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As Of Filer Filing For·On·As Docs:Size Issuer Agent 4/30/08 Central European Media Enter… Ltd 10-Q 3/31/08 14:4.8M Summit Fin’l Printing |
Document/Exhibit Description Pages Size
1: 10-Q Central European Media Enterprises Ltd 10-Q HTML 1.16M
3-31-2008
2: EX-4.1 Instrument Defining the Rights of Security Holders HTML 124K
3: EX-4.2 Instrument Defining the Rights of Security Holders HTML 678K
4: EX-10.1 Material Contract HTML 225K
5: EX-10.2 Material Contract HTML 172K
6: EX-10.3 Material Contract HTML 125K
7: EX-10.4 Material Contract HTML 80K
8: EX-10.5 Material Contract HTML 81K
9: EX-10.6 Material Contract HTML 175K
10: EX-10.7 Material Contract HTML 168K
11: EX-10.8 Material Contract HTML 157K
12: EX-31.01 Certification per Sarbanes-Oxley Act (Section 302) HTML 14K
13: EX-31.02 Certification per Sarbanes-Oxley Act (Section 302) HTML 14K
14: EX-32.01 Certification per Sarbanes-Oxley Act (Section 906) HTML 13K
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General
Terms:
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||
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Agent:
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Lehman
Brothers Inc. (“LBI”) is acting as agent on behalf of Party A and Party B
for this Transaction. LBI has no obligations, by guarantee,
endorsement or otherwise, with respect to the performance of this
Transaction by either party.
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Trade
Date:
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||
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Option
Style:
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“Modified
American” as set forth under “Procedures for Exercise”
below.
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Option
Type:
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Call
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Seller:
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Party
A
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Buyer:
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Party
B
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Shares:
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The
Class A common stock of Central European Media Enterprises Ltd. (the
“Issuer”), par value USD 0.08 per share, Ticker: CETV
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|
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Number
of Options:
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148,750,
provided that if
Lehman Brothers Inc. and J.P. Morgan Securities Inc. as representatives of
the Initial Purchasers (as defined in the Purchase Agreement dated as of
March 4, 2008 between Party B and Lehman Brothers Inc. and J.P. Morgan
Securities Inc. as representatives of the initial purchasers party thereto
(the “Purchase Agreement”)), exercise the option to purchase additional
Convertible Notes pursuant to Section 2(d) of the Purchase Agreement, the
Number of Options hereunder shall be automatically increased, effective
upon payment by Party B of the Additional Premium on the Additional
Premium Payment Date, by the Applicable Percentage times the number of
Convertible Notes in denominations of USD 1,000 principal amount issued
pursuant to such exercise (such Convertible Notes, the “Additional
Convertible Notes”). For the avoidance of doubt, the Number of Options
shall be reduced by the number of any Options exercised or terminated by
Party B. In no event will the Number of Options be less than
zero.
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Option
Entitlement:
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||
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Applicable
Percentage:
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35%
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Number
of Shares:
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The
product of the Number of Options and the Option
Entitlement.
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Strike
Price:
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USD
105.00
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Cap
Price:
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USD
151.20
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Premium:
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USD
19,828,375 (Premium per Option: USD 133.30), provided that if the
Number of Options is increased pursuant to the proviso to the definition
of “Number of Options” above, Party B shall pay on the Additional Premium
Payment Date an additional Premium (the “Additional Premium”) equal to the
product of the number of Options by which the Number of Options is so
increased and USD 133.30.
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Premium
Payment Date:
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Four
Currency Business Days after the Trade Date
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Additional
Premium Payment Date:
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The
closing date for the purchase and sale of the Additional Convertible
Notes.
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Exchange:
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NASDAQ
Global Select Market
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Related
Exchange(s):
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All
Exchanges
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Market
Disruption Event:
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The
definition of “Market Disruption Event” in Section 6.3(a) of the Equity
Definitions is hereby amended by deleting the words “at any time during
the one-hour period that ends at the relevant Valuation Time, Latest
Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the
case may be” and inserting the words “at any time on any Averaging Date”
after the word “material,” in the third line thereof.
Section
6.3(d) of the Equity Definitions is hereby amended by deleting the
remainder of the provision following the term “Scheduled Closing Time” in
the fourth line thereof.
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Disrupted
Day:
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The
definition of “Disrupted Day” in Section 6.4 of the Equity Definitions
shall be amended by adding the following sentence after the first
sentence: “A Scheduled Trading Day on which a Related Exchange fails to
open during its regular trading session will not be a Disrupted Day if the
Calculation Agent determines that such failure will not have a material
adverse impact on Party A’s ability to unwind any related hedging
transactions related to the
Transaction.”
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Procedure for
Exercise:
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||
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Exercise
Period:
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Notwithstanding
anything to the contrary in the Equity Definitions, an Exercise Period
shall occur with respect to an Option hereunder only if such Option is an
Exercisable Option (as defined below) and the Exercise Period shall be, in
respect of any Exercisable Option, the period commencing on, and
including, the relevant Conversion Date and ending on, but excluding, the
first Averaging Date in respect of such Conversion Date; provided that in
respect of any Exercisable Options relating to Convertible Notes for which
the relevant Conversion Date occurs during the period beginning on, and
including, December 15, 2012, the final day of the Exercise Period shall
be the Scheduled Trading Day immediately prior to the Expiration Date
(such Exercise Period, the “Final Exercise Period”).
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Conversion
Date:
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With
respect to any conversion of Convertible Notes, the date on which the
holder of such Convertible Notes satisfies all of the requirements for
conversion thereof as set forth in Section 10.02 of the
Indenture.
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Exercisable
Options:
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Upon
the occurrence of a Conversion Date, a number of Options equal to (x) the
Applicable Percentage times (y) the number of
Convertible Notes in denominations of USD 1,000 principal amount converted
on such Conversion Date.
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Expiration
Time:
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The
Valuation Time
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Expiration
Date:
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Multiple
Exercise:
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Applicable,
as described under “Exercisable Options” above.
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Automatic
Exercise:
|
Applicable;
and means that, in respect of any Exercise Period other than the Final
Exercise Period, a number of Options not previously exercised hereunder
equal to the number of Exercisable Options shall be deemed to be exercised
on the relevant Averaging Dates to which such Options relate and, in
respect of the Final Exercise Period, all Options not previously exercised
shall be deemed exercised on the relevant Averaging Dates to which such
Options relate; provided that in each
case, if a Notice of Exercise is required, such Options shall be deemed
exercised only to the extent that Party B has provided a Notice of
Exercise to Party A (in each case, such number of Options deemed
exercised, the “Exercised Options”); provided further that,
with respect to Exercised Options relating to an Exercise Period occurring
prior to the Final Exercise Period (an “Early Conversion”), Automatic
Exercise means that an Additional Termination Event shall be deemed to
occur with respect to a portion of the Transaction relating to a number of
Options equal to the number of such Exercised Options, as provided in
clause (i) under “Additional Termination Events” below; provided further that
to the extent the number of Exercised Options relating to any Conversion
Date is less than the number of Exercisable Options relating to such
Conversion Date, Party B shall be deemed to make to Party A on the date it
provided the related Notice of Exercise to Party A (or, if no such notice
is provided, the final day of such Exercise Period) the representations
and warranties contained in paragraph (g) under “Additional
Representations and Warranties of Party B” below as if the reference
therein to “at the time of placing any order with respect to the
Transaction” were replaced with “as of the date of the related Notice of
Exercise (or, if no such notice is provided, the final day of the related
Exercise Period).”
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Notice
of Exercise:
|
Notwithstanding
anything to the contrary in the Equity Definitions, in order to exercise
any Exercisable Options in respect of any Conversion Date occurring prior
to the Final Exercise Period, Party B must notify Party A in writing
before 5:00 p.m. (New York City time) on the Scheduled Trading Day prior
to the scheduled first Averaging Date for the Exercisable Options being
exercised of (i) the number of such Options, (ii) such first scheduled
Averaging Date and the scheduled Settlement Date and (iii) if Party B elected
to satisfy its obligations under the Convertible Notes solely with Shares
(a “Gross Physical Settlement”) in connection with the related conversion
of the Convertible Notes, the fact that Gross Physical Settlement applies
to such conversion, and, in order to exercise any Exercisable Options
during the Final Exercise Period, if Party B elected Gross Physical
Settlement for any conversion of the Convertible Notes during the Final
Exercise Period, Party B must notify Party A of such election in writing
before 5:00 p.m. (New York City time) on December 15,
2012.
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Valuation:
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||
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Valuation
Time:
|
At
the close of trading on the Exchange, without regard to extended or after
hours trading.
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|
|
Averaging
Dates:
|
(x)
For any Exercised Option relating to an Exercise Period occurring prior to
the Final Exercise Period, the 25 (or 60 if Party B has notified Party A
that Gross Physical Settlement applies to the related conversion)
consecutive Scheduled Trading Days commencing on and including the third
“Settlement Period Trading Day” (as defined in the Indenture) following
the relevant Conversion Date, or (y) for any Exercisable Option relating
to the Final Exercise Period, the 25 (or 60 if Party B has notified Party
A that Gross Physical Settlement applies to conversions during the Final
Exercise Period) consecutive Scheduled Trading Days commencing on, and
including, the 27th (or 62nd if Party B has notified Party A that Gross
Physical Settlement applies to conversions during the Final Exercise
Period) Scheduled Trading Day immediately preceding the Expiration
Date.
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Averaging
Date Market Disruption:
|
Modified
Postponement; provided that,
notwithstanding anything to the contrary in the Equity Definitions and in
addition to the provisions of Section 6.7(c)(iii) of the Equity
Definitions, if any Averaging Date is a Disrupted Day, the Calculation
Agent may assign additional dates to be Averaging Dates and/or make
adjustments to the number of Options to which each Averaging Date relates
(including increasing such number or reducing such number to zero with
respect to one or more Averaging Dates).
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Relevant
Price:
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For
any Averaging Date, the VWAP Price for such Averaging
Date.
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VWAP
Price:
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For
any Exchange Business Day, the dollar volume weighted average price per
Share for that Exchange Business Day based on transactions executed during
that Exchange Business Day on the Exchange, as reported on Bloomberg Page
“CETV.UQ <Equity> AQR” (or any successor thereto), or in the event
such price is not so reported on such Exchange Business Day for any
reason, as reasonably determined by the Calculation
Agent.
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Settlement
Terms:
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||
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Settlement
Currency:
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USD
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Settlement
Date or Cash Settlement Payment Date:
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For
any Exercised Option, the date Shares will be delivered or cash will be
paid with respect to the Convertible Notes related to such Exercised
Options, under the terms of the Indenture; provided that if Gross
Physical Settlement applies to the related conversion of the Convertible
Notes and the Exercised Option relates to an Exercise Period other than
the Final Exercise Period, one Settlement Cycle immediately following the
final Averaging Date relating to such Exercised
Option.
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Settlement
Method Election:
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Applicable;
provided that
Party B shall not be permitted to elect Cash Settlement and hereby agrees
not to make an election other than the Default Settlement Method with
respect to the Transaction unless Party B makes to Party A in writing on
the date of its election the representations and warranties contained in
paragraph (g) under “Additional Representations and Warranties of Party B”
below where the reference therein to “at the time of placing any order
with respect to the Transaction” shall be replaced with “as of the date of
such election of Cash Settlement.”
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Electing
Party:
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Party
B
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Settlement
Method Election Date:
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The
third Scheduled Trading Day immediately preceding the first Averaging Date
for the relevant Exercisable Options.
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Default
Settlement Method:
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Physical
Settlement
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Cash
Settlement Terms:
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Cash
Settlement:
|
If
Cash Settlement applies with respect to any Exercised Options, a relevant
portion of the Transaction shall expire on each Averaging Date with
respect to a number of Options equal to the relevant number of Exercised
Options divided
by the number of scheduled Averaging Dates relating to such
Exercised Options, rounded down to the nearest whole number, except the
portion relating to the last such Averaging Date shall equal such relevant
number of Exercised Options minus the number of
Options relating to all preceding Averaging Dates relating to such
Exercised Options (in each case subject to adjustment by the Calculation
Agent in respect of any Disrupted Day). On the Cash Settlement Payment
Date relating to the relevant Exercised Options, Party A shall pay to
Party B the aggregate Cash Settlement Amount for all related Averaging
Dates.
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Cash
Settlement Amount:
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For
each Averaging Date, an amount, as calculated by the Calculation Agent,
equal to (i) the Strike Price Differential for such Averaging Date, multiplied by (ii) the
number of Options to which such Averaging Date relates, multiplied by (iii) the
Option Entitlement as of such Averaging
Date.
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Strike
Price Differential:
|
For
each Averaging Date, if the Relevant Price for such Averaging Date is (a)
greater than the Strike Price and less than or equal to the Cap Price, an
amount equal to the excess of the Relevant Price for such Averaging Date
over the Strike Price, (b) greater than the Cap Price, an amount equal to
the excess of the Cap Price over the Strike Price, or (c) less than or
equal to the Strike Price, zero.
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|
|
Physical
Settlement Terms:
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||
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Physical
Settlement:
|
If
Physical Settlement applies with respect to any Exercised Options, a
relevant portion of the Transaction shall expire on each Averaging Date
with respect to a number of Options equal to the relevant number of
Exercised Options divided by the number
of scheduled Averaging Dates, rounded down to the nearest whole number,
except the portion relating to the last such Averaging Date shall equal
such relevant number of Exercised Options minus the number of
Options relating to all preceding Averaging Dates relating to such
Exercised Options (in each case subject to adjustment by the Calculation
Agent in respect of any Disrupted Day). On the Settlement Date relating to
the relevant Exercised Options, Party A shall deliver to Party B the
aggregate Number of Shares to be Delivered for all related Averaging Dates
and pay to Party B any Fractional Share Amount resulting from such
aggregation (valued at the Relevant Price for the last Averaging
Date).
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Number
of Shares to be Delivered:
|
An
amount of Shares equal to the Cash Settlement Amount for such Averaging
Date divided by
the Relevant Price for such Averaging Date.
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Other
Applicable Provisions
in
Respect of Physical Settlement:
|
The
representations and agreements contained in Section 9.11 of the Equity
Definitions shall be modified by excluding any representations therein
relating to restrictions, obligations, limitations or requirements under
applicable securities laws that exist as a result of the fact that Party B
is the issuer of the Shares.
|
| Share Adjustments: | ||
|
Potential
Adjustment Events:
|
Notwithstanding
Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event”
means an occurrence of any event or condition, as set forth in Section
10.05 of the Indenture, that would result in an adjustment to the
Conversion Rate of the Convertible Notes; provided that in no
event shall there be any adjustment hereunder as a result of an adjustment
to the Conversion Rate pursuant to Section 10.04(b) or Section 10.05(i) of
the Indenture.
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|
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Method
of Adjustment:
|
Calculation
Agent Adjustment; which means, notwithstanding anything to the contrary in
the Equity Definitions, upon any adjustment to the Conversion Rate of the
Convertible Notes pursuant to the Indenture (other than pursuant to
Section 10.04(b) or Section 10.05(i) of the Indenture) (i) the Calculation
Agent shall make a corresponding adjustment to any of the Strike Price,
Number of Options and the Option Entitlement and (ii) the Calculation
Agent may, but is not required to, make any adjustment consistent with the
Calculation Agent Adjustment set forth in Section 11.2(c) of the Equity
Definitions to the Cap Price or any other variable relevant to the
exercise, settlement or payment for the Transaction (other than the Strike
Price) to preserve the fair value of the Options to Party A after taking
into account the effect of such Potential Adjustment Event; provided that in no
event shall the Cap Price be less than the Strike Price; provided further, that
adjustments may be made to the Cap Price to account for changes in
volatility, expected dividends, stock loan rate and liquidity relevant to
the Shares or to the Transaction.
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Extraordinary
Events:
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||
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Merger
Events:
|
Notwithstanding
Section 12.1(b) of the Equity Definitions, a “Merger Event” means the
occurrence of any event or condition set forth in Section 10.06(a) or
Section 10.06(b) of the Indenture.
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|
|
Tender
Offers:
|
Applicable;
provided that
notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender
Offer” means the occurrence of any event or condition set forth in Section
10.05(f) or clause (1) of the definition of “Fundamental Change” in
Section 1.01 of the Indenture.
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|
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Consequence
of Merger Events/Tender Offers:
|
Notwithstanding
Sections 12.2 and 12.3 of the Equity Definitions, upon the occurrence of a
Merger Event or a Tender Offer:
|
|
(i) the
Calculation Agent shall make a corresponding adjustment in respect of any
adjustment under the Indenture to any one or more of the nature of the
Shares, Strike Price, Number of Options and the Option Entitlement; provided, however, that such
adjustment shall be made without regard to any adjustment to the
Conversion Rate for the issuance of additional shares as set forth in
Section 10.04(b) or Section 10.05(i) of the Indenture;
and
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||
|
(ii) the
Calculation Agent may, in its sole discretion, make any adjustment
consistent with the Modified Calculation Agent Adjustment set forth in
Section 12.2(e) or 12.3(d) of the Equity Definitions, as applicable, to
the Cap Price or any other variable relevant to the exercise, settlement
or payment for the Transaction; provided, however, that in no
event shall the Cap Price be less than the Strike
Price;
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||
|
provided that, for the
avoidance of doubt, adjustments shall be made pursuant to the provisions
of subparagraphs (i) and (ii) above regardless of whether any Merger Event
or Tender Offer gives rise to an Early Conversion; and
provided further that,
notwithstanding the foregoing, with respect to any Majority Tender Offer,
Party A may elect for Cancellation and Payment (Calculation Agent
Determination) to apply. “Majority Tender Offer” means A Tender
Offer as defined in Section 12.1(d) of the Equity Definitions that results
in the relevant entity or person purchasing, or otherwise obtaining or
having the right to obtain, by conversion or other means, 50% or greater
than 50% of the outstanding voting shares of the Issuer, as determined by
the Calculation Agent, based upon the making of filings with governmental
or self-regulatory agencies or such other information as the Calculation
Agent deems relevant.
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|
Modified
Calculation Agent Adjustment:
|
For
greater certainty, the definition of “Modified Calculation Adjustment” in
Sections 12.2 and 12.3 of the Equity Definitions shall be amended by (i)
adding the following italicized language after the stipulated
parenthetical provision: “(including adjustments to account for
changes in
expected dividends, stock loan rate, liquidity, or, in the case of the Cap
Price, also changes in volatility, relevant to the Shares or to the
Transaction) from the
Announcement Date to the Merger Date (Section 12.2) or Tender
Offer Date (Section 12.3),” and (ii) deleting the phrase “,
expected dividends, stock loan rate” from such stipulated parenthetical
provision.
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|
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Announcement
Event:
|
If
an Announcement Event occurs, the Calculation Agent will determine the
economic effect of the Announcement Event on the theoretical value of the
Transaction (including without limitation any change in expected
dividends, stock loan rate, liquidity, or, in the case of the Cap Price,
also changes in volatility, relevant to the Shares or to the Transaction)
from the Announcement Date to the Expiration Date. If such economic effect
is material to either party, the Calculation Agent will adjust the Cap
Price to account for such economic effect; provided that in no
event shall the Cap Price be less than the Strike Price. “Announcement
Event” shall mean the occurrence of (i) the first public announcement of a
firm intention to engage in a transaction that may lead to a Merger Event,
(ii) the first public announcement of a firm intention to purchase or
otherwise obtain the requisite number of shares that may lead to a Tender
Offer or (iii) in each case, any subsequent amendment to or withdrawal of
such announcement.
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Composition
of Combined Consideration:
|
Not
Applicable
|
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Nationalization,
Insolvency or Delisting:
|
Cancellation
and Payment
|
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|
Delisting:
|
The
definition of “Delisting” in Section 12.6 of the Equity Definitions shall
be deleted in its entirety and replaced with the following: ‘“Delisting”
means that the Exchange announces that pursuant to the rules of such
Exchange, the Shares cease (or will cease) to be listed, traded or
publicly quoted on the Exchange for any reason (other than a Merger Event
or Tender Offer) and are not immediately re-listed, re-traded or re-quoted
on the New York Stock Exchange, the American Stock Exchange, the NASDAQ
Global Select Market or the NASDAQ Global Market (or their respective
successors)”
|
|
Additional
Disruption Events:
|
||
|
Change
in Law:
|
Applicable
|
|
|
Failure
to Deliver:
|
Applicable
|
|
|
Insolvency
Filing:
|
Applicable
The
definition of “Insolvency Filing” in Section 12.9 of the Equity
Definitions shall be amended by deleting the clause “provided that such
proceedings instituted or petitions presented by creditors and not
consented to by the Issuer shall not be deemed an Insolvency Filing” at
the end of such definition and replacing it with the following: “; or it
has instituted against it a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency law or
other similar law affecting creditors’ rights, or a petition is presented
for its winding-up or liquidation by a creditor and such proceeding is not
dismissed, discharged, stayed or restrained in each case within fifteen
(15) days of the institution or presentation thereof.”
|
|
|
Hedging
Disruption:
|
Applicable
|
|
|
Increased
Cost of Hedging:
|
Applicable
|
|
|
Loss
of Stock Borrow:
|
Not
Applicable
|
|
|
Increased
Cost of Stock Borrow:
|
Not
Applicable
|
|
|
Hedging
Party:
|
Party
A shall be the Hedging Party for all Extraordinary
Events
|
|
|
Determining
Party:
|
Party
A shall be the Determining Party for all Extraordinary
Events
|
|
|
Additional
Provisions:
|
||
|
Non-Reliance:
|
Applicable
|
|
|
Agreements
and Acknowledgments Regarding Hedging Activities:
|
Applicable
|
|
|
Additional
Acknowledgments:
|
Applicable
|
|
|
Credit
Support Provider:
|
With
respect to Party A, the guarantee (the “Parent Guarantee”) made by Lehman
Brothers Holdings, Inc. (“Holdings”), in favor of Party B, attached hereto
as Exhibit A.
|
|
|
Credit
Support Document:
|
With
respect to Party A, the Parent Guarantee.
|
|
| Additional Representations and Warranties of Party B: | In addition to the representations set forth in the Agreement, Party B further represents that; |
|
|
(a)
(i) It is not entering into the Transaction on behalf of or for the
accounts of any other person or entity, and will not transfer or assign
its obligations under the Transaction or any portion of such obligations
to any other person or entity except in compliance with applicable laws
and the terms of the Transaction; (ii) it understands that the Transaction
is subject to complex risks which may arise without warning, may at times
be volatile, and that losses may occur quickly and in unanticipated
magnitude; (iii) it is authorized to enter into the Transaction and such
action does not violate any laws of its jurisdiction of organization or
residence (including, but not limited to, any applicable position or
exercise limits set by any self-regulatory organization, either acting
alone or in concert with others) or the terms of
any agreement to which it is a party; (iv) it has consulted with its legal
advisor(s) and has reached its own conclusions about the Transaction, and
any legal, regulatory, tax, accounting or economic consequences arising
from the Transaction; and (v) it has concluded that the Transaction is
suitable in light of its own investment objectives, financial capabilities
and expertise.
(b)
If Party B purchases any Shares pursuant to the Transaction, such
purchase(s) will comply with (i) all laws and regulations applicable to it
and (ii) all contractual obligations of Party B.
(c)
At all times until termination of the Transaction, Party B is an “eligible
contract participant” as the term is defined in the Commodity Futures
Modernization Act of 2000.
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|
(d)
Neither Party A nor any of its affiliates has advised it with respect to
any legal, regulatory, tax, accounting or economic consequences arising
from the Transaction, and neither Party A nor any of its affiliates is
acting as agent (other than LBI as dual agent if specified above), or
advisor for Party B in connection with the Transaction.
(e)
Each of its required filings under all applicable securities laws have
been filed and that, as of the respective dates thereof there is no
material misstatement of material fact contained therein or omission of a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(f)
It has not entered into any obligation that would contractually limit it
from effecting Physical Settlement or Cash Settlement under the
Transaction.
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||
|
(g)
As of the Trade Date, Party B is in compliance with its reporting
obligations under the Exchange Act and its most recent Annual Report on
Form 10-K, together with all reports subsequently filed by it pursuant to
the Exchange Act, taken together and as amended and supplemented to the
Trade Date, do not, as of their respective filing dates, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading such that Party B’s officers and directors are not in
possession of any material non-public information concerning Party B or
its securities.
|
|
(h)
The Transaction and any repurchase of Shares by Party B in connection with
the Transaction has been approved by its board of directors and that any
such repurchase has been publicly disclosed.
|
||
|
(i)
It is not entering into the Transaction to create actual or apparent
trading activity in the Shares (or any security convertible into or
exchangeable for Shares), to manipulate the price of the Shares (or any
security convertible into or exchangeable for Shares) or to facilitate a
distribution of Shares (or any security convertible into or exchangeable
for Shares).
|
||
|
(j)
It is not, and, after giving effect to the transactions contemplated
hereby will not be, an “investment company” as such term is defined in the
Investment Company Act of 1940, as amended.
|
||
|
(k)
It is not on the Trade Date engaged in a distribution, as such term is
used in Regulation M under the Securities Exchange Act of 1934, as amended
(“Regulation M”), of any securities of Party B, other than a distribution
meeting the requirements of the exception set forth in section 101(b)(10)
or 102(b)(7) of Regulation M. Party B shall not, until the
second Exchange Business Day immediately following the Trade Date, engage
in any such distribution.
|
||
|
(l)
On the Trade Date and on any Additional Premium Payment Date (A) the
assets of Party B at their fair valuation exceed the liabilities of Party
B, including contingent liabilities, (B) the capital of Party B is
adequate to conduct the business of Party B and (C) Party B has the
ability to pay its debts and obligations as such debts mature and does not
intend to, or does not believe that it will, incur debt beyond its ability
to pay as such debts mature.
|
|
Other
Provisions:
|
||
|
Alternative
Calculations and Payment on Early Termination and on
Certain Extraordinary Events:
|
If,
in respect of the Transaction, an amount is payable by Party A to Party B
(i) pursuant to Sections 12.2, 12.3, 12.6, 12.7 or 12.9 of the Equity
Definitions (except in the event of a Nationalization, Insolvency, Tender
Offer or a Merger Event, in each case, in which the consideration to be
paid to holders of Shares consists solely of cash) or (ii) pursuant to
Section 6(d)(ii) of the Agreement (except in the event of an Event of
Default in which Party B is the Defaulting Party or a Termination Event in
which Party B is the Affected Party that resulted from an event or events
outside Party B’s control) (a “Payment Obligation”), Party B shall have
the right, in its sole discretion, to require Party A to satisfy any such
Payment Obligation by the Share Termination Alternative (as defined below)
by giving irrevocable telephonic notice to Party A, confirmed in writing
within one Currency Business Day, no later than 4:00 p.m. New York local
time on the Merger Date, Tender Offer Date, Announcement Date or Early
Termination Date, as applicable (“Notice of Share
Termination”).
Notwithstanding
anything to the contrary in the foregoing, with respect to any Payment
Obligation resulting from an Additional Termination Event in connection
with an Early Conversion, Party B shall be deemed to have elected as of
the Trade Date to require Party A to satisfy any such Payment Obligation
by the Share Termination Alternative; provided that Party B
may elect for the Share Termination Alternative not to apply to such
Payment Obligation by (x) giving written notice of such election to Party
A no later than 4:00 p.m., New York local time, on the Scheduled Trading
Day immediately preceding the relevant Early Termination Date and (y)
making to Party A in such written notice the representations and
warranties contained in paragraph (g) under “Additional Representations
and Warranties of Party B” above where the reference therein to “at the
time of placing any order with respect to the Transaction” shall be
replaced with “as of the date of this written notice.”
Upon
Notice of Share Termination no later than 8:00 a.m. on the Exchange
Business Day immediately following the Merger Date, Tender Offer Date,
Announcement or Early Termination Date, as applicable, the following
provisions shall apply:
|
|
|
Share
Termination Alternative:
|
Applicable
and means that Party A shall deliver to Party B the Share Termination
Delivery Property on the date, or within a commercially reasonable period
of time after, when the Payment Obligation would otherwise be due pursuant
to Section 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) and
6(e) of the Agreement, as applicable (the “Share Termination Payment
Date”), in satisfaction of the Payment Obligation in the manner reasonably
requested by Party B free of
payment.
|
|
Share
Termination Delivery Property:
|
A
number of Share Termination Delivery Units, as calculated by the
Calculation Agent, equal to the Payment Obligation divided by the Share
Termination Unit Price. The Calculation Agent shall adjust the
Share Termination Delivery Property by replacing any fractional portion of
a security therein with an amount of cash equal to the value of such
fractional security based on the values used to calculate the Share
Termination Unit Price.
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|
|
Share
Termination Unit Price:
|
The
value to Party A of property contained in one Share Termination Delivery
Unit on the date such Share Termination Delivery Units are to be delivered
as Share Termination Delivery Property, as determined by the Calculation
Agent in its discretion by commercially reasonable means and notified by
the Calculation Agent to Party A at the time of notification of the
Payment Obligation.
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|
|
Share
Termination Delivery Unit:
|
In
the case of a Termination Event or Event of Default, one Share or, in the
case of Nationalization, Insolvency or Merger Event or Tender Offer, a
unit consisting of the number or amount of each type of property received
by a holder of one Share (without consideration of any requirement to pay
cash or other consideration in lieu of fractional amounts of any
securities) in such Nationalization, Insolvency, Merger Event or Tender
Offer, as determined by the Calculation Agent. If a Share Termination
Delivery Unit consists of property other than cash or New Shares and if
Party B provides irrevocable written notice to the Calculation Agent on or
prior to the Merger Date that it elects to have Party A deliver cash, New
Shares or a combination thereof (in such proportion as Party B designates)
in lieu of such other property, the Calculation Agent will replace such
property with cash, New Shares or a combination thereof as components of a
Share Termination Delivery Unit in such amounts, as determined by the
Calculation Agent in its discretion by commercially reasonable means, as
shall have a value equal to the value of the property so
replaced. If such Nationalization, Insolvency, Merger Event or
Tender Offer involves a choice of consideration to be received by holders,
such holder shall be deemed to have elected to receive the maximum
possible amount of cash.
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|
Failure
to Deliver:
|
Applicable
|
|
|
Other
applicable provisions:
|
If
the Transaction is to be Share Termination Settled, the provisions of
Sections 9.8, 9.9, 9.10, 9.11 and 9.12 (as modified above) of the Equity
Definitions will be applicable, as if “Physical Settlement” applied to the
Transaction; provided that all
references to “Shares” shall be read as references to “Share Termination
Delivery Units” and the representations and agreements contained in
Section 9.11 of the Equity Definitions shall be modified by excluding any
representations therein relating to restrictions, obligations, limitations
or requirements under applicable securities laws that exist as a result of
the fact that Party B is the issuer of the Shares. “Share
Termination Settled” in relation to a Transaction means that Share
Termination Settlement is applicable to the
Transaction.
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|
|
Special
Provisions for Party B Payments:
|
Party
A and Party B agree that, notwithstanding anything to the contrary herein
or in the Agreement, in the event that (i) an Early Termination Date
(whether as a result of an Event of Default or Termination Event) occurs
or is designated with respect to any Transaction and, as a result, Party B
owes to Party A an amount calculated under Section 6(e) of the Agreement
or (ii) an Extraordinary Event occurs that results in the termination or
cancellation of any Transaction pursuant to Article 12 of the Equity
Definitions and, as a result, Party B owes to Party A a Cancellation
Amount or any other amount in respect to this Transaction, such amount
shall be deemed to be zero.
|
|
|
Regulatory
Provisions:
|
(a)
Party B represents and warrants that it has received and read and
understands the Notice of Regulatory Treatment and the OTC Option Risk
Disclosure Statement.
(b)
The Agent will furnish Party B upon written request a statement as to the
source and amount of any remuneration received or to be received by the
Agent in connection with the Transaction evidenced
hereby.
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|
|
Transfer:
|
Notwithstanding
Section 7 of the Agreement, Party A may assign its rights and obligations
under the Transaction, in whole and not in part, to any Affiliate of
Holdings effective upon delivery to Party B of the full unconditional
guarantee by Holdings, substantially in the form of the Parent Guarantee,
in favor of Party B, of the obligations of such Affiliate; provided, however, that
notwithstanding the foregoing no such assignment by Party A as assignor
(the “Assignor”) shall be permitted unless:
|
|
(i)
Party B will not, as a result of such assignment, be required to pay to
such Affiliate any amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) of the Agreement greater than the amount in respect of which
Party B would have been required to pay to the Assignor absent such
transfer or otherwise suffer any other additional tax burden (whether an
Indemnifiable Tax or otherwise) or Party A or such Affiliate waives any
such additional payment obligation under Section 2(d)(i)(4) of the
Agreement or agrees to make Party B whole for such additional tax
burden;
(ii)
such Affiliate will not, as a result of such assignment, be required to
withhold or deduct on account of a Tax under Section 2(d)(i) of the
Agreement in an amount in excess of that which the Assignor would have
been required to so withhold or deduct absent such transfer unless such
Affiliate elects (or is required pursuant to Section 2(d)(i)(4) of the
Agreement) to gross up Party B with respect to such excess withholding
(either by payment directly to the taxing authority or a payment to Party
B); and
(iii)
immediately upon giving effect to such assignment, no Event of Default and
no Termination Event will occur as a direct result of such
assignment.
|
||
|
If
Party A, in its sole discretion, determines that its “beneficial
ownership” at any time (within the meaning of Section 16 of the Exchange
Act and rules promulgated thereunder) exceeds 8.0% or more of Party B’s
outstanding Shares; and, in its sole discretion, Party A is unable after
its commercially reasonable efforts to effect a transfer or assignment on
pricing terms and in a time period reasonably acceptable to Party A that
would reduce its “beneficial ownership” to 7.5%; Party A may designate any
Exchange Business Day as an Early Termination Date with respect to a
portion (the “Terminated Portion”) of the Transaction, such that its
“beneficial ownership” following such partial termination will be equal to
or less than (but not materially less than) 7.5%. In the event
that Party A so designates an Early Termination Date with respect to a
portion of the Transaction, a payment shall be made pursuant to Section 6
of the Agreement as if (i) an Early Termination Date had been designated
in respect of Transaction having terms identical to the Transaction and
Numbers of Options equal to the Terminated Portion, (ii) Party B shall be
the sole Affected Party with respect to such partial termination and (iii)
such Transaction shall be the only Terminated
Transaction.
|
|
Staggered
Settlement:
|
Party
A may, by notice to Party B on or prior to any Settlement Date (a “Nominal
Settlement Date”), elect to deliver any Shares required to be delivered by
it on two or more dates (each, a “Staggered Settlement Date”) as
follows:
(i)
in such notice, Party A will specify to Party B the related Staggered
Settlement Dates (the first of which will be such Nominal Settlement Date
and the last of which will be no later than the twentieth (20th)
Exchange Business Day following such Nominal Settlement Date) and the
number of Shares that it will deliver on each Staggered Settlement
Date;
(ii)
the aggregate number of Shares that Party A will deliver to Party B
hereunder on all such Staggered Settlement Dates will equal the number of
Shares that Party A would otherwise be required to deliver on such Nominal
Settlement Date; and
(iii)
if the Physical Settlement terms set forth above were to apply on
such Nominal Settlement Date, then the Physical Settlement terms will
apply on each Staggered Settlement Date, except that the related Shares to
be delivered by Party A will be allocated among such Staggered Settlement
Dates as specified by Party A in the notice referred to in clause (i)
above and Party B shall pay the Settlement Amount for those Shares on the
Nominal Settlement Date.
|
|
|
Set-Off
and Netting:
|
Party
A agrees not to set-off or net amounts due from Party B with respect to
the Transaction hereunder against amounts due from Party A to Party B
under obligations other than Equity Contracts. Section 2(c) of the
Agreement as it applies to payments due with respect to the Transaction
hereunder shall remain in effect and is not subject to the first sentence
of this provision.
Upon
the occurrence of an Event of Default or Termination Event with respect to
a party who is the Defaulting Party or the Affected Party (“X”), the other
party (“Y”) will have the right (but not be obliged) without prior notice
to X or any other person to set-off or apply any obligation of X under an
Equity Contract owed to Y (or any Affiliate of Y) (whether or not matured
or contingent and whether or not arising under the Agreement, and
regardless of the currency, place of payment or booking office of the
obligation) against any obligation of Y (or any Affiliate of Y) under an
Equity Contract owed to X (whether or not matured or contingent and
whether or not arising under the Agreement, and regardless of the
currency, place of payment or booking office of the
obligation). Y will give notice to the other party of any
set-off effected under this
paragraph.
|
|
|
“Equity
Contract” shall mean for purposes of this paragraph any transaction
relating to Shares between X and Y (or any Affiliate of Y) that qualifies
as ‘equity’ under applicable accounting rules.
Amounts
(or the relevant portion of such amounts) subject to set-off may be
converted by Y into the Termination Currency at the rate of exchange at
which such party would be able, acting in a reasonable manner and in good
faith, to purchase the relevant amount of such currency.
If
any obligation is unascertained, Y may in good faith and a commercially
reasonable manner estimate that obligation and set-off in respect of the
estimate, subject to the relevant party accounting to the other when the
obligation is ascertained.
Nothing
in this section shall be effective to create a charge or other security
interest. This section shall be without prejudice and in
addition to any right of set-off, combination of accounts, lien or other
right to which any party is at any time otherwise entitled (whether by
operation of law, contract or otherwise).
|
|
|
Equity
Rights:
|
Party A acknowledges and agrees that this Confirmation is not intended to convey to it rights with respect to the Transaction that are senior to the claims of common stockholders in the event of Party B’s bankruptcy. For the avoidance of doubt, the parties agree that the preceding sentence shall not apply at any time other than during Party B’s bankruptcy to any claim arising as a result of a breach by Party B of any of its obligations under this Confirmation or the Agreement. For the avoidance of doubt, the parties acknowledge that this Confirmation is not secured by any collateral that would otherwise secure the obligations of Party B herein under or pursuant to any other agreement. |
|
No
Collateral:
|
No
collateral is required to be posted by Party B in respect of the
Transaction.
|
|
|
Bankruptcy
Code Provisions:
|
Each
of Party A and Party B agrees and acknowledges that Party A is a “swap
participant” and/or “financial participant” within the meaning of Sections
101(53C) and 101(22A) of Title 11 of the United States Code (the
“Bankruptcy Code”). The parties hereto further agree and
acknowledge (A) that this Confirmation is (i) a “securities contract,” as
such term is defined in Section 741(7) of the Bankruptcy Code, with
respect to which each payment and delivery hereunder is a “settlement
payment,” as such term is defined in Section 741(8) of the Bankruptcy
Code, and (ii) a “swap agreement,” as such term is defined in Section
101(53B) of the Bankruptcy Code, with respect to which each payment and
delivery hereunder is a “transfer,” as such term is defined in Section
101(54) of the Bankruptcy Code, and (B) that Party A is entitled to the
protections afforded by, among other sections, Sections 362(b)(6),
362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy
Code.
|
|
|
Early
Unwind:
|
In
the event the sale of the Convertible Notes by the Issuer is not
consummated with the initial purchasers for any reason, other than as a
result of a breach by Party A, by the close of business in New York on
March 10, 2008 (or such later date as agreed upon by the parties) (March
10, 2008 or such later date as agreed upon being the “Early Unwind Date”),
the Transaction shall automatically terminate (the “Early Unwind”), on the
Early Unwind Date and (i) the Transaction and all of the respective rights
and obligations of Party A and Party B under the Transaction shall be
cancelled and terminated and (ii) each party shall be released and
discharged by the other party from and agrees not to make any claim
against the other party with respect to any obligations or liabilities of
the other party arising out of and to be performed in connection with the
Transaction either prior to or after the Early Unwind Date; provided that Party B
shall reimburse the costs and expenses (including market losses) relating
to reselling those Shares to unwind its hedge positions, and will assume,
or reimburse the cost of unwinding, any and all derivatives entered into
by Party A or one or more of its affiliates in connection with hedging the
Transaction (to the extent such costs and expenses in the aggregate do not
exceed the product of USD 3,000,000 times the Applicable
Percentage). Party A and Party B represent and acknowledge to the other
that, subject to the proviso included in the preceding sentence, upon an
Early Unwind, all obligations with respect to the Transaction shall be
deemed fully and finally
discharged.
|
|
Additional
Termination Events:
|
Notwithstanding
anything to the contrary in this Confirmation, (i) upon the occurrence of
an Early Conversion:
(A)
such Early Conversion shall constitute an Additional Termination Event
hereunder with respect to a number of Options equal to the number of the
relevant Exercised Options (the “Affected Number of Options”), in which
case (x) the sole Affected Transaction shall consist of a transaction
identical to the Transaction except that Number of Options for such
Affected Transaction shall equal the Affected Number of Options and Party
B shall be deemed the sole Affected Party and (y) the Transaction shall
remain in full force and effect, except that the Number of Options subject
to the Transaction immediately prior to the Conversion Date for such Early
Conversion shall as of such Conversion Date be reduced by the Affected
Number of Options;
(B)
notwithstanding anything to the contrary in the Agreement, Party A shall
designate an Early Termination Date in respect of such Affected
Transaction, which shall be no earlier than one Scheduled Trading Day
following the Conversion Date for the related Early Conversion;
and
(C)
for the avoidance of doubt, in determining the amount payable in respect
of such Affected Transaction pursuant to Section 6 of the Agreement, the
Calculation Agent shall assume that (x) the relevant Early Conversion and
any adjustments, agreements, payments, deliveries or acquisitions by or on
behalf of Party B leading thereto had not occurred, (y) no adjustments to
the Conversion Rate have occurred pursuant to Section 10.04(b) or Section
10.05(i) of the Indenture and (z) the corresponding Convertible Notes
remain outstanding, and
(ii)
if there has occurred an acceleration of the Convertible Notes after an
event of default with respect to Party B under the terms of the
Convertible Notes as set forth in Section 6.02 of the
Indenture, then such acceleration shall constitute an Additional
Termination Event applicable to the Transaction and, with respect to such
event of default (A) Party B shall be deemed to be the sole Affected Party
and the Transaction shall be the sole Affected Transaction and (B) Party A
shall be the party entitled to designate an Early Termination Date
pursuant to Section 6(b) of the
Agreement.
|
|
Right
to Extend:
|
Party
A may extend, for as long as it is reasonably necessary, any Averaging
Date, the Expiration Date, the Settlement Date or any other date of
delivery by Party A, with respect to some or all of the Options hereunder,
if Party A determines, in its commercially reasonable
discretion based on the advice of nationally recognized outside
counsel, that such extension is reasonably necessary or appropriate to
preserve Party A’s hedging or hedge unwind activity hereunder in light of
existing liquidity conditions or to enable Party A to effect purchases or
sales of Shares in connection with its hedging or settlement activity
hereunder in a manner that would, if Party A were Party B or an affiliated
purchaser of Party B, be in compliance with applicable legal and
regulatory or self-regulatory requirements or with related policies or
procedures applicable to Party A.
|
|
|
Registration
of Hedge Shares:
|
Party
B hereby agrees that if Party A determines, in its reasonable judgment
based on the advice of nationally recognized outside counsel, that the
Shares (the “Hedge Shares”) acquired by Party A for the purpose of hedging
its obligations pursuant to the Transaction cannot be sold in the U.S.
public market by Party A without registration under the Securities Act,
Party B shall, at Party B’s election: (i) in order to allow Party A to
sell the Hedge Shares in a registered offering, make available to Party A
an effective registration statement under the Securities Act to cover the
resale of such Hedge Shares and (A) enter into an agreement, in form and
substance satisfactory to Party A, substantially in the form of an
underwriting agreement for a registered offering, (B) provide accountant’s
“comfort” letters in customary form for registered offerings of equity
securities, (C) provide disclosure opinions of nationally recognized
outside counsel to Party B reasonably acceptable to Party A, (D) provide
other customary opinions, certificates and closing documents customary in
form for registered offerings of equity securities and (E) afford Party A
a reasonable opportunity to conduct a “due diligence” investigation with
respect to Party B customary in scope for underwritten offerings of equity
securities (provided,
however, that if Party A, in its sole reasonable discretion, is not
satisfied with access to due diligence materials, the results of its due
diligence investigation, or the procedures and documentation for the
registered offering referred to above, then clause (ii) or clause (iii) of
this paragraph shall apply at the election of Party B); (ii) in order to
allow Party A to sell the Hedge Shares in a private placement, enter into
a private placement agreement substantially similar to private placement
purchase agreements customary for private placements of equity securities,
in form and substance satisfactory to Party A, including customary
representations, covenants, blue sky and other governmental filings and/or
registrations, indemnities to Party A, due diligence rights (for Party A
or any designated buyer of the Hedge Shares from Party A), opinions and
certificates and such other documentation as is customary for private
placements agreements, all reasonably acceptable to Party A (in which
case, the Calculation Agent shall make any adjustments to the terms of the
Transaction that are necessary, in its reasonable judgment, to compensate
Party A for any discount from the public market price of the Shares
incurred on the sale of Hedge Shares in a private placement); or (iii)
purchase the Hedge Shares from Party A at the VWAP Price on such Exchange
Business Days, and in the amounts, as requested by Party
A.
|
|
Repurchase
notices:
|
Party
B shall, no later than ten Scheduled Trading Days prior to the day on
which Party B effects any repurchase of Shares, give Party A a written
notice of such repurchase (a “Repurchase Notice”) on such day if following
such repurchase, the Options Equity Percentage as determined on such day
is (i) greater than 8.0% and (ii) greater by 0.5% than the Options Equity
Percentage included in the immediately preceding Repurchase Notice (or, in
the case of the first such Repurchase Notice, greater than the Options
Equity Percentage as of the date hereof). The “Options Equity
Percentage” as of any day is the fraction (A) the numerator of which is
the Number of Shares and (B) the denominator of which is the number of
Shares outstanding on such day. Party B agrees to indemnify and
hold harmless Party A and its affiliates and their respective officers,
directors, employees, affiliates, advisors, agents and controlling persons
(each, an “Indemnified Person”) from and against any and all losses
(including losses relating to Party A's hedging activities as a
consequence of becoming, or of the risk of becoming, a Section 16
“insider”, including without limitation, any forbearance from hedging
activities or cessation of hedging activities and any losses in connection
therewith with respect to the Transaction), claims, damages, judgments,
liabilities and expenses (including reasonable attorney’s fees), joint or
several, which an Indemnified Person may become subject to, as a result of
Party B's failure to provide Party A with a Repurchase Notice on the day
and in the manner specified in this paragraph, and to reimburse, within 30
days, upon written request, each of such Indemnified Persons for any
reasonable legal or other expenses incurred in connection with
investigating, preparing for, providing testimony or other evidence in
connection with or defending any of the foregoing. If any suit,
action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against the
Indemnified Person,
|
|
Repurchase
notices:
|
such
Indemnified Person shall promptly notify Party B in writing, and Party B,
upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person
and any others Party B may designate in such proceeding and shall pay the
fees and expenses of such counsel related to such
proceeding. Party B shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, Party B
agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Party B
shall not, without the prior written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject
matter of such proceeding on terms reasonably satisfactory to such
Indemnified Person. If the indemnification provided for in this
paragraph is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then Party B, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person
as a result of such losses, claims, damages or liabilities. The
remedies provided for in this paragraph are not exclusive and shall not
limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity. The indemnity and
contribution agreements contained in this paragraph shall remain operative
and in full force and effect regardless of the termination of the
Transaction.
|
|
Restrictions
on Repurchases:
|
On
any Averaging Date, neither Party B nor any “affiliate” or “affiliated
purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule
10b-18”)) shall directly or indirectly (including, without limitation, by
means of any cash-settled or other derivative instrument) purchase, offer
to purchase, place any bid or limit order that would effect a purchase of,
or commence any tender offer relating to, any Shares (or an equivalent
interest, including a unit of beneficial interest in a trust or limited
partnership or a depository share) or any security convertible into or
exchangeable or exercisable for Shares.
|
|
|
Restrictions
on Certain Distributions:
|
During
any Averaging Period, the Shares or securities that are convertible into,
or exchangeable or exercisable for Shares shall not be subject to a
“restricted period” (as such term is defined in Regulation M) and Party A
shall not engage in any “distribution” (as such term is defined in
Regulation M) until the sixth Exchange Business Day immediately following
the Averaging Period.
|
|
|
Payments
on Early Termination:
|
Party
A and Party B agree that for the Transaction, for the purposes of Section
6(e) of the Agreement, Loss and the Second Method will
apply.
|
|
|
Governing
Law:
|
The
laws of the State of New York (without reference to choice of law doctrine
other than Section 5-1401 of the New York General Obligations
Law).
|
|
|
Termination
Currency:
|
USD
|
|
|
Office:
|
For
the purposes of the Transaction, Party A is not a Multibranch Party, and
Party B is not a Multibranch Party.
|
|
Calculation
Agent:
|
LBI;
provided that,
upon written request by Party B, the Calculation Agent shall provide in
writing in reasonable detail evidence and explanation of any calculation
or determination it made in respect of the Transaction, including a
description of the methodology and data applied in making any adjustment
to any terms of the Transaction, in each case within five Exchange Trading
Days of receipt by Party A of such written request by Party B; provided further that
(i) if the Calculation Agent fails to provide such evidence or calculation
within such required time period and such failure resulted from
administrative or clerical error, such failure shall not constitute an
Event of Default with respect to the Calculation Agent if the Calculation
Agent provides such evidence or calculation within three Exchange Business
Days of being made aware of such failure and (ii) in providing such
evidence and explanation, in no event shall the Calculation Agent be
obligated to disclose any trading information proprietary to Party A or
its affiliates or any information which Party A or its affiliate is
required by contract or law to hold confidential.
|
|
|
WAIVER
OF JURY TRIAL:
|
EACH
PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING RELATING TO THE TRANSACTION. EACH PARTY (I)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF SUCH A SUIT, ACTION OR PROCEEDING, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HAVE
BEEN INDUCED TO ENTER INTO THE TRANSACTION, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS PROVIDED
HEREIN.
|
|
|
Tax
Disclosure:
|
Effective
from the date of commencement of discussions concerning the Transaction,
Party B and each of its employees, representatives, or other agents may
disclose to any and all persons, without limitation of any kind, the tax
treatment and tax structure of the transaction and all materials of any
kind (including opinions or other tax analyses) that are provided to Party
B relating to such tax treatment and tax
structure.
|
|
Yours
sincerely,
|
Accepted
and agreed to:
|
|
Lehman
Brothers OTC Derivatives Inc.
|
Central
European Media Enterprises Ltd
|
|
By: /s/ Locke R.
McMurray
Name:
Locke R. McMurray
Title:
Managing Director
|
By: /s/ Michael
Garin
Name:
Michael Garin
Title:
Chief Executive Officer
|
|
LEHMAN
BROTHERS HOLDINGS INC.
|
|||
|
By:
|
_____________________________ | ||
|
Name:
|
|||
|
Title:
|
|||
|
Date:
|
|||
| This ‘10-Q’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| 3/15/13 | ||||
| 12/15/12 | ||||
| Filed on: | 4/30/08 | 8-K | ||
| For Period End: | 3/31/08 | |||
| 3/10/08 | 8-K | |||
| 3/4/08 | 8-K | |||
| List all Filings | ||||