company for any brokerage or
finder’s commission, fee or similar compensation based upon arrangements made by
or on behalf of Subscriber.
(f) Purchase for
Investment. Subscriber acknowledges its understanding that the
offering and sale of the Subscription Shares to be purchased pursuant hereto by
Subscriber are intended to be exempt from registration under the Securities Act
and that the Company is relying upon the truth and accuracy of Subscriber’s
representations and warranties contained herein and Subscriber’s compliance with
this Agreement in order to determine the availability of such exemptions and the
eligibility of Subscriber to acquire the Subscription Shares in accordance with
the terms and provisions of this Agreement. In furtherance thereof,
Subscriber represents and warrants to the Company that:
7
(i)
Subscriber is an accredited investor within the meaning of
Regulation D promulgated under the Securities Act and, if there should be any
change in such status prior to the Closing Date, Subscriber will immediately
inform the Company of such change;
(ii) Subscriber: (A)
has the financial ability to bear the economic risk of its investment in the
Subscription Shares to be purchased pursuant hereto, (B) can bear a total loss
of its investment therein at this time, (C) has no need for liquidity with
respect to its investment therein, (D) has adequate means for providing for its
current needs and contingencies, and (E) has such knowledge, experience and
skill in evaluating and investing in issues of equity securities, including
securities of new and speculative issuers, based on actual participation in
financial, investment and business matters, such that it is capable of
evaluating the merits and risks of an investment in the Company and the
suitability of the Subscription Shares as an investment for itself;
and
(iii) Subscriber
has been given the opportunity to conduct a due diligence review of the Company
concerning the terms and conditions of the offering of the Subscription Shares
to be purchased by Subscriber and other matters pertaining to an investment in
the Subscription Shares, in order for Subscriber to evaluate the merits and
risks of an investment in the Subscription Shares to be purchased by Subscriber
to the extent the Company possesses such information or can acquire it without
unreasonable effort or expense.
(g) No
Registration. Subscriber has been advised that the
Subscription Shares have not been registered under the Securities Act, or any
non-U.S. securities, state securities or blue sky laws, and therefore cannot be
resold unless they are registered under such laws or unless an exemption from
registration thereunder is available. Subscriber is purchasing the
Subscription Shares for its own account for investment, and not with a view to,
or for resale in connection with, the distribution thereof, and has no present
intention of distributing or reselling any thereof. In making the
foregoing representations, Subscriber is aware that it must bear, and represents
that Subscriber is able to bear, the economic risk of such investment for an
indefinite period of time.
(h) Restrictions on
Shares. Subscriber is aware of and familiar with the
restrictions imposed on the transfer of any Subscription Shares, including,
without limitation, the restrictions contained herein or in the Company’s
Bye-laws, the exact form of Registration Rights Agreement (subject to Section 1.4 hereof)
attached hereto as Exhibit B (the “Registration Rights
Agreement”), the exact form of Investor Rights Agreement (subject to
Section 1.4
hereof) attached hereto as Exhibit C (the “Investor Rights
Agreement”) and the TW Voting Agreement.
8
ARTICLE
III
COVENANTS
3.1. Restrictive
Legends.
(a) Subscriber
acknowledges and agrees that the Subscription Shares, any Class A Common Shares
issued upon conversion of any Class B Subscription Shares, and any securities
issued or issuable with respect to such shares by way of stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation, going private, tender offer, amalgamation, change of control,
other reorganization or otherwise, shall bear restrictive legends in
substantially the following form:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE
OFFERED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OTHER THAN
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID
ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION SPECIFIED IN AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO CENTRAL EUROPEAN MEDIA ENTERPRISES LTD. (THE
“COMPANY”) OR OTHERWISE AS PERMITTED BY LAW.
The
legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of any such Subscription Shares or
Class A Common Shares issued upon conversion of any Class B Subscription Shares
upon which it is stamped, if such Subscription Shares or Class A Common Shares
are registered for sale under an effective registration statement filed under
the Securities Act or if such shares are proposed to be sold pursuant to an
exemption from registration and the Company receives an opinion of counsel
reasonably satisfactory to it with respect to compliance with such
exemption.
(b) The
Subscription Shares, any Class A Common Shares issued upon conversion of any
Class B Subscription Shares, and any securities issued or issuable with respect
to such shares by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation, going private,
tender offer, amalgamation, change of control, other reorganization or
otherwise, shall bear a restrictive legend in substantially the following form
until the earlier of (i) such time as the Investor Rights Agreement shall have
been terminated or (ii) such time as such shares (or the holder thereof) shall
no longer be subject to the terms of the Investor Rights Agreement:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE RESTRICTIONS
CONTAINED IN AN INVESTOR RIGHTS AGREEMENT, DATED AS OF [•], 2009, BY AND AMONG
THE COMPANY AND CERTAIN OF THE SHAREHOLDERS OF THE COMPANY, AS MODIFIED OR
SUPPLEMENTED FROM TIME TO TIME (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE COMPANY). ANY TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE THAT CONTRAVENE SUCH RESTRICTIONS SHALL BE NULL AND
VOID.
9
(c) The
Class A Subscription Shares, any Class A Common Shares acquired by Subscriber
upon conversion of the Class B Subscription Shares and any securities issued or
issuable with respect to the Class A Subscription Shares or any such Class A
Common Shares by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation, going private,
tender offer, amalgamation, change of control, other reorganization or
otherwise, shall bear an additional restrictive legend in substantially the
following form until the earlier of (i) such time as the Registration Rights
Agreement shall have been terminated or (ii) such time as such shares (or the
holder thereof) shall no longer be subject to the terms of the Registration
Rights Agreement:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE RESTRICTIONS
CONTAINED IN A REGISTRATION RIGHTS AGREEMENT, DATED AS OF [•], 2009, BY AND
BETWEEN THE COMPANY AND TW MEDIA HOLDINGS LLC, AS MODIFIED OR SUPPLEMENTED FROM
TIME TO TIME (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY). ANY
TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE THAT CONTRAVENE SUCH
RESTRICTIONS SHALL BE NULL AND VOID.
(d) The
securities of the Company subject to the TW Voting Agreement, and any securities
issued or issuable with respect to such securities by way of stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation, going private, tender offer, amalgamation, change of
control, other reorganization or otherwise, shall bear a restrictive legend in
substantially the following form until the earlier of (i) such time as the TW
Voting Agreement shall have been terminated or (ii) such time as such shares (or
the holder thereof) shall no longer be subject to the terms of the TW Voting
Agreement:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE RESTRICTIONS
CONTAINED IN AN IRREVOCABLE VOTING DEED AND CORPORATE REPRESENTATIVE
APPOINTMENT, DATED AS OF [•], 2009, BY AND AMONG THE COMPANY, RSL SAVANNAH LLC,
RONALD S. LAUDER AND TW MEDIA HOLDINGS LLC, AS MODIFIED OR SUPPLEMENTED FROM
TIME TO TIME (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY).
If
required by Law, Subscriber agrees to comply with applicable prospectus delivery
requirements in connection with any sale or transfer of the Subscription Shares,
including those represented by a certificate(s) from which the legend has been
removed.
3.2. Covenants Pending
Closing. Except as set forth on Schedule 3.2, prior
to the Closing, the Company shall conduct and shall cause its Subsidiaries to
conduct their respective businesses in the ordinary course and shall not, and
shall not permit its Subsidiaries to, without the prior written consent of
Subscriber, (i) undertake any corporate action that would require the
affirmative consent of Subscriber pursuant to the Investor Rights Agreement if
such agreement were in effect on the Effective Date or (ii) acquire or agree to
acquire (by way of merger, amalgamation, consolidation, tender offer,
recapitalization, reorganization, scheme of arrangement or other transaction or
any purchase of 20% or more of the assets, equity interests, capital stock or
securities convertible into equity interests or capital stock) Media Pro
Management S.A., Media Pro B.V. or any successor entities thereto or
subsidiaries thereof. The Company shall promptly advise Subscriber of
any action or event of which it becomes aware which has the effect of making
materially incorrect any of such representations or warranties or which has the
effect of rendering any of such covenants incapable of
performance.
10
3.3. Limits on Additional
Issuances. Neither the Company nor any of its Subsidiaries
shall sell, offer for sale or solicit offers to buy or otherwise negotiate in
respect of any “security” (as defined in the Securities Act) that could be
integrated with the sale of the Subscription Shares in a manner that could
require the registration of the Subscription Shares under the Securities
Act.
3.4. Consents and
Approvals.
(a) From
and after the date hereof, the Company shall use its reasonable best efforts to
obtain as promptly as practicable the Consents and Governmental Approvals
required on the part of the Company in connection with the transactions
contemplated by the Company Agreements. The fees and expenses related
to obtaining such Consents and Governmental Approvals on the part of the Company
shall be paid by the Company.
(b) From
and after the date hereof, Subscriber shall use its reasonable best efforts to
obtain as promptly as practicable the Consents and Governmental Approvals
required on the part of Subscriber in connection with the transactions
contemplated by the Company Agreements to which it is a party. The
fees and expenses related to obtaining such Consents and Governmental Approvals
on the part of Subscriber shall be paid by Subscriber.
3.5. Securities
Laws. The Company shall timely make all filings and reports
relating to the offer and sale of the Subscription Shares required under
applicable securities Laws, including any “blue sky” laws of the states of the
United States. The Company shall pay all fees and expenses in
connection with satisfying its obligations under this Section
3.5.
3.6. Use of
Proceeds. The proceeds received by the Company from the
issuance and sale of the Subscription Shares shall be used by the Company to
finance acquisitions and for other general corporate purposes.
3.7. Proxy Material; Company
Stockholder Meeting. The Company shall (a) as promptly as
reasonably practicable after the date hereof (but in any event within ten (10)
Business Days of the Effective Date) prepare and file with the SEC a preliminary
proxy statement (as amended and supplemented, the “Company Proxy
Statement”) relating to the general meeting of the stockholders of the
Company to be held to consider the issuance of the Subscription Shares (the
“Company Stockholders
Meeting”), (b) respond as promptly as reasonably practicable to any
comments received from the SEC with respect to such filings and shall provide
copies of such comments to Subscriber promptly upon receipt, (c) as promptly as
reasonably practicable prepare and file any amendments or supplements necessary
to be filed in response to any SEC comments or as required by Law, (d) use all
reasonable efforts to have cleared by the SEC and thereafter mail to its
stockholders as promptly as reasonably practicable, the Company Proxy Statement
and all other customary proxy or other materials for meetings such as the
Company Stockholders Meeting, (e) to the extent required by applicable Law, as
promptly as reasonably practicable prepare, file and distribute to the Company
stockholders (in the case of the Company Proxy Statement) any supplement or
amendment to the Company Proxy Statement if any event shall occur which requires
such action at any time prior to the Company Stockholders Meeting, and (f)
otherwise use all reasonable efforts to comply with all requirements of Law
applicable to the Company Stockholders Meeting. The Company shall
provide Subscriber a reasonable opportunity to review and, solely with respect
to those portions of the Company Proxy Statement that contain
descriptions of the Company Agreements and the transactions contemplated
thereby, comment upon the Company Proxy Statement, or any amendments or
supplements thereto, prior to filing the same with the SEC. The
Company Proxy Statement shall include, among other things, the recommendation of
the Company’s Board of Directors that the Company stockholders vote in favor of
the approval of the issuance of the Subscription Shares and the other
transactions contemplated by the Company Agreements and the Company’s Board of
Directors shall take all reasonable lawful action to solicit the Requisite
Vote.
11
ARTICLE
IV
CONDITIONS
TO THE STOCK PURCHASE
4.1. Conditions to the
Obligations of Subscriber. The obligation of Subscriber to
consummate the transactions contemplated by this Agreement shall be subject to
the fulfillment or waiver by Subscriber on or prior to the Closing Date of the
following conditions:
(a) No Injunction,
etc. Consummation of the transactions contemplated hereby
shall not have been restrained, enjoined or otherwise prohibited or made illegal
by any applicable Law.
(b) Representations and
Warranties. (i) The representations and warranties of the
Company contained in this Agreement that are contained in Sections 2.1(a),
2.1(b), 2.1(c), 2.1(d) and 2.1(e) or are
qualified as to materiality or Material Adverse Effect shall be true at and as
of the date hereof and at and as of the Closing Date as if made at and as of
such date (except, in each case, as to such representations and warranties made
as of a specific date, which shall have been true at and as of such date) and
(ii) the other representations and warranties of the Company contained in this
Agreement and in any certificate or other writing delivered by the Company
pursuant hereto shall be true in all material respects at and as of the date
hereof and at and as of the Closing Date as if made at and as of such date
(except, in each case, as to such representations and warranties made as of a
specific date, which shall have been true at and as of such date), and
Subscriber shall have received a certificate signed by an officer of the Company
to the foregoing effect.
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(c) Material Adverse
Change. There shall not have been a Material Adverse Change
from the Effective Date to the Closing Date, and Subscriber shall have received
a certificate signed by an officer of the Company to the foregoing
effect.
(d) Performance of
Obligations. The Company shall have performed and complied
with all of the obligations and conditions in this Agreement required to be
performed or complied with by it on or prior to the Closing Date, and Subscriber
shall have received a certificate signed by an officer of the Company to the
foregoing effect.
(e)
Issuance of Subscription
Shares. The Company shall issue the Subscription Shares to
Subscriber.
(f)
Other
Agreements. The Company and each other party thereto (other
than Subscriber) shall have executed and delivered each of the Company
Agreements.
(g) Consents and Governmental
Approvals. The parties shall have received all Consents and
Governmental Approvals set forth on Schedule
4.1(g).
(h) NASDAQ
Qualification. The Subscription Shares and the Class A Common
Shares reserved for issuance upon conversion of the Class B Subscription Shares
shall have been approved for listing on NASDAQ, subject to official notice of
issuance. The Class A Common Shares shall not have been delisted on
NASDAQ.
(i)
Shareholder
Approval. The Requisite Vote shall have been
obtained.
(j)
TW
Designated Director. The individual designated in a written
notice delivered by TW to the Company at least ten (10) Business Days’ prior to
the Closing shall have been elected to the Board of Directors of the Company
effective as of the Closing and the individual designated in a
written notice delivered by TW to the Company prior to the Closing shall have
the right to attend meetings of the Board of Directors of the Company and
participate at such meetings of the Board of Directors of the Company as a
non-voting observer.
4.2. Conditions to the
Obligations of the Company. The obligation of the Company to
consummate the transactions contemplated by this Agreement shall be subject to
the fulfillment or waiver by the Company on or prior to the Closing Date of the
following conditions:
(a) No Injunction,
etc. Consummation of the transactions contemplated hereby
shall not have been restrained, enjoined or otherwise prohibited or made illegal
by any applicable Law.
(b) Representations and
Warranties. (i) The representations and warranties of
Subscriber contained in this Agreement that are contained in Sections 2.2(a) and
2.2(b) or are
qualified as to materiality shall be true at and as of the date hereof and at
and as of the Closing Date as if made at and as of such date (except, in each
case, as to such representations and warranties made as of a specific date,
which shall have been true at and as of such date) and (ii) the other
representations and warranties of Subscriber contained in this Agreement and in
any certificate or other writing delivered by Subscriber pursuant hereto shall
be true in all material respects at and as of the date hereof and at and as of
the Closing Date as if made at and as of such date (except, in each case, as to
such representations and warranties made as of a specific date, which shall have
been true at and as of such date), and the Company shall have received a
certificate signed by an authorized officer of Subscriber to the foregoing
effect.
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(c) Performance of
Obligations. Subscriber shall have performed and complied with
all of the obligations and conditions in this Agreement required to be performed
or complied with by it on or prior to the Closing Date, and the Company shall
have received a certificate signed by an authorized officer of Subscriber to the
foregoing effect.
(d) Payment of Purchase
Price. Subscriber shall have paid the Purchase Price to the
Company.
(e) Other
Agreements. Each of Subscriber, RSL Savannah and Ronald S.
Lauder, as applicable, shall have executed and delivered the Company
Agreements.
(f) Consents and Governmental
Approvals. The parties shall have received all Consents and
Governmental Approvals set forth on Schedule
4.1(g).
(g) Shareholder
Approval. The Requisite Vote shall have been
obtained.
ARTICLE
V
INDEMNIFICATION
5.1. Survival of Representations
and Warranties. All representations and warranties under this
Agreement shall survive the Closing until the expiration of one (1) year
following the Closing Date. All agreements and covenants contained in
this Agreement shall survive the Closing indefinitely (except to the extent
expressly provided in this Agreement).
5.2. Indemnification.
(a) Notwithstanding
any investigation at any time made by or on behalf of Subscriber or any
Subscriber Indemnified Persons or any knowledge or information that Subscriber
or any Subscriber Indemnified Person may now have or hereafter obtain, the
Company shall indemnify, defend and hold harmless Subscriber and Subscriber’s
members, officers, directors, employees, agents, Affiliates and representatives
(collectively with Subscriber, the “Subscriber Indemnified
Persons”) against any and all losses, liabilities, damages, diminution in
value of the Subscription Shares (other than diminution in value of the
Subscription Shares suffered or sustained in the case of any indemnity
obligations solely pursuant to clause (iii) of this Section 5.2(a)) and
expenses, including all reasonable costs and expenses related thereto or
incurred in enforcing this Article V (“Losses”), that any
Subscriber Indemnified Person has suffered or sustained (i) arising directly
from the breach of any of the representations or warranties of the Company
contained in this Agreement, (ii) arising directly from the breach of any
covenant or agreement of the Company contained in this Agreement or (iii)
arising directly from any action, suit, claim, proceeding or investigation
instituted against such Subscriber Indemnified Person by any Governmental
Entity, any holder of equity securities of the Company who is not an Affiliate
of such Subscriber Indemnified Person or any other Person (other than the
Company) who is not an Affiliate of such Subscriber Indemnified Person relating
to this Agreement or the transactions contemplated by the Company Agreements
(unless (x) such action resulted from a breach of such Subscriber Indemnified
Person’s representations, warranties or agreements contained in any Company
Agreement or any violations by such Subscriber Indemnified Person of state or
federal securities laws or any conduct by such Subscriber Indemnified Person
which constitutes fraud or (y) such action is brought by Ronald S. Lauder or any
of his Affiliates directly against such Subscriber Indemnified Person), it being
understood that, for purposes of this Section 5.2(a), such
Subscriber Indemnified Person shall not be entitled to indemnification for
Losses for diminution in value of the Subscription Shares if the transactions
contemplated by this Agreement are not consummated.
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(b) From
and after the Closing Date, and notwithstanding any investigation at any time
made by or on behalf of the Company or any Company Indemnified Persons or any
knowledge or information that the Company or any Company Indemnified Person may
now have or hereafter obtain, Subscriber shall indemnify, defend and hold
harmless the Company and its officers, directors, employees, agents and
representatives (collectively, the “Company Indemnified
Persons” and together with the Subscriber Indemnified Persons, the “Indemnified Persons”)
against any and all Losses that any Company Indemnified Person has suffered or
sustained (i) arising from the breach of any of the representations or
warranties of Subscriber contained in this Agreement or (ii) arising from the
breach of any covenant or agreement of Subscriber contained in this Agreement
and none of the Company Indemnified Persons shall be liable to the Subscriber or
any holder of equity securities of Subscriber for or with respect to any such
loss.
(c) The
parties hereto hereby acknowledge and agree that for purposes of this Article V in
determining whether any representation or warranty has been breached and for
purposes of determining the amount of Losses resulting therefrom, any and all
“Material Adverse Effect,”“material adverse effect,”“materiality” and similar
exceptions and qualifiers set forth in any such representations and warranties
shall be disregarded. The parties hereto hereby further acknowledge
and agree that any claim for indemnification made in writing in accordance with
the terms of this Article V on or prior
to the applicable expiration date with respect to any such claim as set forth
herein shall survive the Closing and any such applicable expiration date until
the final resolution thereof.
(d) In
the case of any claim asserted by an Indemnified Person under this Agreement,
notice shall be given by such Indemnified Person to the party required to
provide indemnification (the “Indemnifying Party”)
promptly after such Indemnified Person has actual knowledge of any claim as to
which indemnity may be sought, and the Indemnified Person shall permit the
Indemnifying Party (at the expense of such Indemnifying Party) to assume the
defense of any claim or any litigation resulting therefrom, provided that (i)
counsel for the Indemnifying Party who shall conduct the defense of such claim
or litigation shall be reasonably satisfactory to the Indemnified Person, and
the Indemnified Person may participate in such defense at such Indemnified
Person’s expense and (ii) the failure of any Indemnified Person to give notice
as provided herein shall not relieve the Indemnifying Party of its
indemnification obligation under this Agreement, except to the extent that such
failure results in a lack of actual notice to the Indemnifying Party and such
Indemnifying Party is materially prejudiced as a result of such failure to give
notice. Any settlement or compromise of such asserted claim by the
Indemnifying Party shall require the prior written consent of the Indemnified
Person, which consent shall not be unreasonably withheld, conditioned or
delayed, provided that no such consent shall be required as long as it is solely
a monetary settlement (that will be paid entirely by the Indemnifying Party)
that provides a full release of the Indemnified Person with respect to such
matter and does not contain an admission of liability on the part of the
Indemnified Person and will not have an ongoing adverse affect on the business
or operations of the Indemnified Person.
15
(e) Absent
fraud, willful misconduct or gross negligence by the party against whom a remedy
is sought, from and after the Closing, the sole and exclusive remedies with
respect to any and all claims relating to the subject matter of this Agreement
shall be (a) monetary damages in accordance with the indemnification provisions
set forth in Article
V and (b) the remedies set forth in Section
7.7.
(f)
Notwithstanding any provision herein to the
contrary, the maximum liability of the Company with respect to the losses
suffered by the Subscriber Indemnified Person as a result of any breach of any
representation or warranty shall be an aggregate amount equal to the Purchase
Price; provided that the Company will be required to indemnify any Subscriber
Indemnified Person for any breaches of representations and warranties only if
such losses in the aggregate exceed US $4,225,000 and then only to the extent
such losses exceed such amount.
(g) Notwithstanding
any other provision of this Agreement, the liability for indemnification of any
Indemnifying Party under this Agreement shall not include consequential,
indirect, punitive or exemplary damages. The foregoing shall not
limit in any respect any claim based on diminution of value of the Subscription
Shares or of the Class A Common Shares issuable upon conversion of any Class B
Subscription Shares arising directly from a breach giving rise to such
indemnification obligation of the Indemnifying Party.
(h) Any
indemnification of an Indemnified Person by an indemnifying person pursuant to
this Section shall be effected by wire transfer of immediately available funds
from the Indemnifying Party to an account designated by the Indemnified Person
within 15 days after the determination thereof.
ARTICLE
VI
TERMINATION
6.1. Termination. This
Agreement may be terminated at any time prior to the Closing (TW shall have the
right to enforce all rights of Subscriber arising pursuant to this Section
6.1):
16
(a) by
the mutual written consent of the Company and Subscriber;
(b) by
either the Company or Subscriber if the Closing has not occurred on or before
December 31, 2009, provided that the right to terminate this Agreement under
this clause (b) will not be available to any party whose failure to fulfill in
any material respect any obligation under this Agreement has been the cause of,
or resulted in, the failure of such Closing to occur on or before such
date;
(c) by
either the Company or Subscriber if any Governmental Entity shall have issued an
injunction or other ruling prohibiting the consummation of any of the
transactions contemplated by this Agreement and the Company Agreements and such
injunction or other ruling shall not be subject to appeal or shall have become
final and unappealable;
(d) by
Subscriber if the Company shall have materially breached the terms of this
Agreement and such breach is not cured within twenty (20) Business Days after
receiving notice thereof; or
(e) by
the Company if Subscriber shall have materially breached the terms of this
Agreement and such breach is not cured within twenty (20) Business Days after
receiving notice thereof.
6.2. Effect of
Termination. In the event that this Agreement is terminated
under Section
6.1, all further obligations of the parties under this Agreement, other
than pursuant to this Section 6.2 and Article VII, will be
terminated without further liability of any party to any other party, provided
that such termination will not relieve any party from liability for its breach
of this Agreement prior to such termination.
ARTICLE
VII
DEFINITIONS
AND MISCELLANEOUS
7.1. Definitions. As
used in this Agreement, the following capitalized terms have the respective
meanings set forth below:
(a) “Affiliate” of any
Person, means any other Person that, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first Person. As used in this definition, the term “control,”
including the correlative terms “controlling,”“controlled by” and “under common
control with,” means the possession, directly or indirectly, of the power to
direct or cause the direction of management or policies (whether through
ownership of securities or any partnership or other ownership interest, by
contract or otherwise) ); provided, however that
Subscriber shall not be deemed to be an “Affiliate” of either Ronald S. Lauder
or RSL Savannah for any purpose hereunder.
(b) “Business Day” means a
day, not being a Saturday or Sunday, when banks are open in London (England) and
New York (United States) for commercial business.
17
(c) “Class A Common
Shares” means the shares of Class A Common Stock, par value $0.08 per
share, of the Company, having such rights associated with such Class A Common
Stock as set forth in the governing documents of the Company.
(d) “Class B Common
Shares” means the shares of Class B Common Stock, par value $0.08 per
share, of the Company, having such rights associated with such Class B Common
Stock as set forth in the governing documents of the Company.
(e) “Company Agreements”
means collectively, this Agreement, the Registration Rights Agreement, the TW
Voting Agreement and the Investor Rights Agreement.
(f) “Company Reports”
means the reports, schedules, forms, statements and other documents required to
be filed by the Company under the Securities Act and the Exchange Act after
January 1, 2006.
(g) “Consents” means any
consent, approval, authorization, waiver, permit, grant, franchise, concession,
agreement, license, certificate, exemption, order, registration, declaration,
filing, report or notice of, with or to any Person.
(h) “Exchange Act” means
the Securities Exchange Act of 1934, as amended.
(i) “Governmental
Approvals” means any Consent of, made with or obtained from, any
Governmental Entity.
(j) “Governmental Entity”
means any nation or government or multinational body, any state, agency,
commission, or other political subdivision thereof or any entity (including a
court) exercising executive, legislative, judicial or administration functions
of or pertaining to government, any stock exchange or self regulatory entity
supervising, organizing and supporting any stock exchange.
(k) “Laws” means all laws,
statutes, ordinances, rules, regulations, judgments, injunctions, orders and
decrees.
(l) “Material Adverse
Effect” or “Material Adverse
Change” means, with respect to the Company, any effect, event,
development or change that, individually or together with any other event,
development or change, is or is reasonably expected to (A) be materially adverse
to the business, assets, results of operations or financial condition
of the Company and the Company’s Subsidiaries, taken as a whole or (B) prevent
or materially impair or materially delay the ability of the Company to
consummate the transactions contemplated by the Company Agreements or to
otherwise perform its obligations under the Company Agreements; provided, however, that in no
event shall any of the following, alone or in combination, be deemed to
constitute, nor shall any of the following be taken into account in determining
whether there has been, a Material Adverse Effect or a Material Adverse
Change: (a) a change in the market price or trading volume of the
Class A Common Shares (provided that the underlying changes, events,
occurrences, state of facts or developments that caused or contributed to any
such change may otherwise be taken into consideration in determining whether a
Material Adverse Effect or Material Adverse Change has occurred); (b) (i)
changes in conditions in the global economy, the economies of the countries in
which the Company and the Company’s Subsidiaries operate or the capital or
financial markets generally, including changes in exchange rates; (ii) changes
in applicable Laws (provided that such changes in Laws do not result in the
cancellation of any broadcast license(s) or franchise(s) to which the Company or
any of its Subsidiaries is a party or by which any of their properties or assets
are bound as set forth on Schedule 2.1(f)(ii)
the cancellation of which would be material as indicated therein) or national or
international political conditions (including hostilities or terrorist attack);
or (iii) changes generally affecting the industry in which the Company and the
Company’s Subsidiaries operate; in each case with respect to clauses (i), (ii)
and (iii), to the extent such changes or developments referred to therein do not
have a disproportionate impact on the Company and its Subsidiaries, taken as a
whole, relative to other industry participants; (c) changes in United States
generally accepted accounting principles or other accounting principles after
the Effective Date; (d) the negotiation, execution, announcement or pendency of
this Agreement or the transactions contemplated hereby or the consummation of
the transactions contemplated by this Agreement, including the impact thereof on
relationships, contractual or otherwise, with customers, suppliers, vendors,
lenders, mortgage brokers, investors, venture partners or employees, to the
extent such changes or developments can be directly attributed to the
announcement or performance of the Company Agreements and the transactions
contemplated thereby; (e) natural disasters; (f) any affirmative action
knowingly taken by Subscriber that could reasonably be expected to give rise to
a Material Adverse Effect (without giving effect to this clause (f) in the
definition thereof); (g) any action taken by the Company at the request or with
the express consent of Subscriber; and (h) with respect to Section 4.1(c) only,
any adverse effect, event, development or change to the business, results of
operations or financial condition of the Company or the Company’s Subsidiaries
that is cured before the Closing Date.
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(m) “Person” means any
individual, corporation, partnership, limited liability company, association or
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
(n) “Requisite Vote” means
the approval of the issuance of the Subscription Shares by a majority of the
votes cast by the holders of the Class A Common Shares and the Class B Common
Shares entitled to vote thereon, voting together as a single class.
(o) “Subsidiary” means,
with respect to any Person, another Person of which 50% or more of the voting
power of the equity securities or equity interests is owned, directly or
indirectly, by such Person.
7.2. Notices. All
notices, consents, requests, instructions, approvals and other communications
provided for in this Agreement shall be in writing and shall be deemed validly
given upon personal delivery or one day after being sent by overnight courier
service or on the date of transmission if sent by facsimile (so long as for
notices or other communications sent by facsimile, the transmitting facsimile
machine records electronic conformation of the due transmission of the notice),
at the following address or facsimile number, or at such other address or
facsimile number as a party may designate to the other parties:
7.3. Amendment. This
Agreement may be amended, modified or supplemented only by a written instrument
executed by each of the parties hereto.
7.4. Assignment. Except
as permitted herein, neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assignable or otherwise transferable by either
party hereto (whether by operation of Law or otherwise) without the prior
written consent of the other party hereto.
7.5. Applicable Law; Consent to
Jurisdiction.
(a) THIS
AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF
THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAWS (OTHER THAN SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
(b) ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT SHALL BE BROUGHT
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK, NEW YORK
OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK (EACH,
A “NEW YORK COURT”), AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
PARTY HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
APPELLATE COURTS FROM ANY THEREOF. EACH PARTY HERETO HEREBY
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF TO SUCH
PARTY BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT
REQUESTED, TO SUCH PARTY AT ITS ADDRESS SPECIFIED IN SECTION
7.2. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN
SUCH RESPECTIVE JURISDICTIONS.
7.6. Waiver of Jury
Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I)
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE EITHER OF THE FOREGOING WAIVER, (II) IT UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (III) IT MAKES SUCH WAIVER
VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVER IN THIS SECTION
7.6.
21
7.7. Specific
Performance. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms of were otherwise
breached. It is accordingly agreed that the parties shall be entitled
to, in addition to the other remedies provided herein, specific performance of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any New York Court in addition to the other remedies to which such
parties are entitled.
7.8. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original and all of which together shall be deemed to be one and
the same instrument. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile or electronic transmission of
a copy of this Agreement bearing the signature of the party so delivering this
Agreement.
7.9. Expenses. Each
party will be responsible for its own fees and expenses related to this
Agreement and the transactions contemplated hereby.
7.10. Successors and
Assigns. This Agreement shall inure to the benefit of the
parties, and shall be binding upon the parties and their respective successors,
permitted assigns, heirs and legal representatives.
7.11. No Third Party
Beneficiaries. Except as contemplated under Article V, nothing in
this Agreement will confer any rights upon any person that is not a party or a
successor or permitted assignee of a party to this Agreement.
7.12. Entire
Agreement. This Agreement, together with the Registration
Rights Agreement, the Investor Rights Agreement, the TW Voting Agreement and
that certain letter agreement by and among Ronald S. Lauder and Subscriber,
dated as of the date hereof (the “TW-Lauder Letter
Agreement”), contain the entire agreement of the parties with respect to
the subject matter hereof and supersede all other prior agreements,
understandings, statements, representations and warranties, oral or written,
express or implied, between the parties and their respective Affiliates,
representatives and agents in respect of such subject matter.
7.13. TW Voting
Agreement. In the event of any inconsistency or conflict
between this Agreement and the TW Voting Agreement with respect to the voting of
the Subscription Shares, each party hereto agrees that the TW Voting Agreement
shall prevail to the extent of such inconsistency or conflict.
7.14. Construction. Whenever
the context requires, the gender of all words used in this Agreement includes
the masculine, feminine, and neuter. All references to Articles and
Sections refer to articles and sections of this Agreement, and all references to
Exhibits and Annexes are to exhibits and annexes attached hereto, each of which
is made a part hereof for all purposes. Where any provision in this
Agreement refers to action to be taken by any Person, or which such Person is
prohibited from taking, such provision will be applicable whether such action is
taken directly or indirectly by such Person, including actions taken by or on
behalf of any Affiliate of such Person. All accounting terms used
herein and not otherwise defined herein will have the meanings accorded them in
accordance with U.S. generally accepted accounting principles and, except as
expressly provided herein, all accounting determinations will be made in
accordance with such accounting principles in effect from time to
time. Unless the context otherwise requires: (i) a reference to a
document includes all amendments, restatements or supplements to, or
replacements or novations of, that document; (ii) the use of the terms “include”
and “including” mean “include, without limitation” and “including, without
limitation”, respectively; (iii) the word “or” shall be disjunctive but not
exclusive; (iv) unless expressly provided otherwise, the measure of a period of
one month or year for purposes of this Agreement shall be that date of the
following month or year corresponding to the starting date; provided, that if no
corresponding date exists, the measure shall be that date of the following month
or year corresponding to the next day following the starting date (for example,
one month following February 18 is March 18, and one month following March 31 is
May 1); and (v) a reference to a statute, regulations, proclamation, ordinance
or by-law includes all statutes, regulations, proclamation, ordinances or
by-laws amending, consolidating or replacing it, whether passed by the same or
another Governmental Entity with legal power to do so, and a reference to a
statute includes all regulations, proclamations, ordinances and by-laws issued
under the statute. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any
party.
22
7.15. Descriptive
Headings. The headings of the articles, sections and
subsections of this Agreement are inserted for convenience of reference only and
shall not be deemed to constitute a part hereof or affect the interpretation
hereof.
7.16. Severability. Every
term and provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever,
such term or provision will be enforced to the maximum extent permitted by law
and, in any event, such illegality or invalidity shall not affect the validity
of the remainder of this Agreement.
7.17. Limitation on Enforcement of
Remedies. The Company hereby agrees that it will not assert
against the members of Subscriber any claim it may have under this Agreement by
reason of any failure or alleged failure by Subscriber to meet its obligations
hereunder. The foregoing shall not limit any claims or remedies
against any Persons that the Company may assert under the TW Voting Agreement,
the Registration Rights Agreement or the Investor Rights Agreement.
[SIGNATURE
PAGE FOLLOWS]
23
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
CENTRAL
EUROPEAN MEDIA
ENTERPRISES
LTD.
By:
/s/
Wallace Macmillan
Name:
Wallace Macmillan
Title:
Chief Financial
Officer
TW
MEDIA HOLDINGS LLC
By:
/s/
James E. Burtson
Name:
James E. Burtson
Title:
Senior Vice
President
EXHIBIT
A
Irrevocable
Voting Deed and Corporate Representative Appointment
IRREVOCABLE
VOTING DEED AND
CORPORATE
REPRESENTATIVE APPOINTMENT
This
IRREVOCABLE VOTING DEED AND CORPORATE REPRESENTATIVE APPOINTMENT (this “Deed”) is made on [•], 2009,
by and among (1) RSL Savannah LLC, a Delaware limited liability company (“RSL Savannah”) (RSL Savannah
together with all RSL Permitted Transferees (including Ronald S. Lauder (“RSL”)) and their respective
successors, permitted assigns, heirs and legal representatives are herein
referred to as the “RSL
Investors”), (2) TW Media Holdings LLC, a Delaware limited liability
company (“TW”) (TW
together with all TW Permitted Transferees and their respective successors,
permitted assigns, heirs and legal representatives are herein referred to as the
“TW Investors”) and (3)
Central European Media Enterprises Ltd., a Bermuda company (the “Company”). Each
capitalized term used but not otherwise defined herein shall have the meaning
ascribed to such term in the Investor Rights Agreement, dated as of the date
hereof, by and among RSL, RSL Savannah, RSL Investment LLC, a Delaware limited
liability company, RSL Investments Corporation, a Delaware corporation, TW, the
Company and the other parties set forth therein (as such may amended, modified,
or supplemented from time to time, the “Investor Rights
Agreement”).
Recitals.
WHEREAS, the Company and TW
are parties to the TW Subscription Agreement, dated as of March 22, 2009,
pursuant to which the Company has, at the same time as entering into this Deed,
issued to TW four million five hundred thousand (4,500,000) Class B Common
Shares (the “TW Class B Common
Shares”) and fourteen million five hundred thousand (14,500,000) Class A
Common Shares (the “TW Class A
Common Shares” and, together with the TW Class B Common Shares, the
“TW Shares”), on the
terms and conditions set forth in the TW Subscription Agreement;
WHEREAS, RSL is the sole
member of RSL Savannah LLC;
WHEREAS, TW hereby agrees that
RSL Savannah or such other Permitted Holder (as defined below) as RSL Savannah
may from time to time nominate for such purpose (the “Voting Rights Holder”) shall
have the exclusive right, and RSL Savannah hereby accepts such right, on the
terms and conditions set forth herein, to exercise the power to vote, except in
connection with any action, vote or consent to be taken or given in respect of
the exclusions to the appointment described in Section 4 below, (a) any and all
TW Shares owned by the TW Investors, (b) any and all Class A Common Shares,
Class B Common Shares or any other Equity Securities owned by the TW Investors
that any TW Investor may acquire hereafter and (c) any Equity Securities owned
by the TW Investors issued or issuable in exchange for or with respect to or
otherwise deriving from any such TW Shares, Class A Common Shares, Class B
Common Shares or such other Equity Securities, whether (i) by way of dividend,
split, subdivision, conversion or consolidation of shares or (ii) in connection
with a reclassification, recapitalization, amalgamation, merger, consolidation,
going private, tender offer, change of control, other reorganization or similar
transaction, and in each case in clauses (a) through (c) above, whether owned
beneficially or of record, after the date hereof (including, without limitation,
all Class A Common Shares and/or Class B Common Shares Transferred to any TW
Investor by an RSL Investor or an Affiliate thereof) (collectively, the “Subject
Shares”);
WHEREAS, in connection
therewith, the parties hereto desire to enter into this Deed to provide for
certain matters with respect to voting of the Subject Shares; and
WHEREAS, TW hereby agrees and
acknowledges that the entry by it into this Deed, on the terms and conditions
set forth herein, is a condition to the entry by the Company into the TW
Subscription Agreement.
NOW, THEREFORE, in
consideration of the foregoing, and the mutual agreements set forth herein and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Right to Vote the Subject
Shares. Effective as of the Closing Date, each TW Investor
hereby irrevocably agrees in relation to the Subject Shares that the Voting
Rights Holder shall be entitled to exercise, in its absolute discretion and to
the exclusion of the TW Investors in respect of the Subject Shares, all the
voting rights of each of the TW Investors with respect to the Subject
Shares (the “TW
Voting Rights”) until such time as this Deed terminates in accordance
with its terms; provided, however, that the TW Voting Rights with respect to the
Subject Shares shall remain with the TW Investors in connection with any action,
vote or consent to be taken or given in respect of the exclusions to the
appointment described in Section 4 below (only
to the extent of such exclusion and only in respect of the Subject
Shares). The Voting Rights Holder shall take any and all steps that
it deems reasonably necessary in order to carry out its appointment hereunder
and TW hereby agrees to take, and agrees to procure that each TW Investor takes,
upon the request of the Voting Rights Holder, such further action and to execute
and to cause to be executed such other instruments as necessary to effectuate
the intent of this Deed. TW hereby irrevocably undertakes, to the
Voting Rights Holder and the Company, and agrees to procure that each TW
Investor undertakes to the Voting Rights Holder and the Company, not to appoint
any Person (other than a Voting Rights Holder) as its representative, proxy or
attorney to attend any general meeting of the Company or to sign any written
resolution of shareholders of the Company or otherwise to exercise any of the TW
Voting Rights except, with respect to the Subject Shares only, in connection
with any action, vote or consent to be taken or given in respect of the
exclusions to the appointment described in Section 4 below (only
to the extent of such exclusion and only in respect of the Subject
Shares). Prior to the Transfer of any Subject Shares, to the fullest
extent permitted by applicable Law in the case of any Involuntary Transfer, TW
shall cause any TW Permitted Transferee of any Subject Shares, as a condition of
its receipt of the Subject Shares, to execute a joinder to this Deed in the form
attached hereto as Exhibit A, whereby
such transferee agrees to be bound by this Deed, and to be treated as, and be
entitled to the benefits of, and subject to the obligations and restrictions
applicable to, TW and a TW Investor for all purposes of this
Deed. The Company shall be entitled to refuse to (i) register any
Transfer of any Subject Shares if the relevant recipient has not executed such a
joinder to this Deed and (ii) recognize any vote not in accordance with the
terms of this Deed.
2
2. Irrevocable Appointment of
Representative. Effective as of the Closing Date, as security
for their respective obligations hereunder, and subject to the provisions of
Section 5
herein, each TW Investor hereby irrevocably (to the fullest extent permitted by
Bermuda Law) constitutes and appoints (and will procure that each registered
holder from time to time of any of the Subject Shares will constitute and
appoint), except in connection with any action, vote or consent to be taken or
given in respect of the exclusions to the appointment described in Section 4 below (only
to the extent of such exclusion), the Voting Rights Holder’s designee (which
designee shall be a Person set forth on Schedule B hereto) as the true and
lawful corporate representative of each TW Investor (the “Representative”), to the
fullest extent of each such Person’s voting rights with respect to the Subject
Shares held by them, until such time as this Deed terminates in accordance with
its terms. It is acknowledged that the appointment of the
Representative under this Deed takes effect as a corporate representative
appointment for the purposes of the Bye-laws of the Company.
3. Power to Appoint
Proxy. Effective as of the Closing Date, and subject to Section 5 below, each
TW Investor hereby irrevocably authorizes the Voting Rights Holder to appoint
from time to time on its behalf any of the Persons set forth on Schedule B hereto as
its true and lawful proxy that shall be deemed to be coupled with a proprietary
interest of the Voting Rights Holder (the “Proxies”), to exercise the TW
Voting Rights, except in connection with any action, vote or consent to be taken
or given in respect of the exclusions to the appointment described in Section 4 below (only
to the extent of such exclusion). Such power shall continue until
such time as this Deed terminates in accordance with its terms. As
further security for their respective obligations hereunder each TW Investor
hereby constitutes and appoints (and will procure that each registered holder
from time to time of any of the relevant Subject Shares will constitute and
appoint) the Voting Rights Holder as its lawful attorney in fact with power to
appoint and execute proxies to vote on its behalf at any general meeting of the
Company in respect of any and all Subject Shares owned by it from time to time
and to sign any shareholder resolutions in lieu of a meeting and any other
consents or waivers in relation to any or all such Subject Shares and to sign
and give any required notices of the appointments under this Deed, except in
connection with any action, vote or consent to be taken or given in respect of
the exclusions to the appointment described in Section 4
below.
4. Exclusions to the
Appointments. The rights to vote 50% of the TW Class A Common
Shares and 50% of the TW Class B Common Shares (and 50% of all Equity Securities
owned by the TW Investors issued or issuable in exchange for or with respect to
or otherwise deriving from the TW Class A Common Shares and the TW Class B
Common Shares, respectively, whether (i) by way of dividend, split, subdivision,
conversion or consolidation of shares or (ii) in connection with a
reclassification, recapitalization, merger, consolidation, going private, tender
offer, amalgamation, change of control, other reorganization or similar
transaction) and any other Class A Common Shares acquired by a TW Investor after
the date hereof (collectively, the “TW Excluded Shares”) and the
appointment of the Representative and the Proxies related to the TW Excluded
Shares pursuant to this Deed shall not apply to any action, vote or consent to
be taken or given by any TW Investor in respect of any Change of Control
Transaction. For the avoidance of doubt, the Voting Rights Holder
shall have the sole right to vote, and the Proxies will apply to, with respect
to a Change of Control Transaction, any Class B Common Shares that were
Transferred to any TW Investor by any RSL Investor pursuant to the Investor
Rights Agreement. The rights to vote the Subject Shares and the
appointment of the Representative and the Proxies related to the Subject Shares
pursuant to this Deed shall not apply to any action, vote or consent to be taken
or given by any TW Investor in respect of any actions of the Company described
in Section
6.2(a) of the Investor Rights Agreement. The voting of the
Subject Shares pursuant to this Deed, shall be subject to the obligations of the
RSL Investors set forth in Section 6.1 of the Investor Rights
Agreement.
3
5. Provisions applying to the
Voting Rights Holder.
5.1 The
Voting Rights Holder shall at all times be a “Permitted
Holder.” For the purposes of this Deed, a “Permitted Holder”
means (a) RSL Savannah, (b) RSL and (c) any Person in the same Group as RSL for
so long as such Person remains in the same Group as RSL, provided that such
Person is also a “Permitted Holder” under each of the agreements set forth on
Schedule A
hereto (as such term is defined therein).
5.2 RSL
Savannah hereby warrants and represents to the other parties hereto that RSL
Savannah is, on the date hereof, a Permitted Holder.
5.3 RSL
Savannah hereby undertakes to procure that at all times the TW Voting Rights are
exercised by or on the instructions of a Permitted Holder.
5.4 Each
of RSL and the Voting Rights Holder shall jointly and severally indemnify and
hold harmless the TW Investors against any and all losses, liabilities, damages
and expenses (including all reasonable costs and expenses related thereto or
incurred in enforcing this Section 5.4) suffered
or sustained by the TW Investors arising from claims asserted by any Person with
respect to the exercise of the TW Voting Rights by the Voting Rights Holder;
provided, however, that under no circumstances shall RSL or the Voting Rights
Holder have any obligation to indemnify or hold harmless the TW Investors for
any losses, liabilities, damages or expenses arising from (x) any claims
asserted by the TW Investors or any of their Affiliates or (y) the exercise of
the TW Voting Rights by any Person (including the TW Investors) other than the
Voting Rights Holder; provided, further, that the provisions of clauses (x) and
(y) above shall not limit any right of the TW Investors to make a claim for a
breach of this Deed or otherwise enforce the terms of this Deed.
6. Representations and
Warranties. Each TW Investor hereby severally represents and
warrants to the Voting Rights Holder and the Company solely in respect of the
Subject Shares held by it as follows:
6.1 Ownership of Subject
Shares. The Voting Rights Holder has sole voting power and
sole power to issue instructions with respect to the Subject Shares except in
connection with any action, vote or consent to be taken or given in respect of
the exclusions to the appointment described in Section 4 (only to
the extent of such exclusion).
6.2 Power; Binding
Agreement. It has all requisite power and authority to enter
into and perform all of its obligations under this Deed. The
execution, delivery and performance of this Deed by it shall not violate any
agreement to which it is a party, including, without limitation, any voting
agreement, proxy arrangement, pledge agreement, shareholders agreement, voting
trust or trust agreement. This Deed has been duly and validly
executed and delivered by it and constitutes a legally valid and binding
obligation of it, enforceable against it in accordance with its
terms. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which it is a trustee whose
consent is required for the execution and delivery of this Deed or the
compliance by it with the terms hereof.
4
6.3 No Conflicts. Neither the execution
and delivery of this Deed by it, nor the compliance by it, with any of the
provisions hereof shall (a) conflict with or violate any agreement, Law, rule,
regulation, order, judgment or decision or other instrument binding upon it, or
any of its properties or assets, nor require any consent, notification,
regulatory filing or approval which has not been obtained, (b) result in any
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give to any third party a right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which it is a party or by which it or any of its properties or assets, as the
case may be, may be bound or affected, or (c) conflict with, or result in any
breach of, any organizational documents applicable to it.
7. Specific
Performance. Each TW Investor hereby severally acknowledges
and agrees that damages would be an inadequate remedy for any breach of the
provisions of this Deed and agrees that the obligations of a TW Investor shall
be specifically enforceable by (a) the Voting Rights Holder and (b) the Company,
and that the Voting Rights Holder and the Company shall each be entitled to seek
injunctive or other equitable relief upon a breach by a TW Investor without the
necessity or obligation to prove actual damages. This provision is
without prejudice to any other rights the Voting Rights Holder may have against
a TW Investor whether pursuant to this Deed, applicable Law or
otherwise.
8. Term.
8.1 Subject
to Section 8.2
hereof, this Deed (and the appointments and Proxies hereunder) shall terminate
and be of no further force and effect on the date that is the later of (a) [•], 2013 and (b) the date
that there are no longer any Class B Common Shares
outstanding. Notwithstanding the foregoing, but subject to Section 8.2 hereof,
at anytime after [•],
2013, TW may elect to terminate this Deed (and the appointments and Proxies
hereunder). Upon termination of this Deed, 50% of the TW Class B
Common Shares held by the TW Investors and their Affiliates thereof (and any
Class B Common Shares owned by any TW Investor issued or issuable in exchange
for or with respect to or otherwise deriving from such TW Class B Common Shares,
whether (i) by way of dividend, split, subdivision, conversion or consolidation
of shares or (ii) in connection with a reclassification, recapitalization,
amalgamation, merger, consolidation, going private, tender offer, change of
control, other reorganization or similar transaction)), including without
limitation all Class B Common Shares Transferred to any TW Investor or Affiliate
thereof by an RSL Investor or any Affiliate thereof, shall automatically and
without the need of any further action on the part of the holder of such Class B
Common Shares, convert to Class A Common Shares and the Company hereby agrees
that such event will be treated as an automatic election by such Person to
convert such Class B Common Shares into Class A Common Shares under Section 3(4)
of the Company’s Bye-laws and that, upon any such deemed election, the Company
shall amend its register of shares to reflect that conversion.
5
8.2 Notwithstanding
any other provision to the contrary, this Deed (and the appointments and Proxies
hereunder) shall not terminate prior to the date that is the latest maturity
date of the outstanding indebtedness of the Company as in effect as of the
Effective Date (or the earlier repayment thereof (without giving effect to any
extension thereof or amendment thereto)), as set forth on Schedule A hereto or,
if earlier, on such date that the ownership of the Subject Shares by the TW
Investors would not result in a default, a “Fundamental Change” or the making of
a “Change of Control Offer” as such terms are defined in the documents
evidencing the outstanding indebtedness of the Company as in effect as of the
Effective Date, as set forth on Schedule A hereto,
under such indebtedness.
9. Legend.
9.1 Subject
to Section 9.2,
the Parties acknowledge and agree that the Subject Shares shall bear a
restrictive legend in substantially the following form:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE RESTRICTIONS
CONTAINED IN AN IRREVOCABLE VOTING DEED AND CORPORATE REPRESENTATIVE
APPOINTMENT, DATED AS OF [•], 2009, BY AND AMONG THE
COMPANY, RSL SAVANNAH LLC, RONALD S. LAUDER AND TW MEDIA HOLDINGS LLC, AS
MODIFIED OR SUPPLEMENTED FROM TIME TO TIME (A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY).
9.2 The
legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of any such Subject Shares upon
the earlier of (i) the termination of this Deed in accordance with Section 8
hereof or (ii) such time as such shares (or the holder thereof) shall no longer
be subject to the terms of this Deed.
10. Miscellaneous.
10.1 Amendments. This
Deed may be amended, modified or supplemented only by a written instrument
executed by each of the parties hereto.
10.2 Notices. All
notices, consents, requests, instructions, approvals and other communications
provided for in this Deed shall be in writing and shall be deemed validly given
upon personal delivery or one day after being sent by overnight courier service
or on the date of transmission if sent by facsimile (so long as for notices or
other communications sent by facsimile, the transmitting facsimile machine
records electronic conformation of the due transmission of the notice), at the
following address or facsimile number, or at such other address or facsimile
number as a party may designate to the other parties:
6
(a) if
to RSL Savannah, to:
Ronald
S. Lauder
767
Fifth Avenue, Suite 4200
New
York, New York, 10153
Facsimile: (212)
572-4093
with
a copy to (which shall not constitute notice):
10.3 Successors and
Assigns. This Deed shall inure to the benefit of the parties,
and shall be binding upon the parties and their respective successors, permitted
assigns, heirs and legal representatives.
10.4 Third Party
Beneficiaries. The parties hereto agree that nothing herein
expressed or implied is intended to confer upon or give any rights or remedies
to any other person under or by reason of this Deed.
10.5 Descriptive
Headings. The headings of the articles, sections and
subsections of this Deed are inserted for convenience of reference only and
shall not be deemed to constitute a part hereof or affect the interpretation
hereof.
10.6 Applicable
Law. THIS DEED SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS AND RELATIONSHIP HEREUNDER OF THE PARTIES SHALL BE GOVERNED
BY, THE LAWS OF BERMUDA WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF
LAWS.
10.7 Counterparts. This
Deed may be executed in any number of counterparts, each of which shall be
deemed an original, but all such counterparts shall together constitute one and
the same instrument. This Deed, once executed by a party, may be
delivered to the other parties hereto by facsimile or electronic transmission of
a copy of this Deed bearing the signature of the party so delivering this
Deed.
10.8 Entire
Agreement. This Deed, together with the Investor Rights
Agreement, the TW Subscription Agreement, the Registration Rights Agreement and
that certain letter agreement by and between Ronald S. Lauder and TW dated
as of March 22, 2009, contain the entire agreement of the parties with respect
to the subject matter hereof and supersede all other prior agreements,
understandings, statements, representations and warranties, oral or written,
express or implied, between the parties and their respective affiliates,
representatives and agents in respect of such subject matter.
10.9 SUBMISSION TO
JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS DEED SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK
LOCATED IN NEW YORK COUNTY, NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK (EACH, A “NEW YORK COURT”), AND, BY EXECUTION AND
DELIVERY OF THIS DEED, EACH PARTY HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF. EACH PARTY
HERETO HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF TO SUCH PARTY BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN
RECEIPT REQUESTED, TO SUCH PARTY AT ITS ADDRESS SPECIFIED IN SECTION
10.2. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY, AND
EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
8
10.10 Severability. Every
term and provision of this Deed is intended to be severable. If any
term or provision hereof is illegal or invalid for any reason whatsoever, such
term or provision will be enforced to the maximum extent permitted by Law and,
in any event, such illegality or invalidity shall not affect the validity of the
remainder of this Deed. For the avoidance of doubt, in the event that
an appointment in the capacity as a proxy or a corporate representative, as the
case may be, is deemed unlawful or invalid, the parties hereto agree that the
appointment shall be deemed to be in the capacity that was not deemed unlawful
or invalid, and any and all actions previously taken, or taken thereafter, shall
be deemed to have been taken, and will be taken, in such other
capacity.
10.11 Further
Assurances. In connection with this Deed and the transactions
contemplated hereby, each party shall execute and deliver any additional
documents and instruments and perform any additional acts that may be necessary,
helpful or appropriate to effectuate and perform the provisions of this Deed and
such transactions.
9
IN
WITNESS WHEREOF, the parties have caused this Deed to be executed and delivered
by their respective officers hereunto duly authorized as of the date first above
written.
RSL
SAVANNAH LLC
By:
Name:
Ronald S. Lauder
Title:
Sole Member
Ronald
S. Lauder (for purposes of Section 5.4
only)
Signature
Page to Irrevocable Voting Deed and Corporate Representative
Appointment
TW
MEDIA HOLDINGS LLC
By:
Name:
Title:
Signature
Page to Irrevocable Voting Deed and Corporate Representative
Appointment
CENTRAL
EUROPEAN MEDIA ENTERPRISES LTD.
By:
Name:
Title:
Signature
Page to Irrevocable Voting Deed and Corporate Representative
Appointment
EXHIBIT
A
This
JOINDER AGREEMENT (this “Joinder”) to that certain Irrevocable Voting Deed and
Corporate Representative Appointment, dated as of [•], 2009 (the “Deed”), by and among (1) RSL
Savannah LLC, a Delaware limited liability company (“RSL Savannah”) (RSL Savannah
together with all RSL Permitted Transferees (including Ronald S. Lauder (“RSL”)) and their respective
successors, permitted assigns, heirs and legal representatives are herein
referred to as the “RSL
Investors”), (2) TW Media Holdings LLC, a Delaware limited liability
company (“TW”) (TW
together with all TW Permitted Transferees and their respective successors,
permitted assigns, heirs and legal representatives are herein referred to as the
“TW Investors”) and (3)
Central European Media Enterprises Ltd., a Bermuda company (the “Company”), and any parties to
the Deed who agree to be bound by the terms of the Deed, is made and entered
into as of [•] by [•] (“Holder”). Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to
them in the Deed.
WHEREAS,
Holder has acquired certain Subject Shares, and as a condition to acquiring such
Subject Shares, the Deed requires Holder, as a holder of Subject Shares, to
become a party to the Deed, and Holder agrees to do so in accordance with the
terms hereof.
NOW,
THEREFORE, in consideration of the foregoing, and the mutual agreements set
forth herein and other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, Holder, intending to be legally bound, hereby
agrees as follows:
Agreement to be
Bound. Holder hereby agrees that upon execution of this
Joinder, Holder shall become a party to the Deed and shall be fully bound by,
and subject to, all of the covenants, terms and conditions of the Deed
applicable to a holder of Subject Shares, as if Holder had signed the Deed and
been an original party thereto.
Representations and
Warranties. Holder hereby represents and warrants as follows:
(i) Holder has all requisite power and authority to enter into this Joinder and
to carry out his, her or its obligations hereunder; (ii) this Joinder has been
duly executed by Holder, and constitutes a valid and binding obligation
enforceable against Holder in accordance with its terms; and (iii) Holder has
received a copy of the Deed and any and all other information and materials that
Holder deems reasonably necessary or appropriate to enable Holder to make an
informed decision concerning the transactions contemplated by the
Deed.
Applicable
Law. THIS JOINDER SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
BERMUDA WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAWS.
**********************************
IN
WITNESS WHEREOF, Holder has caused this Joinder to be executed and delivered
by its officer hereunto duly authorized as of the date first above
written.
This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made
as of [•], 2009, by and between Central European Media Enterprises Ltd., a
Bermuda company (the “Company”) and TW
Media Holdings LLC, a Delaware limited liability company (“TW”). Certain
capitalized terms used in this Agreement are defined in Section 2
hereof.
1. Recitals.
1.1 WHEREAS,
the Company and TW are parties to that certain subscription agreement, dated as
of March 22, 2009 (the “TW Subscription
Agreement”), pursuant to which the Company issued to TW (a) fourteen
million five hundred thousand (14,500,000) newly issued Class A Common Shares
(the “TW Class A
Common Shares”) and (b) four million five hundred thousand (4,500,000)
newly issued Class B Common Shares (the “TW Class B Common
Shares” and, together with the TW Class A Common Shares, the “TW Common Shares”) in
exchange for cash in the aggregate amount of US$241,500,000, on the terms and
conditions set forth in the TW Subscription Agreement;
1.2 WHEREAS,
the Class B Common Shares are convertible into Class A Common
Shares;
1.3 WHEREAS,
each of Ronald S. Lauder, RSL Savannah LLC (“RSL Savannah”), TW
and the Company is a party to that certain Irrevocable Voting Deed and Corporate
Representative Appointment, dated as of the date hereof (the “TW Voting
Agreement”); and
1.4 WHEREAS,
the Company and TW desire to enter into this Agreement to provide for certain
matters with respect to the registration of (a) the TW Class A Common Shares,
(b) the Class A Common Shares into which the TW Class B Common Shares are
convertible ((a) and (b) collectively, the “Shares”) and certain
other Class A Common Shares acquired by TW and its Affiliates after the date
hereof.
NOW,
THEREFORE, in consideration of the foregoing, and the mutual agreements set
forth herein and other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
2. Definitions.
As used
herein, unless the context otherwise requires, the following terms have the
following respective meanings:
“Affiliate”: of any
Person, means any other Person that, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first Person. As used in this definition, the term “control,”
including the correlative terms “controlling,”“controlled by” and “under common
control with,” means the possession, directly or indirectly, of the power to
direct or cause the direction of management or policies (whether through
ownership of securities or any partnership or other ownership interest, by
contract or otherwise).
“Agreement”: As
defined in the preamble hereto.
“Class A Common
Shares”: means the shares of Class A Common Stock, par value $0.08 per
share, of the Company, having such rights associated with such Class A Common
Shares as set forth in the governing documents of the Company, including the
Company’s Bye-laws, and any Equity Securities issued or issuable in exchange for
or with respect to such Class A Common Shares (i) by way of dividend, split or
combination of shares or (ii) in connection with a reclassification,
recapitalization, merger, consolidation, going private, tender offer,
amalgamation, change of control, other reorganization or similar
transaction.
“Class B Common
Shares”: means the shares of Class B Common Stock, par value $0.08 per
share, of the Company, having such rights associated with such Class B Common
Shares as set forth in the governing documents of the Company, including the
Company’ s Bye-laws, and any Equity Securities issued or issuable in exchange
for or with respect to such Class B Common Shares (i) by way of dividend, split
or combination of shares or (ii) in connection with a reclassification,
recapitalization, merger, consolidation, going private, tender offer,
amalgamation, change of control, other reorganization or similar
transaction.
“Commission”: The
Securities and Exchange Commission or any other Federal agency at the time
administering the Securities Act.
“Company”: As
defined in the preamble of this Agreement.
“Equity Securities”:
means (i) shares or other equity interests (including the Class A Common Shares
and the Class B Common Shares) of the Company and (ii) options, warrants or
other securities that are directly or indirectly convertible into, or
exercisable or exchangeable for, shares or other equity interests of the
Company.
“Exchange
Act”: The Securities Exchange Act of 1934, or any similar
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time. Reference to a particular
Section of the Securities Exchange Act of 1934 shall include a reference to the
comparable Section, if any, of any such similar Federal statute.
“Initiating
Holders”: Any holder or holders of Registrable Securities
initiating a request pursuant to Section 3.1 for the
registration of all or part of such holder’s or holders’ Registrable Securities;
provided however, that to initiate a request for registration pursuant to Section 3.1(a), such
holder(s) must hold more than fifty percent (50%) of all the outstanding
Registrable Securities (as adjusted for splits, combination of shares,
reclassification, recapitalization or like changes in capitalization) (for
purposes of this calculation, the Class B Common Shares held by such holder that
are convertible into Registrable Securities shall be taken into
account). For the avoidance of doubt, an Initiating Holder shall only
be TW, any TW Permitted Transferee (as defined in the Investor Rights
Agreement), and any other transferees who, together with their Affiliates,
acquire at least 25% of the Shares (as adjusted for splits, combination of
shares, reclassification, recapitalization or like changes in capitalization)
(such transferees, “Other Permitted
Transferees”).
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“Investor Rights
Agreement”: As defined in Section 12 of this
Agreement.
“NASDAQ”: The
automated screen-based quotation system operated by the Nasdaq Stock Market,
Inc., a subsidiary of the National Association of Securities Dealers, Inc., or
any successor thereto.
“Other Permitted
Transferees”: As defined in the definition of “Initiating
Holders” above.
“Person”: Any
individual, corporation, partnership, limited liability company, association or
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
“Registrable
Securities”: Any (i) TW Class A Common Shares, (ii) any Class
A Common Shares acquired by TW or one of its Affiliates pursuant to the right of
first offer in accordance with the Investor Rights Agreement, (iii) any Class A
Common Shares issued upon conversion of the TW Class B Common Shares, (iv) any
Class A Common Shares acquired by TW or one of its Affiliates after the date
hereof, so long as in the written opinion of counsel reasonably satisfactory to
the Company such shares when taken together with all other Registrable
Securities beneficially owned by TW and its Affiliates may not be transferred in
any three (3) month period without restriction or limitation pursuant to Rule
144 (without regard to permitted dispositions by non-affiliates of the Company)
and Registrable Securities defined in clauses (i), (ii), (iii) and (v) of this
definition of “Registrable Securities” are then outstanding and (v) any
securities issued or issuable with respect to any Class A Common Shares referred
to above by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise; provided that such Class A Common Shares or such
securities issued or issuable with respect to any Class A Common Shares are held
by either TW, TW Permitted Transferees (as defined in the Investor Rights
Agreement) or Other Permitted Transferees. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
when (a) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (b) they
shall have been distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, (c) they shall have been otherwise
transferred, new certificates for them not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent disposition of
them shall not require registration or qualification of them under the
Securities Act or any similar state law then in force, (d) in the written
opinion of counsel to the holder all Registrable Securities beneficially owned
by such holder of Registrable Securities may be transferred in any three (3)
month period without restriction or limitation pursuant to Rule 144 (without
regard to permitted dispositions by non-affiliates of the Company) or (e) they
shall have ceased to be outstanding. Notwithstanding anything herein
to the contrary, the holders of Registrable Securities shall include, and the
rights of holders of Registrable Securities pursuant to the terms of this
Agreement shall be attributable to, any Person who has the right exercisable in
its discretion to acquire Registrable Securities, whether pursuant to a
conversion of Class B Common Shares or otherwise, without any requirement that
such Person acquire (whether pursuant to such conversion, distribution or
otherwise) such Registrable Securities prior to an offering of such
securities.
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“Registration
Expenses”: All expenses incident to the Company’s performance
of or compliance with Section 3, including,
without limitation, all registration, filing and Financial Industry Regulatory
Authority fees, all stock exchange listing fees, all fees and expenses of
complying with securities or blue sky laws, all word processing, duplicating and
printing expenses, messenger and delivery expenses, the reasonable fees and
disbursements of counsel for the Company, one counsel for the selling
shareholders and of the Company’s independent public accountants, including the
expenses of any special audits or “cold comfort” letters required by or incident
to such performance and compliance, any fees and disbursements of underwriters
customarily paid by issuers of securities, but excluding underwriting discounts
and commissions and transfer or other taxes, if any.
“Rule
144”: As defined in Section 16(a) of this
Agreement.
“Securities
Act”: The Securities Act of 1933, as amended, or any similar
federal statute, and the rules and regulations of the Commission thereunder, all
as of the same shall be in effect at the time. References to a
particular Section of the Securities Act of 1933 shall include a reference to
the comparable Section, if any, of any such similar federal
statute.
“Shares”: As
defined in the recitals of this Agreement.
“Shelf
Registration”: As defined in Section 3.1(b) of
this Agreement.
“Shelf Registration
Statement”: As defined in Section 3.1(b) of
this Agreement.
“TW”: As
defined in the preamble of this Agreement.
“TW Class A Common
Shares”: As defined in the recitals of this
Agreement.
“TW Class B Common
Shares”: As defined in the recitals of this
Agreement.
“TW Common
Shares”: As defined in the recitals of this
Agreement.
“TW Subscription
Agreement”: As defined in the recitals of this
Agreement.
“TW Voting
Agreement”: As defined in the recitals of this
Agreement.
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3. Registration under
Securities Act, etc.
3.1 Registration on
Request.
(a) Request. At
any time, upon the written request of one or more Initiating Holders requesting
that the Company effect the registration under the Securities Act of all or part
of such Initiating Holders’ Registrable Securities and specifying the intended
method of disposition thereof, the Company will promptly give written notice of
such requested registration to all registered holders of Registrable Securities,
and thereupon the Company will, subject to the terms of this Agreement, use
commercially reasonable efforts to effect the registration under the Securities
Act of the Registrable Securities which the Company has been so requested to
register by such Initiating Holders for disposition (not to exceed, in the case
of an underwritten offering, the number of Registrable Securities that the
managing underwriter shall advise the Company in writing (with a copy to each
holder of Registrable Securities requesting registration) may be distributed, in
its belief, without interfering with the successful marketing of such securities
(such writing to state the basis of such belief)) in accordance with the
intended method of disposition stated in such request to the extent necessary to
permit the disposition (in accordance with the intended methods thereof as
aforesaid) of the Registrable Securities so to be
registered. Notwithstanding the foregoing, the Company shall not be
required to effect more than two registrations pursuant to this Section 3.1(a) in any
period of twelve consecutive calendar months. The Company shall be
entitled to elect to register securities for its own account in connection with
the offering of Registrable Securities pursuant to this Section 3.1(a),
subject to (i) the managing underwriter of such offering advising the Initiating
Holder in writing that, in its opinion, the inclusion of such securities on
behalf of the Company will not result in a number of securities being offered
which exceeds the number of securities which the managing underwriter believes
could be sold in the offering and (ii) the inclusion of such securities on
behalf of the Company not entitling any other Person to include securities in
such offering.
(b) Shelf
Registration. So long as the Company is eligible to register
securities on Form S-3 under the Securities Act (or any successor or similar
form then in effect), the Company shall, at the request of the Initiating
Holders, use its commercially reasonable efforts to promptly file and cause to
be effective, if available, a registration statement on Form S-3 (a “Shelf Registration
Statement”) for an offering of Registrable Securities to be made on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act (a
“Shelf
Registration”) and shall use its commercially reasonable efforts to keep
the Shelf Registration Statement effective and usable for the resale of
Registrable Securities until the date on which all Registrable Securities so
registered have been sold pursuant to the Shelf Registration Statement or until
such securities cease to be Registrable Securities.
(c) Offering
Requirements. The Company shall not be required to effect any
registration of Registrable Securities pursuant to Section 3.1(a) or
Section 3.1(b)
unless the anticipated aggregate public offering price (before any underwriting
discounts and commissions) of the Registrable Securities requested to be
registered by the Initiating Holders is equal to or greater than $25 million;
provided that, in the case of
an underwritten offering, the Company shall not be required to effect any such
registration unless the anticipated aggregate public offering price (before any
underwriting discounts and commissions) of the Registrable Securities requested
to be registered by the Initiating Holders is equal to or greater than $100
million. Notwithstanding the foregoing, the Company shall not be
obligated to effect any such registration if within 20 days of receipt of a
written request from any Initiating Holder or Initiating Holders pursuant to
this Section
3.1, the Company gives notice to such Initiating Holder or Initiating
Holders of the Company's intention to make a public offering within 45 days from
receipt of such written request from any Initiating Holder or Initiating Holders
(other than on Form S-4 or S-8 or any successor or similar forms); provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective and provided that the Company may
only delay an offering pursuant to this provision for a period of not more than
45 days, if a filing of any other registration statement is not made within that
period, and the Company may only exercise this right twice in any twelve
(12)-month period.
5
(d) Registration Statement
Form. Registrations under Section 3.1(a) shall
be on such appropriate registration form of the Commission (i) as shall be
selected by the Company and (ii) as shall permit the disposition of such
Registrable Securities in accordance with the intended method or methods of
disposition specified in their request for such registration.
(e) Expenses. The
Company shall pay any Registration Expenses (excluding underwriting discounts
and commissions and transfer or other taxes, if any) in connection with each
registration requested under this Section 3.1; provided that the
Company shall not be required to pay any Registration Expenses if the
registration request is subsequently withdrawn at the request of the holders of
a majority of the Registrable Securities to be registered (in which case all
selling shareholders shall bear such expenses pro rata based upon the number of
Registrable Securities that were to be included in the withdrawn
registration). Underwriting discounts and commissions and transfer or
other taxes (if any) in connection with each such registration shall be
allocated pro rata among all Persons on whose behalf securities of the Company
are included in such registration, on the basis of the respective amounts of the
securities then being registered on their behalf.
(f) Effective Registration
Statement. A registration requested pursuant to this Section 3.1 shall not
be deemed to have been effected (i) unless a registration statement with respect
thereto has become effective, provided that a
registration which does not become effective after the Company has filed a
registration statement with respect thereto solely by reason of the refusal to
proceed of the Initiating Holders shall be deemed to have been effected by the
Company at the request of such Initiating Holders, (ii) if, after it has become
effective, such registration becomes subject to, for longer than 60 days, any
stop order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason or (iii) the conditions to closing
specified in the purchase agreement or underwriting agreement entered into in
connection with such registration are not satisfied by reason of an act or
omission by the Company. If a Shelf Registration is requested, the
Company shall not be required to keep the registration statement effective
during any period or periods (up to a total of 90 days in any 12-month period)
if, based on the advice of counsel, the continued effectiveness of the
registration statement would require the Company to disclose a material
financing, acquisition, corporate development or other material information and
the Company shall have determined that such disclosure would be detrimental to
the Company; provided, further, that the
requirement to use commercially reasonable efforts to keep the registration
statement effective shall be extended one day for each day that the Company
allows the effectiveness of the registration statement to lapse in reliance on
the preceding proviso.
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(g) Selection of
Underwriters. If a registration pursuant to this Section 3.1 involves
an underwritten offering, one or more underwriters of internationally recognized
standing shall be selected by the Company as underwriters thereof, provided that if the
holders of a majority of the Registrable Securities reasonably object to the
qualifications of such underwriter or underwriters, the Company shall select one
or more underwriters in addition to the underwriter or underwriters to which
objection was so made.
3.2 Incidental
Registration.
(a) Right to Include Registrable
Securities. If the Company at any time proposes to register
any of its securities under the Securities Act (other than on Form S-4 or S-8 or
any successor or similar forms and other than pursuant to Section 3.1), whether
or not for sale for its own account, it will each such time give prompt written
notice to all holders of Registrable Securities of its intention to do so and of
such holders’ rights under this Section
3.2. Upon the written request of any such holder made within
10 business days after the receipt of any such notice (which request shall
specify the Registrable Securities intended to be disposed of by such holder and
the intended method of disposition thereof), the Company will, subject to the
terms of this Agreement, use its commercially reasonable efforts to effect the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by the holders thereof, to the extent
requisite to permit the disposition (in accordance with the intended methods
thereof as aforesaid) of the Registrable Securities so to be registered, by
inclusion of such Registrable Securities in the registration statement which
covers the securities which the Company proposes to register (whether or not for
sale for its own account), provided that if, at
any time after giving written notice of its intention to register any securities
and prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any reason
either not to register or to delay registration of such securities, the Company
may, at its election, give written notice of such determination to each holder
of Registrable Securities and, thereupon, (i) in the case of a determination not
to register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith), without prejudice,
however, to the rights of any holder or holders of Registrable Securities
entitled to do so to request that such registration be effected as a
registration under Section 3.1, and (ii)
in the case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the delay in
registering such other securities. No registration effected under
this Section
3.2 shall relieve the Company of its obligation to effect any
registration upon request under Section 3.1, nor
shall any such registration hereunder be deemed to have been effected pursuant
to Section
3.1. The Company will pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section
3.2. Underwriting discounts and commissions and transfer or
other taxes (if any) in connection with each such registration shall be
allocated pro
rata among all
Persons on whose behalf securities of the Company are included in such
registration, on the basis of the respective amounts of the securities then
being registered on their behalf.
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(b) Priority in Incidental
Registrations. If (i) a registration pursuant to this Section 3.2 involves
an underwritten offering of the securities so being registered, whether or not
for sale for the account of the Company, to be distributed (on a firm commitment
basis) by or through one or more underwriters of recognized standing under
underwriting terms appropriate for such a transaction and (ii) the managing
underwriter of such underwritten offering shall inform the Company and holders
of the Registrable Securities requesting such registration by letter of its
belief that the distribution of all or a specified number of such Registrable
Securities concurrently with the securities being distributed by such
underwriters would interfere with the successful marketing of the securities
being distributed by such underwriters (such writing to state the basis of such
belief and the approximate number of such Registrable Securities which may be
distributed without such effect), then the Company may, upon written notice to
all holders of such Registrable Securities and to holders of such other
securities so requested to be included, exclude from such underwritten offering
(if and to the extent stated by such managing underwriter to be necessary to
eliminate such effect) (i) first, the number of such Registrable Securities so
requested to be included in the registration pro rata among such
holders on the basis of the number of such securities requested to be included
by such holders and (ii) second, shares of such other securities so requested to
be included by the holders of such other securities, so that the resultant
aggregate number of such Registrable Securities and of such other shares of
securities so requested to be included which are included in such underwritten
offering shall be equal to the approximate number of shares stated in such
managing underwriter’s letter.
3.3 Registration
Procedures.
If and
whenever the Company is required to use its commercially reasonable
efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 3.1 and
3.2, the
Company shall, as expeditiously as possible:
(i) prepare
and (in the case of a registration pursuant to Section 3.1, such
filing to be made within 30 days after the initial request of one or more
Initiating Holders of Registrable Securities) file with the Commission the
requisite registration statement to effect such registration and thereafter use
its commercially reasonable efforts to cause such registration statement to
become and remain effective, provided, however, that the
Company may postpone the filing or effectiveness of any registration statement
otherwise required to be filed by the Company pursuant to this Agreement or
suspend the use of any such registration statement for a period of time, not to
exceed 90 days in any 12-month period, if, based on an opinion of counsel to the
Company, the Company determines that the filing or continued use of such
registration statement would require the Company to disclose a material
financing, acquisition or other corporate development and the Company shall have
determined that such disclosure would be detrimental to the Company; provided, further, that the
Company may discontinue any registration of its securities which are not
Registrable Securities (and, under the circumstances specified in Section 3.2(a), its
securities which are Registrable Securities) at any time prior to the effective
date of the registration statement relating thereto;
8
(ii) subject
to Section
3.1(f), prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement until the
earlier of (a) such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement or (b) such time as such
securities cease to be Registrable Securities;
(iii) furnish
or make available to each seller of Registrable Securities covered by such
registration statement such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus contained in
such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act, and
such other documents, as such seller may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Securities
owned by such seller; for the avoidance of doubt, the Company shall not be
obligated to print any prospectuses other than in a public underwritten
transaction;
(iv) use
its commercially reasonable efforts to register or qualify all Registrable
Securities and other securities covered by such registration statement under
such other securities laws or blue sky laws of such jurisdictions as any seller
thereof shall reasonably request, to keep such registrations or qualifications
in effect for so long as such registration statement remains in effect, and take
any other action which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the securities
owned by such seller, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subdivision
(iv) be obligated to be so qualified, to subject itself to taxation in any such
jurisdiction or to consent to general service of process in any such
jurisdiction;
(v) use
its commercially reasonable efforts to cause all Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Registrable
Securities;
(vi) if
an underwritten offering, enter into an underwriting agreement in customary and
usual form with the underwriter(s) of such offering;
(vii) notify
the holders of Registrable Securities and the managing underwriter or
underwriters, if any, promptly and confirm such advice in writing promptly
thereafter:
9
(A) when
the registration statement, the prospectus or any prospectus supplement related
thereto or post-effective amendment to the registration statement has been
filed, and, with respect to the registration statement or any post-effective
amendment thereto, when the same has become effective;
(B) of
any request by the Commission for amendments or supplements to the registration
statement or the prospectus or for additional information;
(C) of
the issuance by the Commission of any stop order suspending the effectiveness of
the registration statement or the initiation of any proceedings by any Person
for that purpose;
(D) if
at any time the representations and warranties of the Company made in an
underwriting agreement as contemplated by Section 3.4 below
cease to be true and correct; and
(E) of
the receipt by the Company of any notification with respect to the suspension of
the qualification of any Registrable Securities for sale under the securities or
blue sky laws of any jurisdiction or the initiation or threat of any proceeding
for such purpose;
(viii) notify
each seller of Registrable Securities covered by such registration statement, at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act, upon the Company’s discovery that, or upon 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 any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
under which they were made, and at the request of any such seller promptly
prepare and furnish to such seller and each underwriter, if any, a reasonable
number of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material fact or omit
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 under which
they were made;
(ix) use
its commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement;
(x)
make available for inspection by any seller of Registrable Securities, any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
seller or underwriter, all pertinent financial and other records, pertinent
organizational documents and properties of the Company, and cause the Company’s
officers, directors, employees and independent accountants to supply all
reasonably available information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement;
10
(xi) permit
one legal counsel to the sellers of Registrable Securities covered by such
registration statement (which counsel shall be chosen by such sellers) to review
and comment upon such registration statement filed pursuant to Section 3.1 and all
amendments and supplements thereto at least three (3) days prior to their filing
with the Commission, and not file any document in a form to which such legal
counsel to such sellers reasonably objects;
(xii) reasonably
cooperate with the sellers of Registrable Securities being offered to facilitate
the timely preparation and delivery of certificates (not bearing any restrictive
legend) representing the Registrable Securities to be offered pursuant to a
registration statement and enable such certificates to be in such denominations
or amounts, as the case may be, as such sellers may reasonably request and
registered on such names as such sellers may request;
(xiii) provide
each seller of Registrable Securities covered by such registration statement
with contact information for the Company's transfer agent and registrar for all
Registrable Securities registered pursuant to a registration statement hereunder
and a CUSIP number for all such Registrable Securities, in each case not later
than the effective date of such registration statement;
(xiv) in
connection with any underwritten offering of Registrable Securities, furnish, on
the date that such Registrable Securities are delivered to the underwriters for
sale, (1) an opinion, dated as of such date, of the counsel representing the
Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering and
reasonably satisfactory to the underwriters, addressed to the underwriters and
(2) a letter, dated as of such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering and reasonably satisfactory to the underwriters, addressed to
the underwriters;
(xv) cause
all Registrable Securities to be qualified for inclusion in or listed on the
Prague Stock Exchange, the NASDAQ or any domestic or foreign securities exchange
on which securities of the same class issued by the Company are then so
qualified or listed; and
(xvi)
take such other action that may be requested by a seller of Registrable
Securities that are customary and reasonably required in connection with the
sale of Registrable Securities.
The
Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company and the underwriter such
information regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request.
11
No holder
of Registrable Securities shall have any right to obtain or seek an injunction
restraining or otherwise delaying any registration pursuant to this Agreement as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section
3.
Each
holder of Registrable Securities agrees by acquisition of such Registrable
Securities that, upon receipt of any notice from the Company of the occurrence
of any event of the kind described in clauses (B) through (E) of subdivision
(vii) of this Section
3.3, such holder will forthwith discontinue such holder’s disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until such holder’s receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (vii) of this
Section 3.3
and, if so directed by the Company, will deliver to the Company (at the
Company’s reasonable expense) all copies, other than permanent file copies, then
in such holder’s possession of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice.
3.4 Underwritten
Offerings.
(a) Requested Underwritten
Offerings. If requested by the underwriters for any
underwritten offering by holders of Registrable Securities pursuant to a
registration requested under Section 3.1, the
Company will enter into an underwriting agreement with such underwriters as
provided in Section
3.3(vi). The holders of the Registrable Securities will
cooperate with the Company in the negotiation of the underwriting agreement and
will give consideration to the reasonable suggestions of the Company regarding
the form thereof. The holders of Registrable Securities to be
distributed by such underwriters shall be parties to such underwriting
agreement.
(b) Incidental Underwritten
Offerings. If the Company at any time proposes to register any
of its securities under the Securities Act as contemplated by Section 3.2 and such
securities are to be distributed by or through one or more underwriters, the
Company will, if requested by any holder of Registrable Securities as provided
in Section 3.2
and subject to the provisions of Section 3.2(b), use
its commercially reasonable efforts to arrange for such underwriters to include
all the Registrable Securities to be offered and sold by such holder among the
securities to be distributed by such underwriters. The holders of
Registrable Securities to be distributed by such underwriters shall be parties
to the underwriting agreement between the Company and the
underwriters.
(c) Holdback
Agreement. Each holder of Registrable Securities who
participates in a registration agrees by acquisition of such Registrable
Securities, if so required by the managing underwriter, not to sell, make any
short sale of, loan, grant any option for the purchase of, effect any public
sale or distribution of or otherwise dispose of any securities of the Company,
in violation of Regulation M under the Securities Act or during the 90 days (or
such longer time as reasonably requested by the managing underwriter up to 120
days) after any underwritten registration pursuant to Section 3.1 or 3.2 has become
effective, except as part of such underwritten registration, whether or not such
holder participates in such registration; provided that the
restrictions contained in this sentence shall not apply to the holders of
Registrable Securities in any registration following the closing date of the
offering if such holders and their Affiliates collectively beneficially own
(within the meaning of Rule 13d-3 under the Exchange Act) less than 5% of the
outstanding Equity Securities. Each holder of Registrable Securities
agrees that the Company may instruct its transfer agent to place stop transfer
notations in its records to enforce this Section
3.4(c).
12
(d) Participation in
Underwritten Offerings. No Person may participate in any
underwritten offering hereunder unless such Person (i) agrees to sell such
Person’s securities on the basis provided in any underwriting arrangements
approved, subject to the terms and conditions hereof, by the Company and the
holders of a majority of Registrable Securities to be included in such
underwritten offering and (ii) completes and executes all questionnaires,
indemnities, underwriting agreements and other documents (other than powers of
attorney) required under the terms of such underwriting
arrangements.
3.5 Indemnification.
(a) Indemnification by the
Company. In the event of any registration of any securities of
the Company under the Securities Act, the Company will, and hereby agrees to,
indemnify and hold harmless the holder of any Registrable Securities covered by
such registration statement, its directors and officers, each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls such holder or any such underwriter
within the meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such holder or any such director or
officer or underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto (including any related issuer
free-writing prospectus) or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or any violation by the Company of the Securities Act or
the Exchange Act applicable to the Company in connection with such registration,
and the Company will reimburse such holder and each such director, officer,
underwriter and controlling person for any legal or any other out-of-pocket
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding, provided that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement (including any issuer free-writing prospectus) in reliance upon and
in conformity with written information furnished to the Company through an
instrument duly executed by such holder specifically stating that it is for use
in the preparation thereof (the foregoing shall not limit the obligations of the
Company to any other holder that did not provide such written information), and
provided, further, that the
Company shall not be liable to any Person who participates as an underwriter in
the offering or sale of Registrable Securities or to any other Person, if any,
who controls such underwriter within the meaning of the Securities Act, in any
such case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises out of such Person’s failure
to send or give a copy of the final prospectus, as the same may be then
supplemented or amended, within the time required by the Securities Act to the
Person asserting the existence of an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such holder or any such director, officer, underwriter
or controlling person and shall survive the transfer of such securities by such
holder.
13
(b) Indemnification by the
Sellers. The Company may require, as a condition to including
any Registrable Securities in any registration statement filed pursuant to Section 3.2, that the
Company shall have received an undertaking satisfactory to it from the
prospective seller of such Registrable Securities, to indemnify and hold
harmless (in the same manner and to the same extent as set forth in subdivision
(a) of this Section
3.5) the Company, each director of the Company, each officer of the
Company, each other person, if any, who controls the Company within the meaning
of the Securities Act, each other selling shareholder in the offering, each
Person who controls such other selling shareholder, each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls such holder or any such underwriter
within the meaning of the Securities Act, with respect to any statement or
alleged statement in or omission or alleged omission from such registration
statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto (including any related
issuer free-writing prospectus) if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company through an instrument duly executed
by such seller specifically stating that it is for use in the preparation of
such registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement (or any related issuer free-writing
prospectus). Any such indemnity shall remain in full force and
effect, regardless of any investigation made by or on behalf of the Company or
any such director, officer or controlling person and shall survive the transfer
of such securities by such seller. Notwithstanding the foregoing, the
indemnity obligation of each seller of Registrable Securities pursuant to this
Section 3.5(b)
shall be limited to an amount equal to the total proceeds (before deducting
underwriting discounts and commissions and expenses) received by such seller for
the sale of shares by such seller in a registration hereunder.
(c) Notices of Claims,
etc. Promptly after receipt by an indemnified party of notice
of the commencement of any action or proceeding involving a claim referred to in
the preceding subdivisions of this Section 3.5, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action, provided that the
failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under the preceding
subdivisions of this Section 3.5, except
to the extent that the indemnifying party is actually materially prejudiced by
such failure to give notice. In case any such action is brought
against an indemnified party, unless in such indemnified party’s reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, the indemnifying party shall be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified, to the extent that the indemnifying
party may wish, with counsel reasonably satisfactory to such indemnified party,
and after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall,
without the consent of the indemnified party, consent to entry of any judgment
or enter into any settlement of any such action which is not solely a monetary
settlement (which will be paid entirely by the indemnifying party) and does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability, or a covenant not to
sue, in respect to such claim or litigation. No indemnified party
shall consent to entry of any judgment or enter into any settlement of any such
action the defense of which has been assumed by an indemnifying party without
the consent of such indemnifying party.
14
(d) Other
Indemnification. Indemnification similar to that specified in
the preceding subdivisions of this Section 3.5 (with
appropriate modifications) shall be given by the Company and each seller of
Registrable Securities with respect to any required registration or other
qualification of securities under any Federal or state law or regulation of any
governmental authority, other than the Securities Act.
(e)
Indemnification
Payments. The indemnification of out-of-pocket expenses
required by this Section 3.5 shall be
made by periodic payments during the course of the investigation or defense, as
and when bills are received or expense is incurred.
(f)
Contribution. If
the indemnification provided for in the preceding subdivisions of this Section 3.5 is
unavailable to an indemnified party in respect of any expense, loss, claim,
damage or liability referred to therein, then each indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such expense, loss, claim,
damage or liability (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the holder or
underwriter, as the case may be, on the other from the distribution of the
Registrable Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the holder or underwriter,
as the case may be, on the other in connection with the statements or omissions
which resulted in such expense, loss, damage or liability, as well as any other
relevant equitable considerations. The relative fault of the Company
on the one hand and of the holder or underwriter, as the case may be, on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission to state a
material fact relates to information supplied by the Company, by the holder or
by the underwriter and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
provided that
the foregoing contribution agreement shall not inure to the benefit of any
indemnified party if indemnification would be unavailable to such indemnified
party by reason of the provisions contained in the first sentence of subdivision
(a) of this Section
3.5, and in no event shall the obligation of any indemnifying party to
contribute under this subdivision (f) exceed the amount that such indemnifying
party would have been obligated to pay by way of indemnification if the
indemnification provided for under subdivisions (a) or (b) of this Section 3.5 had been
available under the circumstances.
15
The
Company and the holders of Registrable Securities agree that it would not be
just and equitable if contribution pursuant to this subdivision (f) were
determined by pro rata allocation (even if the holders and any underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth in the preceding sentence and subdivision
(c) of this Section
3.5, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim.
Notwithstanding
the provisions of this subdivision (f), no holder of Registrable Securities or
underwriter shall be required to contribute any amount in excess of the amount
by which (i) in the case of any such holder, the total proceeds (before
deducting underwriting discounts and commissions and expenses) received by such
holder from the sale of Registrable Securities or (ii) in the case of an
underwriter, the total price at which the Registrable Securities purchased by it
and distributed to the public were offered to the public exceeds, in any such
case, the amount of any damages that such holder or underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
4.
Securities Law
Restrictions. To the extent required by the TW Subscription
Agreement, the parties hereto acknowledge and agree that the Shares (and any
Class A Common Shares issued upon conversion of the Class B Common Shares
included therein) shall bear restrictive legends substantially in the forms set
forth in the TW Subscription Agreement.
5.
Amendments and
Waivers. This Agreement may be amended and the Company may
take any action herein prohibited, or omit to perform any act herein required to
be performed by it, only if the Company shall have obtained the prior written
consent to such amendment, action or omission to act, of the holder or holders
of a majority of Shares (as adjusted for splits, combination of shares,
reclassification, recapitalization or like changes in capitalization and whether
such Shares are in the form of Class A Common Shares or Class B Common
Shares). Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any consent authorized by this Section 5, whether or
not such Registrable Securities shall have been marked to indicate such
consent.
6.
Notices. Except
as otherwise provided in this Agreement, all notices, requests and other
communications to any Person provided for hereunder shall be in writing and
shall be given to such Person (a) in the case of TW, c/o Time Warner Inc., One
Time Warner Center, New York, NY10019, (i) facsimile: +1 212 484 7167 to the
attention of its General Counsel and (ii) facsimile: +1 212 484 7299 to the
attention of the Senior Vice President – Mergers & Acquisitions, or at such
other address or facsimile number, or to the attention of such other officer, as
TW shall have furnished to the Company, (b) in the case of any other holder of
Registrable Securities, at the address or facsimile number that such holder
shall have furnished to the Company in writing, or, until any such other holder
so furnishes to the Company an address or facsimile number, then to and at the
address or facsimile of the last holder of such Registrable Securities who has
furnished an address or facsimile number to the Company, or (c) in the case of
the Company, c/o CME Development Corporation, 81 Aldwych, London WC2B 4HN,
United Kingdom, facsimile: +44 20 7430 5403 to the attention of its General
Counsel, or at such other address or facsimile number, or to the attention of
such other officer, as the Company shall have furnished to each holder of
Registrable Securities at the time outstanding. Each such notice,
request or other communication shall be effective upon personal delivery or one
day after being sent by overnight courier service or on the date of transmission
if sent by facsimile (so long as for notices or other communications sent by
facsimile, the transmitting facsimile machine records electronic conformation of
the due transmission of the notice) provided that any
such notice, request or communication to any holder of Registrable Securities
shall not be effective until received.
16
7.
Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, the provisions of this Agreement
which are for the benefit of the parties hereto other than the Company shall
also be for the benefit of and enforceable by any subsequent holder of any
Registrable Securities who has agreed in a written instrument to be delivered to
the Company to be bound by and subject to the terms and conditions of this
Agreement, subject to the provisions respecting the minimum numbers or
percentages of shares of Registrable Securities required in order to be entitled
to certain rights, or take certain actions, contained herein.
8.
No Third Party
Beneficiaries. This Agreement shall not confer any rights or
remedies upon any Person other than the parties hereto and their respective
successors and permitted assigns and, with respect to Section 3.5, the
other Persons referred to as indemnified parties therein.
9.
Descriptive
Headings. The headings of the articles, sections and
subsections of this Agreement are inserted for convenience of reference only and
shall not be deemed to constitute a part hereof or affect the interpretation
hereof.
10. Applicable
Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE
LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS
OF LAWS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
11.
Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all such counterparts shall together constitute one and
the same instrument. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile or electronic transmission of
a copy of this Agreement bearing the signature of the party so delivering this
Agreement.
12.
Entire
Agreement. This Agreement, together with the TW Subscription
Agreement, the Investor Rights Agreement, dated as the date hereof, by and among
the Company, TW, Ronald S. Lauder, RSL Investment LLC, RSL Investments
Corporation and RSL Savannah (the “Investor Rights
Agreement”), the TW Voting Agreement and that certain letter agreement by
and between Ronald S. Lauder and TW, dated as of March 22, 2009, contain the
entire agreement of the parties with respect to the subject matter hereof and
supersede all other prior agreements, understandings, statements,
representations and warranties, oral or written, express or implied, between the
parties and their respective Affiliates, representatives and agents in respect
of such subject matter.
17
13. SUBMISSION TO
JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW
YORK LOCATED IN NEW YORK, NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH PARTY HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
APPELLATE COURTS FROM ANY THEREOF. EACH PARTY HERETO HEREBY
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF TO SUCH
PARTY BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT
REQUESTED, TO SUCH PARTY AT ITS ADDRESS SPECIFIED IN SECTION
6. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY,
AND EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
14. Severability. Every
term and provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever,
such term or provision will be enforced to the maximum extent permitted by law
and, in any event, such illegality or invalidity shall not affect the validity
of the remainder of this Agreement.
15. Specific
Performance. The Parties agree that irreparable damage would
occur in the event that any of the provisions this Agreement were not performed
in accordance with their specific terms of were otherwise
breached. It is accordingly agreed that the Parties shall be entitled
to, in addition to the other remedies provided herein, specific performance of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any New York Court in addition to the other remedies to which such
Parties are entitled.
16. Reporting Status and Public
Information. With a view to making available the benefits of
certain rules and regulations of the SEC with respect to the use of Form S-3 and
the sale of restricted and control securities to the public without
registration, the Company agrees, so long as any of TW, a TW Permitted
Transferee (as defined in the Investor Rights Agreement) or an Other Permitted
Transferee owns any Shares or Registrable Securities, to:
(a) make
and keep public information available as those terms are understood and defined
in Rule 144 under the Securities Act (“Rule 144”), at all
times;
18
(b) use
its commercially reasonable best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish
to such holder upon request, a written statement as to its compliance with the
reporting requirements of Rule 144.
17. TW Voting
Agreement. In the event of any inconsistency or conflict
between this Agreement and the TW Voting Agreement with respect to the voting of
the TW Common Shares, each party hereto agrees that the TW Voting Agreement
shall prevail to the extent of such inconsistency or conflict.
18. Duration of
Agreement. This Agreement shall terminate and become void and
of no further force and effect upon the earlier to occur of (i) the mutual
agreement of the Parties and (ii) the date on which TW, TW Permitted Transferees
(as defined in the Investor Rights Agreement) and Other Permitted Transferees
cease to own any Registrable Securities; provided that Sections 3.5 and
4 through 18 shall survive any
termination of this Agreement.
[SIGNATURE
PAGE FOLLOWS]
19
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered by their respective officers hereunto duly authorized as of the date
first above written.
This
INVESTOR RIGHTS AGREEMENT (this “Agreement”) is made
as of [•], 2009, by and
among Central European Media Enterprises Ltd., a Bermuda company (the “Company”), Ronald S.
Lauder, RSL Savannah LLC, a Delaware limited liability company (“RSL Savannah”), RSL
Investment LLC, a Delaware limited liability company (“RSL CME GP”), RSL
Investments Corporation, a Delaware corporation (“RSL CME LP” and,
together with Ronald S. Lauder, RSL Savannah, RSL CME GP and the RSL Permitted
Transferees (as defined herein), the “RSL Investors”), TW
Media Holdings LLC, a Delaware limited liability company (“TW” and, together
with the TW Permitted Transferees (as defined herein), the “TW Investors”), and
any other subsequent parties to this Agreement upon such Party’s execution of a
joinder to this Agreement in the form annexed hereto as Exhibit
A. The Company, the RSL Investors and the TW Investors,
together with any subsequent parties hereto, are sometimes referred to herein
individually by name or as a “Party” and
collectively as the “Parties”, and the RSL
Investors and the TW Investors, together with any subsequent parties hereto, are
sometimes referred to herein as an “Investor” and
collectively as the “Investors”. The
meanings of certain capitalized terms used herein are set forth in Section 2
hereof.
1. Recitals.
1.1. WHEREAS,
the Company and TW are parties to that certain Subscription Agreement, dated as
of March 22, 2009 (the “TW Subscription
Agreement”), pursuant to which the Company issued to TW four million five
hundred thousand (4,500,000) Class B Common Shares and fourteen million five
hundred thousand (14,500,000) Class A Common Shares (collectively, the “TW Shares”) in exchange
for an aggregate of US$241,500,000, on the terms and conditions set forth in the
TW Subscription Agreement;
1.2. WHEREAS,
as of the date hereof, Ronald S. Lauder is the beneficial owner of 2,961,205
Class B Common Shares (excluding the RSL Excluded Shares) through his direct or
indirect control of CME Holdco;
1.3. WHEREAS,
each of RSL Savannah, Ronald S. Lauder, TW and the Company is a party to that
certain Irrevocable Voting Deed and Corporate Representative Appointment, dated
as of the date hereof (the “TW Voting
Agreement”); and
1.4. WHEREAS,
the Parties desire to enter into this Agreement to provide for certain matters
with respect to the issuance, ownership, voting and transfer of the Class A
Common Shares and the Class B Common Shares (and any direct and indirect
interest therein) held by them.
NOW,
THEREFORE, in consideration of the foregoing, and the mutual agreements set
forth herein and other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the Parties hereto, intending to be legally
bound, hereby agree as follows:
2. Defined
Terms. As used herein, the following terms have the meanings
set forth below:
“Affiliate” of any
Person, means any other Person that, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first Person. As used in this definition, the term “control,”
including the correlative terms “controlling,”“controlled by” and “under common
control with,” means the possession, directly or indirectly, of the power to
direct or cause the direction of management or policies (whether through
ownership of securities or any partnership or other ownership interest, by
contract or otherwise); provided, however that (a) none
of the Company or its subsidiaries shall be deemed to be an “Affiliate” of any
Investor, (b) CME Holdco shall not be deemed an “Affiliate” of any TW Investor
and (c) none of the RSL Excluded Persons shall be deemed to be an “Affiliate” of
any RSL Investor for any purpose hereunder.
“Agreement” has the
meaning set forth in the preamble.
“Amended Tag-Along
Notice” has the meaning set forth in Section
5.1.
“Annual Information
Statement” has the meaning set forth in Section
6.7.
“Board” has the
meaning set forth in Section
3.3(c).
“Change of Control
Transaction” means (i) any merger, consolidation, amalgamation, tender
offer, recapitalization, reorganization, scheme of arrangement or any other
transaction resulting in the shareholders of the Company immediately before such
transaction owning, directly or indirectly, less than a majority of the
aggregate voting power of the resultant entity or (ii) any sale of all or
substantially all of the assets of the Company, in each case, in one transaction
or in a series of related transactions.
“Class A Common
Shares” means the shares of Class A Common Stock, par value $0.08 per
share, of the Company, having such rights associated with such Class A Common
Shares as set forth in the governing documents of the Company, including the
Company’s Bye-laws, and any Equity Securities issued or issuable in exchange for
or with respect to such Class A Common Shares (i) by way of dividend, split,
subdivision, conversion or consolidation of shares or (ii) in connection with a
reclassification, recapitalization, merger, consolidation, going private, tender
offer, amalgamation, change of control, other reorganization or similar
transaction.
“Class B Common
Shares” means the shares of Class B Common Stock, par value $0.08 per
share, of the Company, having such rights associated with such Class B Common
Shares as set forth in the governing documents of the Company, including the
Company’s Bye-laws, and any Equity Securities issued or issuable in exchange for
or with respect to such Class B Common Shares (i) by way of dividend, split,
subdivision, conversion or consolidation of shares or (ii) in connection with a
reclassification, recapitalization, merger, consolidation, going private, tender
offer, amalgamation, change of control, other reorganization or similar
transaction. Notwithstanding the foregoing, for purposes of this
Agreement, the term “Class B Common Shares” shall never include the Class A
Common Shares into which they are convertible pursuant to the Company’s
Bye-laws.
2
“Closing Date” has the
meaning set forth in the TW Subscription Agreement.
“CME Holdco” means CME
Holdco, L.P., a Cayman Islands exempted limited partnership.
“Company” has the
meaning set forth in the preamble and includes any successor entity
thereto.
“Designated
Securities” has the meaning set forth in Section
7.3.
“Effective Date” has
the meaning set forth in the TW Subscription Agreement.
“Equity Securities”
means (i) shares or other equity interests (including the Class A Common Shares
and the Class B Common Shares) of the Company and (ii) options, warrants or
other securities that are directly or indirectly convertible into, or
exercisable or exchangeable for, shares or other equity interests of the
Company.
“Excluded Securities”
has the meaning set forth in Section
7.1.
“Fair Market Value”
has the meaning set forth in Section
10.14.
“Governmental
Approval” means, with respect to any Transfer of Equity Securities, any
consent, clearance or other action by, or filing with, any Governmental
Authority required in connection with such Transfer and the expiration or early
termination of any applicable statutory waiting period in connection with such
action or filing.
“Governmental
Authority” means any nation or government or multinational body, any
state, agency, commission, or other political subdivision thereof or any entity
(including a court) exercising executive, legislative, judicial or
administration functions of or pertaining to government, any stock exchange or
self regulatory entity supervising, organizing and supporting any stock
exchange.
“Group” means, with
respect to a Person, such Person and (i) such Person’s spouse, (ii) a lineal
descendant of such Person or such Person’s parents, the spouse of any such
descendant or a lineal descendant of any such spouse, (iii) The Ronald S. Lauder
Foundation, The Neue Galerie New York or a charitable institution controlled
(whether by funding or otherwise) by such Person and/or other members of such
Person’s Group, (iv) a trustee of a trust (whether inter vivos or testamentary),
all of the current beneficiaries and presumptive remaindermen of which are such
Person and/or one or more Persons described in clauses (i) through (iii) of this
definition, (v) a corporation, limited liability company, trust, cooperative or
partnership or any other entity of which all of the outstanding shares of
capital stock or interests therein are owned by such Person and/or Persons
described in clauses (i) through (iv) of this definition, (vi) an individual
covered by a qualified domestic relations order with such Person or any Person
described in clauses (i) or (ii) of this definition or (vii) a legal or personal
representative of such Person or any Person described in clause (i), (ii) or
(vi) in the event of any such Person’s death or disability. For
purposes of this definition, “presumptive remaindermen” refers to those Persons
entitled to a share of a trust’s assets if it were then to
terminate.
3
“Investor” and “Investors” have the
meanings set forth in the preamble.
“Involuntary Transfer”
means any Transfer (i) by seizure under levy of attachment or execution, (ii) in
connection with any voluntary or involuntary bankruptcy or other court
proceeding to a debtor in possession, trustee in bankruptcy or receiver or other
officer or agency, (iii) pursuant to any statute pertaining to escheat or
abandoned property, (iv) pursuant to a divorce or a separation agreement or a
final decree of a court in a divorce action, (v) to a legal representative of
any person occasioned by the incompetence of such person and (vi) to a Person
upon the death of an RSL Investor (who is a natural Person), by will (as in
effect on the Effective Date) or intestacy or pursuant to the laws governing
descent and distribution. Any transferee of Equity Securities
pursuant to an Involuntary Transfer shall remain bound by and subject to the
obligations and restrictions applicable to such Equity Securities to the fullest
extent permissible under applicable Law.
“Law(s)” means all
laws, statutes, ordinances, rules, regulations, judgments, injunctions, orders
and decrees.
“Negotiation Period”
has the meaning set forth in Section
3.3(c).
“New Stock” has the
meaning set forth in Section
6.3.
“New York Court” has
the meaning set forth in Section
10.10.
“Offer Notice” has the
meaning set forth in Section
4.1.
“Offered Shares” has
the meaning set forth in Section
4.1.
“Offering Investor”
has the meaning set forth in Section
4.1.
“Other Investor”
means, for purposes of Section 5 with
respect to any Selling Investor, all Investors other than such Selling
Investor.
“Party” and “Parties” have the
meanings set forth in the preamble.
“Permitted Transfer”
means Transfers among the RSL Investors or Transfers among the TW Investors, as
the case may be.
“Person” means any
individual, corporation, partnership, limited liability company, association or
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
“Potential Acquiror”
has the meaning set forth in Section
3.3(c).
“Proposed Securities”
has the meaning set forth in Section
7.1(a).
“QEF Election” has the
meaning set forth in Section
6.7.
“Registration Rights
Agreement” means that certain Registration Rights Agreement by and
between the Company and TW, dated as of the date hereof.
4
“ROFO Recipients” has
the meaning set forth in Section
4.1.
“RSL CME GP” has the
meaning set forth in the preamble.
“RSL CME LP” has the
meaning set forth in the preamble.
“RSL Excluded Persons”
means Adele Guernsey L.P, Leonard Lauder, LWG Family Partners, L.P., RAJ Family
Partners, L.P. and Richard Rich.
“RSL Excluded Shares”
means (i) the TW Shares, (ii) the 3,138,566 Class B Common Shares beneficially
owned by Adele Guernsey L.P., (iii) the 72,620 Class B Common Shares
beneficially owned by Leonard Lauder, (iv) the 110,717 Class B Common Shares
beneficially owned by LWG Family Partners, L.P., (v) the 29,999 Class A Common
Shares beneficially owned by Adele Guernsey L.P., (vi) the 30,000 Class A Common
Shares beneficially owned by LWG Family Partners, L.P., (vii) the 1 Class A
Common Share beneficially owned by Richard Rich and (viii) the 105,231 Class B
Common Shares beneficially owned by RAJ Family Partners, L.P.
“RSL Investors” has
the meaning set forth in the preamble.
“RSL Permitted
Transferee” means (A) any Person that (i) is in the same Group as Ronald
S. Lauder and (ii) is a transferee in connection with a Transfer pursuant to a
bona fide estate planning purpose or (B) any Person that is a transferee in
connection with an Involuntary Transfer; provided, that any
Class B Common Shares Transferred pursuant to clauses (i), (ii), (iii) and (iv)
of the definition of Involuntary Transfer shall first be converted to Class A
Common Shares. No Person shall be an RSL Permitted Transferee
pursuant to clause (A) until such transferee has executed and delivered to TW
and the Company (x) a joinder to this Agreement in the form annexed hereto as
Exhibit A
pursuant to which such transferee agrees to be bound by this Agreement, and to
be treated as, and be entitled to the benefits of, and subject to the
obligations and restrictions applicable to, the RSL Investors for all purposes
of this Agreement; and (y) a joinder to the TW Voting Agreement in the form
annexed to the TW Voting Agreement as Exhibit A pursuant to
which such transferee agrees to be bound by the TW Voting Agreement, and to be
treated as, and be entitled to the benefits of, and subject to the obligations
and restrictions applicable to, the RSL Investors for all purposes of the TW
Voting Agreement; and provided further that, in the
case of clause (A) above, any such Person remains in the same Group as Ronald S.
Lauder (and if such Person ceases to be in the same Group as Ronald S. Lauder,
an RSL Investor shall give notice promptly to TW and the Company of the change
in circumstances and such former Group member of Ronald S. Lauder shall
immediately and unconditionally Transfer any Equity Securities held by it back
to Ronald S. Lauder or an RSL Permitted Transferee). No Person shall
be an RSL Permitted Transferee pursuant to clause (B) above until such
Transferee has executed and delivered to TW and the Company a joinder as set
forth in clause (x) and clause (y) to the fullest extent permitted under
applicable Law. For the avoidance of doubt, any Person that is a
transferee pursuant to a Permitted Transfer from an RSL Investor shall be an RSL
Permitted Transferee.
“RSL Savannah” has the
meaning set forth in the preamble.
“Securities Act” means
the Securities Act of 1933.
5
“Selling Investor” has
the meaning set forth in Section
5.1.
“Standstill Period”
has the meaning set forth in Section
3.3(d).
“Tag-Along Notice” has
the meaning set forth in Section
5.1.
“Tag-Along Rights” has
the meaning set forth in Section
5.2.
“Tag-Along
Transaction” means the Transfer by any Investor of any Equity Securities
held by such Investor (in a Transfer permitted pursuant to Section 3 hereof),
whether in one transaction or in a series of related transactions. A
Tag-Along Transaction shall not include any Transfer (a) that constitutes a
Permitted Transfer, (b) effected in connection with the consummation of a Change
of Control Transaction, (c) that constitutes a TW Upstream Transfer, (d)
effected pursuant to Section 4 or (e) that
constitutes 1% or less in any single transaction (or 3% or less in the case of
all such Transfers in the aggregate) of the Equity Securities beneficially owned
by such Investor and its Affiliates in the aggregate, on the Closing
Date.
“Tag-Along Transferee”
has the meaning set forth in Section
5.2.
“Takeover Proposal”
has the meaning set forth in Section
3.3(c).
“Time Warner” means
Time Warner Inc., a Delaware corporation (including any successor entity
thereto).
“Transfer” means a
direct or indirect transfer in any form, including a sale, assignment,
conveyance, pledge, charge, mortgage, encumbrance, securitization, hypothecation
or other disposition, or any purported severance or alienation of any beneficial
interest (including the creation of any derivative or synthetic interest) or
“beneficial ownership” (as determined pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, as in effect on the date hereof), or the act of
so doing, as the context requires, other than any bona fide mortgage,
encumbrance, pledge or hypothecation of capital stock to a financial institution
in connection with any bona fide loan to an RSL Investor or a TW Investor from
such financial institution in which such financial institution does not have the
power to vote or dispose of such capital stock other than in the case of a
default caused by the actions or inactions of such Investor and provided that
such financial institution executes a joinder to this Agreement in the form
annexed hereto as Exhibit A; provided, that the
following shall not constitute a Transfer: (x) a transfer of voting power by a
TW Investor to the Voting Rights Holder (as defined in the TW Voting Agreement)
pursuant to the TW Voting Agreement and (y) any distribution of Equity
Securities of the Company by any RSL Investor or any of its Affiliates
(including CME Holdco and, for purposes of this clause (y), the RSL Excluded
Persons) to any shareholder, member or partner of such RSL Investor or such
Affiliate, pursuant to the terms of such RSL Investor’s or such Affiliate’s
governing documents.
“TW” has the meaning
set forth in the preamble.
“TW Investors” has the
meaning set forth in the preamble.
6
“TW Permitted
Transferee” means (i) any Person that is a direct or indirect wholly
owned subsidiary of Time Warner or (ii) any Person that is a transferee in
connection with clause (ii) of the definition of Involuntary Transfer; provided that any
Class B Common Shares Transferred pursuant to clause (ii) of the definition of
Involuntary Transfer shall first be converted to Class A Common
Shares. No Person shall be a TW Permitted Transferee hereunder
pursuant to clause (i) above until such Person has executed and delivered to the
Company (x) a joinder to this Agreement in the form annexed hereto as Exhibit A pursuant to
which such transferee agrees to be bound by this Agreement, and to be treated
as, and be entitled to the benefits of, and subject to the obligations and
restrictions applicable to, the TW Investors for all purposes of this Agreement
and (y) a joinder to the TW Voting Agreement in the form annexed to the TW
Voting Agreement as Exhibit A pursuant to
which such transferee agrees to be bound by the TW Voting Agreement, and to be
treated as, and be entitled to the benefits of, and subject to the obligations
and restrictions applicable to, the TW Investors for all purposes of the TW
Voting Agreement; and, provided further that, in the
case of clause (i) above, any such Person remains a direct or indirect wholly
owned subsidiary of Time Warner (and if such Person ceases to a direct or
indirect wholly owned subsidiary of Time Warner, TW shall give notice promptly
to RSL Savannah and the Company of the change in circumstances and such former
direct or indirect wholly owned subsidiary of Time Warner shall immediately and
unconditionally Transfer any Equity Securities held by it back to TW or a TW
Permitted Transferee). No Person shall be a TW Permitted Transferee
pursuant to clause (ii) above until such Transferee has executed and delivered
to the Company a joinder as set forth in clause (x) and clause (y) to the
fullest extent permitted under applicable Law.
“TW Shares” has the
meaning set forth in the recitals.
“TW Subscription
Agreement” has the meaning set forth in the recitals.
“TW Upstream Transfer”
means Transfers of the securities of Time Warner, including a Change of Control
Transaction (provided that, for
purposes of this definition, “the Company” in the definition of Change of
Control Transaction shall be replaced with “Time Warner”), and issuances of
securities of Time Warner by Time Warner.
“TW Voting Agreement”
has the meaning set forth in the recitals.
3. Transfer
Restrictions.
3.1.
Subject in all respects to compliance with Sections 3.2 and
3.3:
(a) On
or prior to the earliest of (i) [•], 2013, (ii) the date on
which the RSL Investors and their Affiliates in the aggregate have Transferred
more than 10% (measured as of the first day of such period) of the Equity
Securities beneficially owned by the RSL Investors and their Affiliates in the
aggregate in any given 365 day period and (iii) the date on which the RSL
Investors and their Affiliates in the aggregate have Transferred more than 30%
(measured as of the date hereof) of the Equity Securities beneficially owned by
the RSL Investors and their Affiliates in the aggregate, no TW Investor shall
Transfer any Equity Securities (which Equity Securities for purposes of this
clause shall not include any Class A Common Shares acquired by any TW Investor
after the date hereof from any Person other than any RSL Investors or any of
their respective Affiliates) at any time other than with respect to Transfers
(A) that constitute Permitted Transfers, (B) that are approved by each of RSL
Savannah, TW and the Company, it being understood that the Company’s consent
shall (x) not be unreasonably withheld and (y) be required only to the extent
such Transfer would cause a default under the outstanding indebtedness of the
Company as in effect on the Effective Date as set forth on Schedule A to the TW
Voting Agreement, (C) effected in connection with the consummation of a Change
of Control Transaction, (D) by any TW Investor in compliance with the terms and
conditions of Section
5 (Tag-Along Rights) pursuant to a Tag-Along Transaction initiated by an
RSL Investor or (E) that constitute TW Upstream Transfers; it being understood
that with respect to any Transfer by any TW Investor that is permitted pursuant
to this Section
3.1(a) (except with respect to Transfers pursuant to clauses (A) through
(E) hereof) prior to [•], 2013, such transferring
TW Investor must first comply with the terms and conditions of Section 4 (Right of
First Offer) and Section 5 (Tag-Along
Rights) hereof.
7
(b) Each
RSL Investor shall be permitted to freely Transfer any Equity Securities without
restriction, subject to compliance with the terms and conditions of Section 4 (Right of
First Offer) and Section 5 (Tag-Along
Rights) hereof; it being understood that with respect to Transfers (A) that
constitute Permitted Transfers, (B) that are approved by each of RSL Savannah,
TW and the Company, it being understood that the Company’s consent shall (x) not
be unreasonably withheld and (y) be required only to the extent such Transfer
would cause a default under the outstanding indebtedness of the Company as in
effect on the Effective Date as set forth on Schedule A to the TW
Voting Agreement or (C) that are effected in connection with the consummation of
a Change of Control Transaction, such RSL Investor shall not be required to
comply with the terms and conditions of Section 4 (Right of
First Offer) and Section 5 (Tag-Along
Rights) hereof.
(c) Any
transferee pursuant to any Permitted Transfer shall agree in writing with the
Parties to be bound by, to comply with all applicable provisions of, and to be
deemed to be an Investor for purposes of, this Agreement, and shall be made a
Party hereto by executing a joinder agreement in the form attached as Exhibit A
hereto. Any purported Transfer in violation of the provisions of this
Section 3 or
the Company’s Bye-laws shall be null and void and of no force and
effect. For the avoidance of doubt, each Investor hereby agrees and
acknowledges that the Company shall not be obligated to recognize or register
any Transfer that is in violation of this Agreement or the Company’s Bye-laws,
and the Company shall not be obligated to, at any meeting of the Company,
recognize the vote(s) applicable to any Equity Security that has been so
Transferred in violation of this Agreement or the Company’s
Bye-laws.
3.2. Conversion of
Shares.
(a) Each
TW Investor agrees and acknowledges that should such TW Investor seek to
Transfer any Class B Common Shares (except in connection with a TW Upstream
Transfer) held by such TW Investor to a third party that is not a TW Permitted
Transferee, prior to, and as a condition to, such Transfer, such TW Investor
shall cause the Class B Common Shares that are proposed to be Transferred to be
converted into Class A Common Shares and such Transfer shall be treated as an
automatic election by such TW Investor to convert such Class B Common Shares
into Class A Common Shares under Section 3(4) of the Company’s Bye-laws and the
Company hereby agrees that, upon any such deemed election, it shall amend its
register of shareholders to reflect that conversion.
8
(b) Except
with respect to (i) Transfers to other RSL Permitted Transferees or (ii) during
the term of the TW Voting Agreement, Transfers to any TW Investors, each RSL
Investor agrees and acknowledges that should such RSL Investor or any Affiliate
of such RSL Investor, at any time, propose to Transfer any Class B Common Shares
held by such RSL Investor or any Affiliate of such RSL Investor, prior to, and
as a condition to such Transfer, such RSL Investor shall cause the Class B
Common Shares that are proposed to be Transferred to be converted into Class A
Common Shares and such Transfer shall be treated as an automatic election by
such RSL Investor to convert such Class B Common Shares into Class A Common
Shares under Section 3(4) of the Company’s Bye-laws and the Company hereby
agrees that, upon any such deemed election, it shall amend its register of
shareholders to reflect that conversion. All Class B Common Shares
Transferred by an RSL Investor or any Affiliate of such RSL Investor to a TW
Investor pursuant to the terms of this Agreement shall be converted into Class A
Common Shares immediately prior to the expiration of the TW Voting Agreement and
the expiration of the TW Voting Agreement shall be treated as an automatic
election by such TW Investor to convert such Class B Common Shares into Class A
Common Shares under Section 3(4) of the Company’s Bye-laws and the Company
hereby agrees that, upon any such deemed election, it shall amend its register
of shareholders to reflect that conversion.
(c) Notwithstanding
anything to the contrary herein, prior to [•], 2013, each RSL Investor
agrees and acknowledges that it shall not, and it shall cause all of its
Affiliates not to, Transfer any Class B Common Shares held by any such RSL
Investor or Affiliate thereof if (i) as a result or consequence of such Transfer
or (ii) assuming the conversion, exercise or exchange of other securities of the
Company that are issued and outstanding after giving effect to such Transfer
that are vested, exercisable or convertible (in all cases, excluding any vested
options or convertible securities that have an exercise or conversion price per
share greater than the Fair Market Value of the Class A Common Shares at such
time) immediately after giving effect to such Transfer, all Class B Common
Shares issued and outstanding would automatically convert into Class A Common
Shares pursuant to the Company’s Bye-laws; provided, that this
Section 3.2(c)
shall not apply to any Transfers made by any RSL Investor in connection with (i)
a Change of Control Transaction or (ii) an Involuntary Transfer.
(d) Each
TW Investor agrees and acknowledges that immediately prior to the termination of
the TW Voting Agreement, such TW Investor shall cause the conversion of all
Class B Common Shares received by any TW Investor from any RSL Investor into
Class A Common Shares and that such conversion will be treated as an automatic
election by such TW Investor to convert such Class B Common Shares into Class A
Common Shares under Section 3(4) of the Company’s Bye-laws and the Company
hereby agrees that, upon any such deemed election, it shall amend its register
of shareholders to reflect that conversion.
(e) Prior
to [•], 2013, each TW
Investor agrees and acknowledges that it shall not, and it shall cause its
Affiliates not to, without the prior written consent of RSL Savannah, cause the
conversion of any Class B Common Shares held by the RSL Investors and their
Affiliates into Class A Common Shares by converting any of the Class B Common
Shares held by the TW Investors and their Affiliates into Class A Common Shares
for so long as such Class B Common Shares are held by the TW Investors and their
Affiliates.
9
3.3. Change of Control
Transaction.
(a) Notwithstanding
anything to the contrary herein, prior to [•], 2012, each TW Investor
agrees and acknowledges that, without the prior written consent of RSL Savannah,
it shall not, and it shall cause all of its Affiliates not to, initiate,
solicit, knowingly facilitate or enter into any discussions, negotiations,
arrangements or understandings with respect to a Change of Control Transaction
or similar corporate transaction. Between [•], 2012 and [•], 2013, TW shall consult
with RSL Savannah and the Company on a current basis and in good faith with
respect to any discussions, negotiations, arrangements or understandings
undertaken by a TW Investor or any of their respective Affiliates in connection
with a Change of Control Transaction, and TW shall notify RSL Savannah and the
Company in writing within thirty (30) days prior to the initiation of a sale
process or the entry into negotiations by TW or any Affiliate thereof in
connection with a Change of Control Transaction or similar corporate
transaction.
(b) Prior
to [•], 2013, RSL
Savannah and the Company, as the case may be, shall consult with TW on a current
basis and in good faith with respect to any discussions, negotiations,
arrangements or understandings undertaken by an RSL Investor or any of their
respective Affiliates or the Company, as the case may be, in connection with a
Change of Control Transaction, and it, as the case may be, shall notify TW in
writing within thirty (30) days prior to the initiation of a sale process or the
entry into negotiations by an RSL Investor or any of its Affiliates or the
Company, as the case may be, in connection with a Change of Control Transaction
or similar corporate transaction, subject to TW’s entry into a customary
confidentiality agreement in such form and substance reasonably acceptable to
RSL Savannah or the Company, as the case may be.
(c) In
the event that at any time the Board of Directors of the Company (the “Board”) has
determined to approve and/or recommend to the shareholders of the Company an
offer or proposal from any Person with respect to a Change of Control
Transaction (a “Takeover Proposal”),
and at such time the TW Investors beneficially own, directly or indirectly, not
less than 25% of the TW Shares (as adjusted for splits, combination of shares,
reclassification, recapitalization or like changes in capitalization and whether
such TW Shares are in the form of Class A Common Shares or Class B Common
Shares), the Company shall: (i) give each TW Investor prompt written notice of
(A) such determination by the Board with respect to such Takeover Proposal and
(B) the material terms and conditions of the Takeover Proposal, including the
identity of the party making such Takeover Proposal (the “Potential Acquiror”),
subject to any agreements between the Company and the Potential Acquiror with
respect to an obligation of the Company to maintain the confidentiality of the
identity of the Potential Acquiror, and, if available, a copy of the relevant
proposed transaction agreements with such party and any other material
information necessary for the TW Investor to understand the terms and conditions
of the Takeover Proposal (including any relevant non-public information provided
to the Potential Acquiror or its Affiliates or representatives), (ii) give each
TW Investor ten (10) days after delivery of such notice (the “Negotiation Period”)
to propose to the Company an alternate transaction constituting a Change of
Control Transaction involving such TW Investor or its Affiliates and (iii)
negotiate in good faith with such TW Investor or its Affiliates with respect to
such alternate proposal. If such alternate proposal is more favorable
to the shareholders of the Company from a financial point of view than the
Takeover Proposal, (I) the Board shall approve and recommend to the shareholders
of the Company the transaction that is the subject of such alternate proposal
made by a TW Investor or an Affiliate thereof and (II) each RSL Investor shall,
and shall cause its Affiliates to, accept such alternate proposal made by a TW
Investor or Affiliate thereof (whether by vote or tender) in respect of all
Equity Securities that are beneficially owned by such RSL Investor; provided
that, the Board and each RSL Investor shall be under no obligation to approve,
recommend to shareholders or accept, as the case may be, any alternate proposal
to the extent that a Person has offered a subsequent Takeover Proposal that is
more favorable to the shareholders of the Company from a financial point of view
than such alternate proposal; provided, however, in the event
of such subsequent Takeover Proposal, the Company shall comply with clauses (i),
(ii) and (iii) of this Section 3.3(c) with
respect thereto and the Negotiation Period shall recommence. Subject
to the foregoing sentence, the good faith determination of the majority of the
disinterested directors of the Board as to whether any alternate proposal is
more favorable to the shareholders of the Company from a financial point of
view, compared to the most recent Takeover Proposal, shall be
conclusive. In the event that no TW Investor or any Affiliate thereof
makes an alternate proposal to the Company as provided by the foregoing, each TW
Investor shall accept such Takeover Proposal (whether by vote or tender) in
respect of all Equity Securities that are beneficially owned by such TW Investor
within the time period required by such Takeover Proposal, unless the Board
withdraws, withholds, qualifies or modifies or fails to promptly reconfirm (in
the case of the public announcement of an alternate Change of Control
Transaction to the Takeover Proposal) its recommendation of the Takeover
Proposal.
10
(d) The
TW Investors agree that until the termination of the TW Voting Agreement (the
“Standstill
Period”), without the prior written consent of the Board, none of the TW
Investors shall, alone or as part of a “group” (within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934, as in effect on the date
hereof) or in concert with others, in any manner acquire, directly or
indirectly, any Equity Securities that would result in the TW Investors and
their Affiliates owning Equity Securities representing more than 49.9% of the
aggregate voting power of all Equity Securities outstanding at the time of any
such acquisition and without regard to any possible subsequent changes in the
capitalization of the Company. Notwithstanding anything contained
herein to the contrary, this Section 3.3(d) shall
not prohibit or limit the ability of the TW Investors to (A) acquire Class A
Common Shares upon (x) the conversion of any Class B Common Shares held by the
TW Investors or (y) receive Equity Securities issued or issuable by way of
dividend, split, subdivision, conversion or consolidation of shares or in
connection with a reclassification, recapitalization, amalgamation, merger,
consolidation, going private, tender offer, amalgamation, change of control,
other reorganization or otherwise in exchange for or with respect to Equity
Securities owned by the TW Investors, (B) acquire any Equity Securities in any
transaction or series of transactions approved and/or recommended to the
shareholders of the Company by the Board pursuant to which the TW Investors
acquire a controlling interest in the Company (whether by merger, consolidation,
amalgamation, tender offer, recapitalization, reorganization, scheme of
arrangement or any other transaction, including pursuant to Section 3.3(c)), or
(C) make any proposal to the Board to acquire, or acquire, any Equity Securities
in any transaction or series of transactions pursuant to which the TW Investors
would acquire a controlling interest in the Company (whether by merger,
consolidation, amalgamation, tender offer, recapitalization, reorganization,
scheme of arrangement or any other transaction, including pursuant to Section
3.3(c)).
11
4. Right of First
Offer.
4.1. Prior
to any Transfer by the RSL Investors or their Affiliates or the TW Investors or
their Affiliates of any Equity Securities (such transferring Person, an “Offering Investor”),
the Offering Investor shall deliver to the TW Investors or the RSL Investors, as
applicable (such Investors, the “ROFO Recipients”),
written notice (the “Offer Notice”)
stating such Offering Investor’s intention to effect such a Transfer, the number
of Equity Securities subject to such Transfer (the “Offered Shares”), and
the material terms and conditions of the proposed
Transfer. Notwithstanding the foregoing, Transfers that (i)
constitute Permitted Transfers, (ii) are approved by each of RSL Savannah, TW
and the Company, it being understood that the Company’s consent shall not be
unreasonably withheld and shall only be required only to the extent such
Transfer would cause a default under the outstanding indebtedness of the Company
as in effect on the Effective Date as set forth on Schedule A to the TW Voting
Agreement, (iii) are effected in connection with the consummation of a Change of
Control, (iv) convey 1% or less in any single transaction (or 3% or less in the
case of all such Transfers in the aggregate per annum) of the Equity Securities
beneficially owned by the RSL Investors and their Affiliates in the aggregate or
owned by the TW Investors and their Affiliates in the aggregate, as applicable,
on the date hereof, (v) occur following [•], 2013 or (vi) constitute
TW Upstream Transfers, shall not be subject to compliance with this Section
4. The Offer Notice may require that the signing of any sale
documentation relating to the Offered Shares to the ROFO Recipients occur on a
date that is no less than fifteen (15) days, and no more than thirty (30) days,
after the date of the Offer Notice.
4.2. Upon
receipt of the Offer Notice, the ROFO Recipients shall have an irrevocable,
non-transferable option for fifteen (15) days to purchase from the Offering
Investor on the terms and conditions described in the Offer Notice all, but not
less than all, of the Offered Shares, by sending irrevocable written notice of
such acceptance to the Offering Investor and the Company stating the ROFO
Recipients’ intention to collectively purchase all of the Offered Shares and the
ROFO Recipients shall then be obligated to purchase, and the Offering Investor
shall then be obligated to sell the Offered Shares on the terms and conditions
set forth in the Offer Notice.
4.3. If
the ROFO Recipients do not elect to purchase all of the Offered Shares pursuant
to this Section
4, then the Offered Shares set forth in the Offer Notice shall be deemed
declined and the Offering Investor shall be free for a period of thirty (30)
days from the date the written notice from the ROFO Recipients was due to be
received by the Offering Investor to enter into customary definitive agreements
to Transfer the Offered Shares to any Person for consideration having a Fair
Market Value equal to or greater than the consideration set forth in the Offer
Notice, and otherwise on terms and conditions no more favorable, in any material
respect, to the transferee than the terms and conditions contained in the Offer
Notice, and to transfer to such Person the Offered Shares pursuant to such
definitive agreements. The Fair Market Value of any non-cash
consideration shall be determined in accordance with the Pricing Procedure set
forth in Section
10.14.
12
4.4. If
the ROFO Recipients do not elect to purchase all of the Offered Shares pursuant
to this Section
4, and the Offering Investor has not entered into a definitive agreement
described in Section
4.3 within thirty (30) days and consummated an alternative Transfer
within one hundred and eighty (180) days, in each case, from the date the
written notice from the ROFO Recipients was due to be received by the Offering
Investor, then the provisions of this Section 4 shall again
apply, and such Offering Investor shall not Transfer or offer to Transfer such
Equity Securities without again complying with this Section
4.
4.5. Upon
exercise by the ROFO Recipients of their right of first offer, the ROFO
Recipients and the Offering Investor shall be legally obligated to consummate
the purchase contemplated thereby, on the terms and conditions set forth in the
Offer Notice and shall use their commercially reasonable efforts to (i) secure
any Governmental Approvals required to comply with all applicable Laws as soon
as reasonably practicable, (ii) take all such other actions and to execute such
additional documents as are reasonably necessary or appropriate in connection
therewith and (iii) consummate the purchase of the Offered Shares as promptly as
practicable.
4.6. The
restrictions set forth in this Section 4 are in
addition to (and not in lieu of) the restrictions set forth in Section
3. All Class B Common Shares subject to Transfer to any TW
Investor in connection with the exercise of the right of first offer described
in this Section
4 during the term of the TW Voting Agreement shall be automatically
converted into Class A Common Shares immediately prior to the expiration of the
TW Voting Agreement, and such Transfer shall be treated as an automatic election
by such TW Investor to convert such Class B Common Shares into Class A Common
Shares under Section 3(4) of the Company’s Bye-laws and the Company hereby
agrees that, upon any such deemed election, it shall amend its register of
shareholders to reflect that conversion.
4.7. If
the ROFO Recipients consist of more than one TW Investor or RSL Investor, each
TW Investor or RSL Investor, as applicable, shall be entitled to acquire its pro
rata portion (based on the number of Equity Securities held by each such TW
Investor or RSL Investor, respectively, on the date of receipt of the Offer
Notice) of the Offered Shares, or such other proportion as the TW Investors or
the RSL Investors, as applicable, may agree mutually.
4.8. Notwithstanding
the foregoing, prior to any Transfer of any Equity Securities by an Offering
Investor pursuant to this Section 4, the
Offering Investor shall, after complying with the provisions of this Section 4, comply
with the provisions of Section 5 hereof, if
applicable.
5. Tag-Along
Rights.
5.1. Subject
to complying with the provisions of Section 4 above, if
any Investor(s) or any Affiliate of such Investor(s) (for purposes of this Section 5, a “Selling Investor”)
proposes to effect a Tag-Along Transaction prior to and including [•], 2013, then such Selling
Investor(s) shall give written notice (a “Tag-Along Notice”) to
each Other Investor setting forth in reasonable detail the terms and conditions
of such proposed Transfer, including the proposed amount and form of
consideration, terms and conditions of payment and a summary of any other
material terms pertaining to the Transfer. In the event that the
terms and/or conditions set forth in the Tag-Along Notice are thereafter amended
in any respect, the Selling Investor(s) shall give written notice (an “Amended Tag-Along
Notice”) of the amended terms and conditions of the proposed Transfer to
each Other Investor. The Selling Investor(s) shall provide additional
information with respect to the proposed Transfer as reasonably requested by the
Other Investors.
13
5.2. The
Other Investors shall have the right, exercisable upon written notice to the
Selling Investor(s) within twenty (20) days after receipt of any Tag-Along
Notice, or, if later, within seven (7) days of such receipt of the most recent
Amended Tag-Along Notice, to participate in the proposed Transfer by the Selling
Investor(s) to the proposed purchaser (the “Tag-Along
Transferee”) on the terms and conditions set forth in such Tag-Along
Notice or the most recent Amended Tag-Along Notice, as the case may be (such
participation rights being hereinafter referred to as “Tag-Along
Rights”). Any Other Investor that has not notified the Selling
Investor(s) of its intent to exercise Tag-Along Rights within twenty (20) days
of receipt of a Tag-Along Notice (or, if applicable, within seven (7) days of
receipt of an Amended Tag-Along Notice) shall be deemed to have elected not to
exercise such Tag-Along Rights with respect to the Transfer contemplated by such
Tag-Along Notice. Each Other Investor may participate with respect to
Equity Securities owned by such Party in an amount equal to the product of (i) a
fraction, the numerator of which is equal to the total number of Equity
Securities owned by such Other Investor, and the denominator of which is the
aggregate number of Equity Securities collectively owned by the Selling
Investor(s), all participating Other Investors, all other holders of Equity
Securities who have exercised a Tag-Along Right similar to the rights granted to
the Other Investors in this Section 5 that are in
existence on the Effective Date (excluding any vested options or convertible
securities that have an exercise or conversion price per share greater than the
price per share to be paid by the Tag-Along Transferee) and (ii) the total
number of Equity Securities that the Tag-Along Transferee has agreed or
committed to purchase.
5.3. At
the closing of the Transfer to any Tag-Along Transferee pursuant to this Section 5, the
Tag-Along Transferee shall remit to each Other Investor the consideration for
the Equity Securities of such Investor sold pursuant hereto (less each Other
Investor’s pro rata portion of the consideration to be escrowed or held back, if
any, as described below), against delivery by such Other Investor of
certificates (if any) or other instruments evidencing such Equity Securities,
duly endorsed for Transfer or with duly executed stock powers, instruments of
transfer or similar instruments, or such other instrument of Transfer of such
Equity Securities as may be reasonably requested by the Tag-Along Transferee and
the Company, with all stock transfer taxes paid and stamps
affixed. Additionally, each Other Investor shall comply with any
other conditions to closing generally applicable to such Selling Investor(s) and
all Other Investors selling Equity Securities in such
transaction. The consummation of such proposed Transfer shall be
subject to the sole discretion of the Selling Investor(s), who shall have no
liability or obligation whatsoever to any Other Investor participating therein
other than to obtain for such Other Investor the same terms and conditions as
those set forth in the Tag-Along Notice or any Amended Tag-Along
Notice. Each Other Investor shall receive the same amount and form of
consideration received by the Selling Investor for each Share. To the
extent that the Parties are to provide any indemnification or otherwise assume
any other post-closing liabilities, the Selling Investor(s) and all Other
Investors selling Equity Securities in a transaction under this Section 5 shall do so
severally and not jointly (and on a pro rata basis in accordance with their
Equity Securities being sold and solely with respect to the representations,
warranties and covenants that are applicable to such Selling Investor in
connection with such Transfer), and their respective potential liability
thereunder shall not exceed the proceeds received, subject to customary
exceptions in excess of such limits.
14
6. Other
Agreements.
6.1. RSL
Voting.
(a) Subject
to Section 6.3
below, for so long as the TW Investors and their Affiliates beneficially own,
directly or indirectly, at least 25% of the TW Shares (as adjusted for splits,
combination of shares, reclassification, recapitalization or like changes in
capitalization and whether such TW Shares are in the form of Class A Common
Shares or Class B Common Shares), the RSL Investors shall not, and shall cause
their respective Affiliates not to, vote any Equity Securities beneficially
owned by such Persons, respectively, in favor of, or consent to (except in
connection with approving the transactions contemplated by the TW Subscription
Agreement), (i) an increase (via stock split, recapitalization, reclassification
or otherwise) in the number of Class B Common Shares authorized by the Company’s
Bye-laws as in existence on the Effective Date, (ii) the issuance by the Company
of any Class B Common Shares, (iii) the issuance by the Company of any preferred
stock (or any other securities) with general or specific voting rights superior
to those of the Class A Common Shares, (iv) the authorization or issuance by the
Company or any of its subsidiaries of any securities exercisable for or
convertible or exchangeable into (A) Class B Common Shares or (B) preferred
stock of the Company (or any other securities of the Company) with general or
specific voting power superior to those of the Class A Common Shares or (v) a
modification of the terms of the Class B Common Shares as such terms existed on
Effective Date. For avoidance of doubt, a class of securities the
holders of which are entitled to vote as a separate class on any matter
submitted to the shareholders of the Company, other than as required by Law
(except in the case of a Change of Control Transaction), shall be deemed, for
purposes of this Agreement, to constitute securities with general or specific
voting rights superior to those of the Class A Common Shares.
(b) The
RSL Investors shall use their best efforts to vote, and shall use their best
efforts to cause their Affiliates to vote, all Equity Securities beneficially
owned by them as of the date thereof at each annual or special general meeting
of the shareholders of the Company called for the purpose of filling positions
on the Board, or by written consent executed in lieu of such a meeting of
shareholders, in favor of, the election to the Board of (A) two Persons
designated by the TW Investors as long as the TW Investors and their Affiliates
beneficially own at least a majority of the TW Shares (as adjusted for splits,
combination of shares, reclassification, recapitalization or like changes in
capitalization and whether such TW Shares are in the form of Class A Common
Shares or Class B Common Shares) or (B) one Person designated by the TW
Investors as long as the TW Investors and their Affiliates beneficially own at
least 25% of the TW Shares (as adjusted for splits, combination of shares,
reclassification, recapitalization or like changes in capitalization and whether
such TW Shares are in the form of Class A Common Shares or Class B Common
Shares), and the RSL Investors shall take all such other actions reasonably
within their power as shareholders of the Company to cause such Persons to be
elected to the Board. The right of the TW Investors set forth in this
Section 6.1(b)
may not be Transferred to any Person except a TW Permitted
Transferee.
15
6.2.
Issuance of New
Securities.
(a) Subject
to Section 6.3
below, for so long as the TW Investors and their Affiliates beneficially own,
directly or indirectly, at least 25% of the TW Shares (as adjusted for splits,
combination of shares, reclassification, recapitalization or like changes in
capitalization and whether such TW Shares are in the form of Class A Common
Shares or Class B Common Shares), the Company shall not, without the consent of
TW (which consent shall not be subject to the TW Voting Agreement) (except in
connection with the transactions contemplated by the TW Subscription Agreement),
(i) propose or authorize an increase (via stock split, recapitalization,
reclassification or otherwise) in the number of Class B Common Shares authorized
by the Company’s governing documents as in existence on the Effective Date, (ii)
issue any Class B Common Shares, (iii) issue any preferred stock (or any other
securities) with general or specific voting rights superior to those of the
Class A Common Shares or (iv) issue, or authorize the issuance of, by the
Company or any of its subsidiaries, of any securities exercisable for or
convertible or exchangeable into (A) Class B Common Shares or (B) any preferred
stock of the Company (or any other securities of the Company) with general or
specific voting power superior to those of the Class A Common Shares; provided, that the
Company may issue options to purchase Class B Common Shares to RSL Savannah or
any RSL Permitted Transferee (including Ronald S. Lauder) in connection with
Ronald S. Lauder’s compensation for serving on the Board, including (i) any
options that have been granted prior to the Effective Date and (ii) after the
Effective Date, in an amount not to exceed options to purchase 5,000 Class B
Common Shares per year.
(b) Subject
to Section 6.3
below, for so long as the RSL Investors and their Affiliates beneficially own,
directly or indirectly, at least 25% of the Equity Securities (excluding the RSL
Excluded Shares, and as adjusted for splits, combination of shares,
reclassification, recapitalization or like changes in capitalization and whether
such Equity Securities are in the form of Class A Common Shares or Class B
Common Shares) held by them at the Closing Date, the Company shall not, without
the consent of RSL Savannah (except in connection with the transactions
contemplated by the TW Subscription Agreement), (i) propose or authorize an
increase (via stock split, recapitalization, reclassification or otherwise) in
the number of Class B Common Shares authorized by the Company’s governing
documents as in existence on the Effective Date, (ii) issue any Class B Common
Shares, (iii) issue any preferred stock (or any other securities) with general
or specific voting rights superior to those of the Class A Common Shares or (iv)
issue, or authorize the issuance of, by the Company or any of its subsidiaries,
of any securities exercisable for or convertible or exchangeable into (A) Class
B Common Shares or (B) any preferred stock of the Company (or any other
securities of the Company) with general or specific voting power superior to
those of the Class A Common Shares; provided, that the
Company may issue options to purchase Class B Common Shares to RSL Savannah or
any RSL Permitted Transferee (including Ronald S. Lauder) in connection with
Ronald S. Lauder’s compensation for serving on the Board, including (i) any
options that have been granted prior to the Effective Date and (ii) after the
Effective Date, in an amount not to exceed options to purchase 5,000 Class B
Common Shares per year.
6.3. Issuance of New
Stock. Notwithstanding anything to the contrary herein, the
Company may create, issue or authorize the issuance of, by the Company or any of
its subsidiaries, any preferred stock, or any securities exercisable for or
convertible or exchangeable into, preferred stock (collectively, the “New Stock”) of the
Company with a market rate liquidation preference superior to the liquidation
preference rights attached to the Class A Common Shares; provided, that such
shares of New Stock shall not have general or specific voting rights superior to
those of the Class A Common Shares and that the holders of such shares of New
Stock shall not be entitled to vote as a separate class on any matter submitted
to the shareholders of the Company for approval relating to a Change of Control
Transaction, or, except as required by Law, on any other matter; provided, further that the
Company may grant holders of any shares of New Stock the right to designate
directors to the Board in such number which shall not exceed an amount of
directors reasonably proportionate to such holders’ ownership interest in the
Company (except in the case of a default by the Company of the payment of
dividends due to be paid to such holders of shares of New Stock pursuant to the
terms of such New Stock, and in such case, such right to designate directors to
the Board shall only survive for so long as such default is not
cured).
16
6.4. Agreement to
Cooperate. In connection with any Transfer of Class B Common
Shares by the RSL Investors or their Affiliates to the TW Investors in
accordance with the terms of this Agreement at any time prior to the termination
of the TW Voting Agreement, the RSL Investors shall, and shall cause their
respective Affiliates to, cooperate with TW in structuring such Transfer in such
a manner as to avoid the conversion of such Class B Common Shares into Class A
Common Shares. All such Class B Common Shares Transferred in
accordance with this Section 6.4 shall be
(a) subject to the TW Voting Agreement and (b) converted by the applicable TW
Investor into Class A Common Shares immediately prior to the expiration of the
TW Voting Agreement.
6.5. Permitted
Holder. In the event the Company proposes to enter into any
third party financing agreements or any other agreement (or amend any financing
agreement or other agreement in existence on the Effective Date) in which a
default or fundamental change by the Company is triggered by the
beneficial ownership of Equity Securities by a shareholder of the Company or the
Transfer of Equity Securities by a shareholder of the Company, the Company shall
use commercially reasonable efforts to qualify the TW Investors as “permitted
holders” (or the applicable similar term) of Class B Common Shares and other
Equity Securities pursuant to any such agreement or amended
agreement.
6.6. Conduct of
Business. The Company and its Subsidiaries will not 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. The Company has and will
continue to enforce its anti-bribery compliance program, which is designed to
detect and prevent any violations of applicable anti-bribery laws, which
includes, among other things and as appropriate, 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, and
periodic testing of the effectiveness in detecting and reducing violations of
applicable anti-bribery laws and the Company’s internal controls system and
compliance policy. The Company will promptly inform Time Warner of
any activity that the Company has reasonably determined may constitute a
potential violation of any applicable anti-bribery law or a material violation
of the Company’s anti-bribery compliance policy by the Company or its personnel,
and in such instances will promptly investigate and address such potential
violation and shall cooperate with Time Warner and any relevant law enforcement
authorities. The Company also will inform Time Warner if any of its
directors, officers, agents or senior managers 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 business of the
Company.
17
6.7. Tax
Information. By March 31 of each calendar year, the Company
shall provide the RSL Investors and the TW Investors, to the extent any such
Investor or a direct or indirect shareholder, partner or member thereof is
considered a “United States shareholder” of the Company within the meaning of
Section 951(b) of the Code, the information necessary to allow such shareholder
to comply with the applicable U.S. federal income tax reporting requirements
with respect to its investment in the Company, including information sufficient
to complete IRS Form 5471. If in any taxable year the Company is
treated as a passive foreign investment company within the meaning of Section
1297 of the Code with respect to an RSL Investor or a TW Investor, or a direct
or indirect shareholder, partner or member thereof, the Company shall prepare a
statement described in U.S. Treasury Regulations Section 1.1295-1(g)(1) (an
“Annual Information
Statement”), so as to allow such RSL Investor or TW Investor or such
shareholder, partner or member thereof to file a “qualified electing fund”
election under Section 1295 of the Code (a “QEF Election”) with
respect to the Company or to comply with any U.S. federal, state or local income
tax reporting or filing requirements of such RSL Investor or such TW Investor or
shareholder, partner or member thereof in connection with such
election. If in any taxable year an entity in which the Company
invests is treated as a passive foreign investment company within the meaning of
Section 1297 of the Code and an RSL Investor or a TW Investor, or a direct or
indirect shareholder, partner or member thereof, is deemed to own the shares of
such entity under Section 1298(a) of the Code and the U.S. Treasury Regulations
thereunder, the Company will use its best commercial efforts to (i) cause such
entity to comply with the information disclosure requirements necessary for such
entity to be a “qualified electing fund” under Section 1295 of the Code, (ii)
obtain the necessary information to prepare an Annual Information Statement with
respect to such entity and (iii) deliver the Annual Information Statement to the
Person deemed to own the shares of such entity.
7. Preemptive
Rights.
7.1. If
at any time, the Company determines to issue Equity Securities (other than: (i)
to employees, officers, directors, agents or consultants of the Company or any
subsidiary of the Company pursuant to employee benefit, stock option and stock
purchase plans maintained by the Company, in such amounts as are approved by the
Board; (ii) as consideration in connection with a bona fide acquisition (of
assets or otherwise), merger, consolidation or amalgamation by the Company
provided such acquisition, merger, consolidation or amalgamation has been
approved by the Board; (iii) in connection with splits, combination of shares,
reclassification, recapitalization or like changes in capitalization; (iv) the
conversion of any Class B Common Shares into Class A Common Shares; or (v) any
Class A Common Shares or Class B Common Shares issued upon conversion, exchange
or exercise of any Equity Securities outstanding as of the Effective Date or
issued pursuant to clause (i) above (collectively, “Excluded
Securities”)) the Company shall:
18
(a) give
written notice to each TW Investor setting forth in reasonable detail (i) the
designation and all of the terms and provisions of the Equity Securities
proposed to be issued (the “Proposed
Securities”), including, where applicable, the voting powers, preferences
and relative participating, optional or other special rights, and the
qualification, limitations or restrictions thereof and interest rate and
maturity; (ii) the price and other terms of the proposed sale of such Equity
Securities; (iii) the amount of such Proposed Securities; and (iv) such other
information as a TW Investor may reasonably request in order to evaluate the
proposed issuance; and
(b) offer
to issue pro rata to each TW Investor upon the terms described in the notice
delivered pursuant to Section 7.1(a), a
portion of the Proposed Securities equal to the product of (i) the percentage of
the Equity Securities owned by such TW Investor immediately prior to the
issuance of the Proposed Securities relative to the total number of Equity
Securities outstanding immediately prior to the issuance of the Proposed
Securities, multiplied by (ii) the total number of Proposed
Securities.
7.2. A
TW Investor must exercise its respective purchase rights under Section 7.1 within
fifteen (15) days after receipt of such notice from the Company by giving
written notice to the Company within such offering period. The
closing for such transaction shall take place as proposed by the Company (but in
no event (a) prior to the closing of the sale of the Proposed Securities to
other purchasers thereof or (b) less than fifteen (15) days after a TW Investor
shall have exercised its right to purchase Proposed Securities). Upon
the expiration of such offering period, the Company will be free to sell such
Proposed Securities that TW Investors have not elected to purchase during the
sixty (60) days following such expiration on terms and conditions no more
favorable to the purchasers thereof than those offered to TW
Investors.
7.3. Notwithstanding
the foregoing, if at any time, the Company intends to issue Proposed Securities
to the public in a registered underwritten public offering or an offering
pursuant to Rule 144A or Regulation S under the Securities Act, the Company
shall give each TW Investor written notice of such intention (including, to the
extent possible, a copy of the prospectus included in the registration statement
filed in respect of such public offering or an offering circular relating to
such Rule 144A or Regulation S offering, as the case may be) describing, to the
extent then known, the anticipated amount of Equity Securities, range of prices,
timing and other material terms of such offering. The Company shall
give such written notice no less than three (3) business days prior to the
commencement of the marketing efforts with respect to such Rule 144A, Regulation
S or registered public offering, which notice shall constitute an offer to sell
pro rata to each TW Investor an amount of Proposed Securities as calculated
pursuant to Section
7.1(b) (the “Designated
Securities”). A TW Investor must exercise its respective
purchase rights under this Section 7.3 prior to
the commencement of marketing efforts with respect to such offering, which
commencement shall not be earlier than three business days following the
delivery of written notice to the TW Investors of such offering, by providing a
binding indication of interest (which shall be subject to customary conditions
with respect to the offering, including the pricing of the Proposed Securities)
of such TW Investor to purchase the Designated Securities within the range of
prices and consistent with the other terms set forth in the Company’s notice to
it. In the event the pricing of the offer of Proposed Securities is
not yet consummated, any binding indication of interest will expire after the
second trading day subsequent to the anticipated pricing date set forth in the
Company's notice. If a TW Investor exercises its respective purchase
rights provided in this Section 7.3, the
Company shall agree to sell to such TW Investor, at the time of pricing of the
offering of Proposed Securities, the Designated Securities (as adjusted to
reflect the actual size of such offering when priced) at the same price as the
Proposed Securities are offered to the public or the purchasers, as the case may
be. Contemporaneously with the execution of any underwriting
agreement entered into between the Company and the underwriters of an
underwritten public offering or purchase agreement entered into between the
Company and the initial purchasers in a Rule 144A offering, each such TW
Investor shall enter into an instrument in form and substance reasonably
satisfactory to the Company acknowledging such TW Investor’s binding obligation
to purchase the Designated Securities to be acquired by it and containing
representations, warranties and agreements of such TW Investor that are
customary in private placement transactions that are necessary to demonstrate
the suitability of such TW Investor to participate in private placement
transactions. The failure by any TW Investor to provide a binding
indication of interest with respect to a Rule 144A, Regulation S or registered
public offering of Proposed Securities shall constitute a waiver of the
preemptive rights only in respect of such offering. If any TW
Investor waives its preemptive rights with respect to a public offering or Rule
144A or Regulation S offering, the Company agrees to use reasonable best efforts
to allocate to such TW Investor, at such TW Investor's request, Proposed
Securities up to the amount of Designated Securities such TW Investor would be
entitled to purchase pursuant to its preemptive rights had they not been waived,
on the same terms as the other purchasers in such offering.
19
7.4. The
exercise of the TW Investors’ rights under this Section 7 and the
obligations of the Company to issue Equity Securities to the TW Investors
pursuant to this Section 7 shall be
subject to compliance with applicable Laws, rules and regulations, including the
federal securities laws and the rules and regulations of The NASDAQ Stock Market
LLC.
7.5. The
election by a TW Investor not to exercise its rights under this Section 7 in any one
instance shall not affect its right (other than in respect of a reduction in its
percentage holdings) as to any subsequent proposed issuance.
8. Securities Law
Restrictions. To the extent required by the TW Subscription
Agreement, the Parties acknowledge and agree that the TW Shares (and any Class A
Common Shares issued upon conversion of any Class B Common Shares constituting
TW Shares) shall bear restrictive legends substantially in the forms set forth
in the TW Subscription Agreement for so long as such Equity Securities or
holders thereof remain subject to the restrictions described in this Agreement
as set forth herein.
9. Duration of
Agreement. This Agreement shall become effective, binding and
operative immediately, and shall terminate and become void and of no further
force and effect upon the earlier to occur of (i) the mutual agreement of the
Parties and (ii) the date on which the RSL Investors and the TW Investors cease
to beneficially own any Equity Securities; provided, that Sections 2, 9 and 10 (other than Section 10.15) shall
survive any termination of this Agreement.
20
10. Miscellaneous.
10.1. Amendments. This
Agreement may be amended, modified or supplemented only by a written instrument
executed by each of the parties hereto.
10.2. Notices. All
notices, consents, requests, instructions, approvals and other communications
provided for in this Agreement shall be in writing and shall be deemed validly
given upon personal delivery or one day after being sent by overnight courier
service or on the date of transmission if sent by facsimile (so long as for
notices or other communications sent by facsimile, the transmitting facsimile
machine records electronic conformation of the due transmission of the notice),
at the following address or facsimile number, or at such other address or
facsimile number as a Party may designate to the other parties:
10.3. Successors and
Assigns. This Agreement shall inure to the benefit of the
parties, and shall be binding upon the parties and their respective successors,
permitted assigns, heirs and legal representatives.
10.4. No Third-Party
Beneficiaries. Nothing in this Agreement will confer any
rights upon any person that is not a Party or a successor or permitted assignee
of a Party to this Agreement.
10.5. Descriptive
Headings. The headings of the articles, sections and
subsections of this Agreement are inserted for convenience of reference only and
shall not be deemed to constitute a part hereof or affect the interpretation
hereof.
10.6. Applicable
Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAWS
(OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
10.7. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all such counterparts shall together constitute one and
the same instrument. This Agreement, once executed by a Party, may be
delivered to the other Parties hereto by facsimile or electronic transmission of
a copy of this Agreement bearing the signature of the Party so delivering this
Agreement.
10.8. Entire
Agreement. This Agreement, together with the TW Subscription
Agreement, the Registration Rights Agreement, the TW Voting Agreement and that
certain letter agreement by and between Ronald S. Lauder and TW dated as of
March 22, 2009 (together with this Agreement, the TW Subscription Agreement, the
Registration Rights Agreement, the TW Voting Agreement, the “Company Agreements”)
contain the entire agreement of the parties with respect to the subject matter
hereof and supersede all other prior agreements, understandings, statements,
representations and warranties, oral or written, express or implied, between the
parties and their respective affiliates, representatives and agents in respect
of such subject matter.
22
10.9. TW Voting
Agreement. Subject to Section 6.1, in the
event of any inconsistency or conflict between this Agreement and the TW Voting
Agreement with respect to the voting of the TW Shares, each Party hereto agrees
that the TW Voting Agreement shall prevail to the extent of the inconsistency or
conflict.
10.10. SUBMISSION TO
JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW
YORK LOCATED IN NEW YORK COUNTY, NEW YORK OR OF THE UNITED STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK (EACH, A “NEW YORK COURT”),
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HEREBY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND APPELLATE COURTS FROM ANY
THEREOF. EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF TO SUCH PARTY BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO SUCH PARTY AT ITS ADDRESS
SPECIFIED IN SECTION 10.2. THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVE TRIAL BY JURY, AND EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN
SUCH RESPECTIVE JURISDICTIONS.
10.11. Severability. Every
term and provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever,
such term or provision will be enforced to the maximum extent permitted by law
and, in any event, such illegality or invalidity shall not affect the validity
of the remainder of this Agreement.
10.12. Further
Assurances. In connection with this Agreement and the
transactions contemplated hereby, each Investor shall execute and deliver any
additional documents and instruments and perform any additional acts that may be
necessary or appropriate to effectuate and perform the provisions of this
Agreement and such transactions.
10.13. Tax
Withholding. The Company shall be entitled to require payment
in cash or deduction from other compensation payable to any Investor of any sums
required by Federal, state or local tax law to be withheld with respect to the
issuance, vesting, exercise, repurchase or cancellation of, or with respect to
any distribution in respect of, any Class B Common Shares, Class A Common Shares
or other equity securities of the Company.
23
10.14. Pricing
Procedure. The “Fair Market Value” of
any non-cash consideration offered or received in connection with a Transfer
under Section 4
as of any given date shall be determined as follows:
(a) If
such security is listed on any established stock exchange or a national market
system (other than The Pink Sheets), its Fair Market Value shall be the closing
sales price of such security (or the closing bid, if no sales were reported) as
quoted on such exchange or system on the date of determination, as reported in
The Wall Street Journal
or such other source as the Offering Investor deems reliable;
(b) If
such security is regularly quoted by a recognized securities dealer but its
selling price is not reported, its Fair Market Value shall be the mean between
the high bid and low asked prices for such security on the day of determination;
or
(c) In
the absence of an established market for such security or other asset, its Fair
Market Value shall be the price at which such security or asset would be sold in
a current, arms-length transaction between a willing buyer and willing seller,
as determined by an independent internationally recognized investment bank using
customary valuation methods and
procedures.
10.15. Representations and
Warranties.
(a) Each
Party hereto represents and warrants to each other Party that, as of the date
hereof: (i) such Party that is not a natural person is duly organized, validly
existing and in good standing under the jurisdiction of its formation or
organization, (ii) such Party has all requisite power and authority to enter
into and to perform its obligations under this Agreement and the TW Voting
Agreement and to consummate the transactions contemplated hereby and thereby,
(iii) this Agreement and the TW Voting Agreement has been duly executed and
delivered by such Party and constitutes a valid and binding obligation of such
Party, enforceable against such Party in accordance with its terms, except as
such enforceability may be limited by (A) applicable bankruptcy, insolvency,
moratorium, reorganization, fraudulent conveyance or similar Laws in effect
which affect the enforcement of creditor’s rights generally or (B) general
principles of equity, whether considered in a proceeding at Law or in equity and
(iv) the execution and delivery by such Party of this Agreement and the TW
Voting Agreement nor the performance by such Party of any of its obligations
hereunder or thereunder, nor the consummation of the transactions contemplated
hereby or thereby, will violate, conflict with, result in a breach, or
constitute a default (with or without notice or lapse of time or both) under,
give to others any rights of consent, termination, amendment, acceleration or
cancellation of, (A) any provision of the governing documents of such Party that
is not a natural person, (B) any trust agreement, loan or credit agreement,
note, bond, mortgage, indenture, lease, license or other agreement, contract,
instrument, permit or concession to which such Party or any of its Affiliates is
a party or (C) any Law applicable to such Party or its Affiliates.
(b) Ronald
S. Lauder hereby represents and warrants to TW that, as of the date hereof, (i)
Ronald S. Lauder beneficially owns all of the equity interests in each of RSL
Savannah, RSL CME LP and RSL CME GP and (ii) other than the RSL Excluded Shares,
2,961,205 Class B Common Shares are the only securities of the Company
beneficially owned by Ronald S. Lauder.
24
10.16. Specific
Performance. The Parties agree that irreparable damage would
occur in the event that any of the provisions this Agreement were not performed
in accordance with their specific terms of were otherwise
breached. It is accordingly agreed that the Parties shall be entitled
to, in addition to the other remedies provided herein, specific performance of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any New York Court in addition to the other remedies to which such
Parties are entitled.
10.17. Construction. Whenever
the context requires, the gender of all words used in this Agreement includes
the masculine, feminine, and neuter. All references to Articles and
Sections refer to articles and sections of this Agreement, and all references to
Exhibits and Schedules are to exhibits and schedules attached hereto, each of
which is made a part hereof for all purposes. Where any provision in
this Agreement refers to action to be taken by any Person, or which such Person
is prohibited from taking, such provision will be applicable whether such action
is taken directly or indirectly by such Person, including actions taken by or on
behalf of any Affiliate of such Person. Where any provision of this
Agreement refers to a “Transfer of Class B Common Shares” or a “Transfer of
Equity Securities”, such provision shall also refer to a Transfer of an interest
in any Person that holds, directly or indirectly, an interest in such underlying
Class B Common Shares or Equity Securities. All accounting terms used
herein and not otherwise defined herein will have the meanings accorded them in
accordance with U.S. generally accepted accounting principles and, except as
expressly provided herein, all accounting determinations will be made in
accordance with such accounting principles in effect from time to
time. Unless the context otherwise requires: (i) a reference to a
document includes all amendments or supplements to, or replacements or novations
of, that document, (ii) the use of the term “including” means “including,
without limitation”, (iii) the word “or” shall be disjunctive but not exclusive,
(iv) unless expressly provided otherwise, the measure of a period of one month
or year for purposes of this Agreement shall be that date of the following month
or year corresponding to the starting date; provided, that if no corresponding
date exists, the measure shall be that date of the following month or year
corresponding to the next day following the starting date (for example, one
month following February 18 is March 18, and one month following March 31 is May
1) (v) a reference to a statute, regulations, proclamation, ordinance or by-law
includes all statutes, regulations, proclamation, ordinances or by-laws
amending, consolidating or replacing it, whether passed by the same or another
Governmental Authority with legal power to do so, and a reference to a statute
includes all regulations, proclamations, ordinances and by-laws issued under the
statute, (vi) a reference to a successor entity includes any successor entity,
whether by way of merger, amalgamation, consolidation or other business
combination and (vii) calculations based on “beneficial ownership” shall be
determined in accordance with Rule 13d-3 under the Securities Exchange Act of
1934, as in effect on the date hereof. The language used in this
Agreement shall be deemed to be the language chosen by the Parties to express
their mutual intent, and no rule of strict construction shall be applied against
any Party.
[SIGNATURE
PAGE FOLLOWS]
25
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered by their respective officers hereunto duly authorized as of the date
first above written.
This
JOINDER AGREEMENT (this “Joinder”) to that certain Investor Rights Agreement,
dated as of [•], 2009
(the “Investor Rights
Agreement”), by and among Central European Media Enterprises Ltd., a
Bermuda company (the “Company”), Ronald S.
Lauder, RSL Savannah LLC, a Delaware limited liability company (“RSL Savannah”), RSL
Investment LLC, a Delaware limited liability company (“RSL CME GP”), RSL
Investments Corporation, a Delaware corporation (“RSL CME LP” and,
together with Ronald S. Lauder, RSL Savannah, RSL CME GP and the RSL Permitted
Transferees (as defined herein), the “RSL Investors”), TW
Media Holdings LLC, a Delaware limited liability company (“TW” and, together with
the TW Permitted Transferees (as defined therein), the “TW Investors”), and
any parties to the Investor Rights Agreement who agree to be bound by the terms
of the Investor Rights Agreement, is made and entered into as of [•] by [•] (“Holder”). Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed to
them in the Investor Rights Agreement.
WHEREAS,
Holder has acquired certain Equity Securities of the Company, and as a condition
to acquiring such Equity Securities, the Investor Rights Agreement and the
Company require Holder, as a holder of Equity Securities, to become a Party to
the Investor Rights Agreement, and Holder agrees to do so in accordance with the
terms hereof.
NOW,
THEREFORE, in consideration of the foregoing, and the mutual agreements set
forth herein and other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the Parties hereto, intending to be legally
bound, hereby agree as follows:
(a)
Agreement to be
Bound. Holder hereby agrees that upon execution of this
Joinder, that Holder shall become a Party to the Investor Rights Agreement
and shall be fully bound by, and subject to, all of the covenants, terms
and conditions of the Investor Rights Agreement, as if Holder had signed
the Investor Rights Agreement and been an original party
thereto. Holder agrees that [he/she/it] shall be [an “RSL][a
“TW] Investor” for all purposes under the Investor Rights
Agreement.
(b)
Representations and
Warranties. Holder hereby represents and warrants as
follows: (i) Holder has all requisite power and authority to enter into
this Joinder and to carry out his, her or its obligations hereunder; (ii)
this Joinder has
been duly executed by Holder, and constitutes a valid and binding
obligation enforceable against Holder in accordance with its terms; and
(iii) Holder has received a copy of the Investor Rights Agreement and any
and all other information and materials that Holder deems reasonably
necessary or appropriate to enable Holder to make an informed decision
concerning the transactions contemplated by the Investor Rights
Agreement.
(c)
Successors and
Assigns. This Joinder shall bind and inure to the
benefit of and be enforceable by the Company and its successors and
assigns and Holder and any subsequent holder of Equity Securities, and the
respective successors and assigns of
each of them, for so long as they hold Equity
Securities.
(d)
Counterparts. This
Joinder may be executed in any number of counterparts, each of which shall
be deemed an original, but all such counterparts shall together constitute
one and the same instrument. This Joinder may be delivered to
the other parties hereto by facsimile transmission bearing the signature
of the party so delivering this
Joinder.
(e)
Applicable
Law. THIS JOINDER SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE
LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE PRINCIPLES OF
CONFLICTS OF LAWS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
**********************************
IN
WITNESS WHEREOF, the parties have caused this Joinder to be executed and
delivered by their respective officers hereunto duly authorized as of the date
first above written.
Holder
By:
Name:
Title:
Dates Referenced Herein and Documents Incorporated by Reference
