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As Of Filer Filing For·On·As Docs:Size Issuer Agent 10/29/08 Central European Media Enter… Ltd 10-Q 9/30/08 7:4.8M Broadridge Fin’l So… Inc |
Document/Exhibit Description Pages Size 1: 10-Q Central European Media 10-Q 9-30-2008 HTML 1.75M 3: EX-1.10 Exhibit 10.10 HTML 687K 4: EX-10.11 Material Contract HTML 276K 2: EX-10.9 Material Contract HTML 75K 5: EX-31.01 Certification -- Sarbanes-Oxley Act - Sect. 302 HTML 12K 6: EX-31.02 Certification -- Sarbanes-Oxley Act - Sect. 302 HTML 13K 7: EX-32.01 Certification -- Sarbanes-Oxley Act - Sect. 906 HTML 11K
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1.
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Definitions
and Interpretation
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2
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2.
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Transaction
and Determination of Purchase Price
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13
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3.
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Conditions
to Obligations at Closings
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14
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4.
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Closing
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18
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|
5.
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Obligations
Prior to Closing
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23
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|
6.
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Representations
and Warranties
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26
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7.
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Retention
amounts
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46
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|
8.
|
Undertakings
and post closing covenant
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46
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9.
|
Termination
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47
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|
10.
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Indemnity
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47
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11.
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Limitations
on Liability
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50
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12.
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Default
Interest
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50
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13.
|
Notices
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50
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14.
|
Entire
Agreement
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51
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15.
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Third
Party Rights
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52
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16.
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Amendments
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52
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17.
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Costs
and Expenses
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52
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18.
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Assignment
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52
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19.
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Confidentiality
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53
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20.
|
Severability
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53
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|
21.
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Further
Assurance
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53
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22.
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Counterparts
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54
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23.
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Governing
Law and Jurisdiction
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54
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24.
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Dispute
Resolution
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54
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SCHEDULE
1
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BASIC
INFORMATION ABOUT TOP TONE MEDIA AND ZOPAL
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58
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SCHEDULE
2
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SHAREHOLDERS
AGREEMENT
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61
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SCHEDULE
3
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AGREEMENT
OR DETERMINATION OF ADJUSTMENT STATEMENTS
|
62
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SCHEDULE
4
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BASIS
OF PREPARATION OF ADJUSTMENT STATEMENTS
|
64
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SCHEDULE
5
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ADJUSTMENT
TO CLOSING PAYMENTS
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66
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SCHEDULE
6
|
FORM
OF CLOSING CERTIFICATES
|
68
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SCHEDULE
7
|
LIST
OF DIRECTORS AND STATUTORY EXECUTIVES
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71
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SCHEDULE
8
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LIST
OF ASSETS AND CONTRACTS TRANSFERRED
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72
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SCHEDULE
9
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TV2
GROUP LICENSES
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75
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SCHEDULE
10
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LIST
OF RELATED PARTY AGREEMENTS
|
77
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SCHEDULE
11
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LIST
OF TERMINATED AGREEMENTS
|
79
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SCHEDULE
12
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FORMAT
OF THE CALCULATION OF THE ESTIMATED TV2/LGC WORKING CAPITAL AMOUNT AND THE
TV2/LGC CLOSING WORKING CAPITAL AMOUNT
|
80
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(1)
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CME MEDIA ENTERPRISES B.V.,
a company organized under the laws of the Netherlands, and having
its seat at Dam 5b, JS 1012 Amsterdam, the Netherlands ("CME
ME"); and
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(2)
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TOP TONE MEDIA HOLDINGS
LIMITED, a BVI Business company organized under the laws of the
British Virgin Islands with registered number 1381053 and having its
registered office at 3rd
Floor, Omar Hodge Building, Wickhams Cay I, P.O. Box 362, Road Town,
Tortola, British Virgin Islands (the "Seller").
|
|
(A)
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The
Seller owns 2790 shares of Top Tone Media S.A. (which represents 90% of
its issued share capital), a public limited liability company (société
anonyme) organized and existing under the laws of the Grand-Duchy of
Luxembourg registered with the Luxembourg Register of Commerce and
Companies under number B 124257 and having its registered address at
L-1118, rue Aldringen 19, Luxembourg ("Top Tone Media"); Top
Tone Media owns the entire issued share capital of TV2 EOOD, a limited
liability company organized and existing under the laws of the Republic of
Bulgaria with registration number 121853910 and having its registered
address at 2 Tsanko Tserkovski Str., Lozenets Region, 1407 Sofia, Republic
of Bulgaria ("TV2"); and TV2 owns the
entire issued share capital of Top Tone Media Bulgaria EOOD, a limited
liability company organized and existing under the laws of the Republic of
Bulgaria with registration number 175413380 and having its registered
address at 17 Voyvodina Mogila Str., Ovcha Kupel Region, Sofia, Republic
of Bulgaria ("Top Tone
BG").
|
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(B)
|
The
Seller owns 99 shares of Zopal S.A. (which represents 99% of its issued
share capital), a public limited liability company (société anonyme)
organized and existing under the laws of the Grand-Duchy of Luxembourg
registered with the Luxembourg Register of Commerce and Companies under
number B 139431 and having its registered address at L-1118, rue Aldringen
19, Luxembourg ("Zopal"); Zopal owns the
entire issued share capital of LG Consult EOOD, a limited liability
company organized and existing under the laws of the Republic of Bulgaria
with registration number 12574/2006 and having its registered address at
66 Belomorski Prohod Str., Block 2, 1st
Floor, App 2, Lozenets Region, Sofia, Republic of Bulgaria ("LGC"); and LGC owns
88.7% of the share capital of Ring-SV AD, a joint stock company organized
and existing under the laws of the Republic of Bulgaria with registration
number 7774/1997 and having its registered address at 27 Tsarigradsko
Shosse Blvd., Sredets Region, Sofia, Republic of Bulgaria ("Ring
TV").
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(C)
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All
of the assets, contracts, licences (including the TV2 Group Licences (as
defined below)) and other arrangements necessary for the carrying on of
the TV2 Group Business (as defined below) that are held or conducted by
Technosteel (as defined below), Torn M (as defined below), Inter-mashineks
(as defined below) and Max Channel (as defined below) listed in Schedule 8
have been transferred to Top Tone BG (in respect of TV2 Business (as
defined below)) or LGC (in respect of LGC Business (as defined below))
from the relevant entities on or prior to the Execution Date (as defined
below).
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(D)
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The
Seller wishes to sell and CME ME wishes to acquire the TV2 Group Business
in consideration of the Purchase Price (as defined below), subject to the
terms and conditions contained
herein.
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1.1
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Terms
not otherwise defined herein shall, unless the context requires otherwise,
bear the meanings ascribed thereto in the Shareholders Agreement;
and
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"Adjustment
Statement"
|
means
the First Adjustment Statement or the Second Adjustment Statement, as the
case may be;
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"Advertising
Agreement"
|
means
the cooperation agreement relating to the sale of commercial inventory
among TV2, Ring TV and "Piero97 MA" AD in the Agreed
Form;
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"Agreed
Form"
|
means,
in relation to a document, the form of that document which has been
initialled for the purposes of identification only by CME ME and the
Seller with such alterations as may be agreed from time to time between
the Parties for any reason, including to take account of any changes
between the Execution Date and the First Closing Date or the Second
Closing Date as the case may be;
|
|
"Amended Top
Tone Media
Articles"
|
means
the amended memorandum and articles of association of Top Tone Media in
the Agreed Form;
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"Amended Top
Tone
G Foundation
Act"
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means
the amended foundation act of Top Tone BG in the Agreed
Form;
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"Amended
Zopal
Articles"
|
means
the amended memorandum and articles of association of Zopal in the Agreed
Form;
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"Business
Day"
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means
a day (other than Saturday or Sunday) on which commercial banks are open
for general business in Sofia, New York and London (other than solely for
services via the internet);
|
|
"Central
Special
Pledges
Registry"
|
means
the Central Special Pledges Registry with the Ministry of Justice of the
Republic of Bulgaria established pursuant to the Law on Registered Pledges
published in the State Gazette issue No. 100 of November 22, 1996 as
subsequently amended and
supplemented;
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"Claim"
|
means
any claims, rights, actions or proceedings of any nature, contingent or
actual, known or unknown, including any appeals in such proceedings,
whether asserted or not, which a person has, could have had, or in the
future could have against any person or any of its subsidiaries and
Affiliates or current or former shareholders, relating in any way to the
assets, ownership structure or other affairs of such person or any of its
subsidiaries or current or former shareholders and
Affiliates;
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"Closing"
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means
the completion of the sale and purchase of the TV2 Group Business as
described in Clause 4;
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"Closing
Indebtedness"
|
means
the TV2 Closing Indebtedness or the LGC Closing Indebtedness as the case
may be;
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"Closing
Statement"
|
means
the First Closing Statement or the Second Closing Statement as the case
may be;
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"Closing
Working
Capital
Amount"
|
means
the TV2 Closing Working Capital Amount or the LGC Closing Working Capital
Amount as the case may be;
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"Commercial
Registry"
|
means
the Commercial Registry with the Registration Agency of the Republic of
Bulgaria, established pursuant to the Law on the Commercial Registry
published in the State Gazette issue No. 34 of April 25, 2006 as
subsequently amended and
supplemented;
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"Control"
|
means
the power to direct or cause the direction of the management or policy of
any person, directly or indirectly, through family relationship (if a
natural person), the holding of securities or other participation
interests, by virtue of an agreement, arrangement or understanding or on
other grounds, and "Controlling" and "Controlled" shall have
the correlative meanings proceeding from this
term.
|
|
"Data
Protection
Legislation"
|
means
all laws applicable in Luxembourg concerning the protection and/or
processing of personal data;
|
|
"Draft
Adjustment
Statements"
|
means
the Draft First Adjustment Statement or the Draft Second Adjustment
Statement as the case may be;
|
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"Encumbrances"
|
means
any claim, charge, mortgage, security, lien, option, equity, power of
sale, hypothecation or other third party right, retention of title, right
of pre-emption, right of first refusal or security interest of any
kind;
|
|
|
"Equip"
|
means
Equip Limited, a BVI Business company organized under the laws of the
British Virgin Islands with registered number 1415526 and having its
registered office at Trident Chambers, P.O. Box 146, Road Town, Tortola,
British Virgin Islands, which owns 309 shares in Top Tone Media
(representing approximately 10% of its issued share
capital);
|
|
"Estimated
LGC
Indebtedness"
|
means
the amount estimated in good faith and certified by the Seller in the
Second Closing Statement as being the amount of Indebtedness of LGC and
its subsidiaries as at the Second Closing
Date;
|
|
"Estimated
LGC
Working
Capital
Amount"
|
means
the amount estimated in good faith in the format set forth in Schedule 12
hereto and certified by the Seller in the Second Closing Statement as
being the amount of working capital of the LGC Business as at the Second
Closing Date;
|
|
"Estimated
LGC
Working
Capital
Deficit
Amount"
|
means
the Target LGC Working Capital Amount minus the Estimated LGC Working
Capital Amount;
|
|
"Estimated
TV2
Indebtedness"
|
means
the amount estimated in good faith and certified by the Seller in the
First Closing Statement as being the amount of Indebtedness of TV2 and its
subsidiaries as at the First Closing
Date;
|
|
"Estimated
TV2
Working
Capital
Amount"
|
means
the amount estimated in good faith in the format set forth in Schedule 12
hereto and certified by the Seller in the First Closing Statement as being
the amount of working capital of the TV2 Business as at the First Closing
Date;
|
|
"Estimated
TV2
Working Capital
Deficit
Amount"
|
means
the Target TV2 Working Capital Amount minus the Estimated TV2 Working
Capital Amount;
|
|
"First
Adjustment
Statement"
|
means
the statement setting out the TV2 Closing Working Capital Amount and TV2
Closing Indebtedness as agreed or determined in accordance with Schedule
3;
|
|
"First
Closing"
|
means
the completion of the sale and purchase of the Top Tone Media Shares in
accordance with Clauses 3 and 4;
|
|
"First
Closing
Statement"
|
means
the statement prepared by the Seller setting out the Estimated TV2 Working
Capital Amount, the Estimated TV2 Working Capital Deficit Amount and the
Estimated TV2 Indebtedness;
|
|
"Indebtedness"
|
means
(i) any obligation (whether incurred as principal or surety) for the
payment or the repayment of money, whether present or future, actual or
contingent, (including any bank overdraft balances, notes, loan stock,
debentures, bonds, capital leases, guarantees, credit lines, letters of
credit, bankers' acceptances, outstanding amounts raised by acceptances
under an acceptance credit or bills facility opened by a bank or
acceptance house, commercial paper or other debt instruments, any
overdraft, interest or accrued discount on the foregoing items and also
any interim dividend or distribution which has been declared but not paid
by the relevant person and other instruments evidencing indebtedness) of
the relevant member of the TV2 Group Business, (ii) any amount payable by
the relevant member of the TV2 Group Business in respect of the transfer
of any asset set forth in Schedule 8, and (iii) any financing lease (and
shall, for the avoidance of doubt, include any item identified as
"Indebtedness" in Schedule 12), but excluding other ordinary trade credit
and acceptances of trade bills in respect of purchases in the ordinary
course of trading;
|
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"Inter-mashineks"
|
means
Inter-mashineks OOD, a limited liability company organized under the laws
of the Republic of Bulgaria with registration number 121072032 and its
registered address at 40 Alexander Stamboliiski Blv., Vazrazhdane Region,
Sofia, Republic of Bulgaria;
|
|
"LGC
Accounts"
|
means
the unaudited financial statements of LGC and its subsidiaries for the
financial period ended December 31, 2007 and the Accounts
Date;
|
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"LGC
Business"
|
means
the broadcasting operations of Ring TV, Max TV, Radio Mila (as such
operations may be rebranded from time to time) and such other broadcasters
and related businesses owned or operated by LGC from time to
time;
|
|
"LGC Closing
Indebtedness"
|
means
the amount of the Indebtedness of LGC and its subsidiaries as
at the Second Closing Date, as agreed or determined in accordance
with Schedule 3 and set out in the Second Adjustment
Statement;
|
|
"LGC Closing Working
Capital Amount"
|
means
the amount of working capital of the LGC Business as at the Second Closing
Date, as agreed or determined in accordance with Schedule 3 and
set out in the Second Adjustment
Statement;
|
|
"LGC Closing
Working
Capital Deficit
Amount"
|
means
the Target LGC Working Capital Amount minus the LGC Closing Working
Capital Amount;
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"LGC
Licences"
|
means
all licenses, permits and authorisations required for lawfully carrying
out the LGC Business, including Mila Program Licenses, Max Channel
Broadcasting Licenses and Mila Broadcasting
Licenses;
|
|
"Material
Adverse
Effect"
|
means
an effect that is or is reasonably likely to be materially adverse to the
assets, business, results of operations, financial condition or prospects
of the TV2 Group Business;
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"Max
Channel"
|
means
Max Channel AD, a joint stock company organized under the laws of the
Republic of Bulgaria with registration number 9375/1995 and having its
registered address at 26 The 170th
Str., Izgrev Region, Sofia, Republic of
Bulgaria;
|
|
"Second
Adjustment
Statement"
|
means
the statement setting out the LGC Closing Working Capital Amount and the
LGC Closing Indebtedness as agreed or determined in accordance with
Schedule 3;
|
|
"Second
Closing"
|
means
the completion of the sale and purchase of the Zopal Shares in accordance
with Clauses 3 and 4;
|
|
"Second
Closing
Statement"
|
means
the statement prepared by the Seller setting out the Estimated LGC Working
Capital Amount, the Estimated LGC Working Capital Deficit Amount and the
Estimated LGC Indebtedness;
|
|
"Shareholders
Agreement"
|
means
the TV2 Shareholders Agreement among CME ME, Equip and the Seller
substantially in the form set out in Schedule
2;
|
|
"Tax" or "Taxes"
|
means
any or all taxes, however denominated, including any interest, penalties
or other additions to tax that may become payable in respect thereof,
imposed by any governmental authority or agency in any jurisdiction, which
taxes shall include, without limiting the generality of the foregoing, all
income or profits taxes, payroll and employee withholding taxes, social
and health insurance contributions, sales and use taxes, ad valorem taxes,
excise taxes, franchise taxes, business license taxes, occupation taxes,
real and personal property taxes, stamp taxes, environmental taxes,
withholding taxes, securing taxes, transfer taxes and other governmental
charges or obligations of the same or of a similar nature to any of the
foregoing which are required to be paid, withheld or collected, and shall
specifically include any mandatory payments to the Council on Electronic
Media and the Communications Regulatory
Commission;
|
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"Technosteel"
|
means
Technosteel EOOD, a limited liability company organized under the laws of
the Republic of Bulgaria with Unified Identification Code 131300840 and
its registered address at Tsar Boris III blvd., Block 137, Entrance A,
Kranso Selo Region, Sofia, Republic of
Bulgaria;
|
|
"Television
Business"
|
means
any business that is similar to the TV2 Group Business or the principal
aspects thereof, including the purchase or sale of television advertising,
the purchase or sale of programming and related rights, the production or
distribution of television programming, broadcasting of television
programs by any platform (including terrestrial broadcast, digital
terrestrial television, cablecast, DSL or other telephony network-based
delivery systems, satellite and pay-per-view), and the promotion or
management of talent and related
rights;
|
|
"Terminated
Agreements"
|
means
the agreements listed in Schedule 11 to be terminated, on terms reasonably
satisfactory to CME ME, on or prior to the First
Closing;
|
|
"Third Party
Claim"
|
means
any Claim against any Protected Party by any person other than a Party to
this Agreement;
|
|
"Top Tone
Media
Shares"
|
means
2480 issued shares (of 3100 shares representing the total issued share
capital) with a par value of EUR 10 each in the share capital of Top Tone
Media representing 80% of the issued and to be issued share capital of Top
Tone Media as at the First Closing
Date;
|
|
|
"Torn M"
|
means
Torn M EOOD, a Bulgarian sole owner limited liability company organized
under the laws of the Republic of Bulgaria registered with the Commercial
registry under Uniform Identification Code 175002557, having its
registered seat and address at 18 Pencho Slaveikov Blvd., entr. D, Sofia
1606, Krasno, Selo region, Sofia,
Bulgaria;
|
|
"Transaction
Documents"
|
means
this Agreement, the Shareholders Agreement, the Advertising Agreement and
the Consultancy Deed;
|
|
"TV2
Accounts"
|
means
the unaudited financial statements of TV2 and its subsidiaries for the
financial period ended December 31, 2007 and the Accounts
Date;
|
|
"TV2
Business"
|
means
the broadcasting operations of TV2 (as such operations may be rebranded
from time to time) and such other broadcasters and related businesses
owned or operated by TV2 and/or its subsidiaries or other
entities over which it exercises management control from time to
time;
|
|
"TV2 Closing
Indebtedness"
|
means
the amount of the Indebtedness of TV2 and its subsidiaries as at the First
Closing Date, as agreed or determined in accordance
with Schedule 3 and set out in the First Adjustment
Statement;
|
|
"TV2 Closing
Working
Capital
Amount"
|
means
the amount of working capital of the TV2 Business as at the First Closing
Date, as agreed or determined in accordance with Schedule 3 and
set out in the First Adjustment
Statement;
|
|
"TV2 Closing
Working
Capital Deficit Amount"
|
means
the Target TV2 Working Capital Amount minus the TV2 Closing Working
Capital Amount;
|
|
"TV2
Licences"
|
means
all licenses, permits and authorisations required for lawfully carrying on
the TV2 Business, including TV2 Broadcasting Licenses and the TV2 Program
License;
|
|
"US Dollars" or "US$"
|
means
the official currency for the time being of the United States of
America;
|
|
"Warranties"
|
means
the representations and warranties contained in Clause 6 and each
statement identified as a representation and warranty in any other
Transaction Document;
|
|
"Zopal
Shares"
|
means
80 issued shares (of 100 shares representing the total issued share
capital) with a par value of EUR 310 each in the share capital of Zopal
representing 80% of the issued and to be issued share capital of Zopal as
at the Second Closing Date.
|
|
|
1.2.2
|
references
to a "person"
shall be construed so as to include any physical or legal person, firm,
company or other body corporate, government, state or agency of a state,
local or municipal authority or government body or any joint venture,
association or partnership (whether or not having separate legal
personality);
|
|
|
1.2.3
|
a
reference to any law, regulation, statute or statutory provision shall be
construed as a reference to the same as it may have been, or may from time
to time be, amended, modified or
re-enacted;
|
|
|
1.2.4
|
any
reference to a "day" (including within
the phrase "Business
Day") shall mean a period of 24 hours running from midnight to
midnight (except for the days of time change lasting 25 or 23 hours which
days shall be 25 or 23 hours
respectively);
|
|
|
1.2.6
|
a
reference to any other document referred to in this Agreement is a
reference to that other document as amended, varied, novated or
supplemented (other than in breach of the provisions of this Agreement) at
any time;
|
|
|
1.2.7
|
headings,
recitals and titles are for convenience only and do not affect the
interpretation of this Agreement;
|
|
|
1.2.8
|
general
words shall not be given a restrictive meaning by reason of the fact that
they are followed by particular examples intended to be embraced by the
general words;
|
|
|
1.2.9
|
the
words "include",
"includes", "including" and "in particular" shall be
deemed in each case to be followed by the words "without limitation";
and
|
|
1.2.10
|
references
to a "Party" or
the "Parties"
shall be construed as to include each of its permitted successors and
permitted assignees.
|
|
1.3
|
The
Schedules form an integral part of this Agreement and any reference to
this Agreement shall include the
Schedules.
|
|
|
1.4.1
|
have
agreed on certain commercial and legal matters that are to be included in
the other Transaction Documents. To the extent agreed, those
matters are specified on the relevant Schedule attached to this Agreement
as of the Execution Date; and
|
|
|
1.4.2
|
intend
to negotiate in good faith and agree on the final forms of the other
Transaction Documents as soon as reasonably
possible.
|
|
2.1
|
Subject
to the terms and conditions herein, including the satisfaction of the
conditions set out in Clause 3, the Seller agrees to sell and CME ME
(relying on, amongst other things, the Warranties and undertakings in this
Agreement) agrees to purchase the Top Tone Media Shares and Zopal Shares
free from all Encumbrances and together with all rights and entitlements
now or hereafter attaching to the Sale
Shares.
|
|
2.2
|
The
aggregate consideration payable for the purchase of the Sale Shares shall
be an amount equal to US$ 172,000,000 as adjusted in accordance with
Clauses 2.3 and 2.4 (as so adjusted, the "Purchase
Price") and shall be payable by CME ME to the Seller in
the proportions and on the dates set forth in Clause
2.3.
|
|
|
2.3.1
|
the
First Closing CME ME shall pay to the Seller an amount in cash equal to
US$ 148,000,000 minus the Estimated TV2 Working Capital Deficit Amount
(which shall be expressed as a positive number in the event that the
Estimated TV2 Working Capital Amount is less than the Target TV2 Working
Capital Amount) minus the Estimated TV2 Indebtedness minus the Retention
Amount (the "First
Closing Payment"); and
|
|
|
2.3.2
|
the
Second Closing CME ME shall pay to the Seller an amount in cash equal to
US$ 24,000,000 minus the Estimated LGC Working Capital Deficit Amount
(which shall be expressed as a positive number in the event that the
Estimated LGC Working Capital Amount is less than the Target LGC Working
Capital Amount) minus the Estimated LGC Indebtedness (the "Second Closing
Payment").
|
|
|
2.4.1
|
the
First Closing Date, the First Closing Payment shall be adjusted in
accordance with Schedule 5; and
|
|
|
2.4.2
|
the
Second Closing Date, the Second Closing Payment shall be adjusted in
accordance with Schedule 5.
|
|
2.5
|
The
Closing Payments shall be made in immediately available funds to the
accounts of the Seller notified to CME ME not less than five Business Days
prior to the First Closing Date or the Second Closing Date, as the case
may be.
|
|
3.1
|
The
First Closing is conditional on the satisfaction or waiver of all of the
following on or prior to the Longstop
Date:
|
|
|
3.1.2
|
Technosteel
and Torn M shall have transferred title to all assets related to the TV2
Business identified in the invoices and acceptances and delivery protocols
and novation contracts listed in Schedule 8 to Top Tone BG, or to TV2, and
shall have released Top Tone BG and TV2, as the case may be, from any
liabilities in connection therewith (other than payment in respect
thereof), shall have assigned or novated, as the case may be, all
contracts related to the TV2 Business listed in Schedule 8 to Top Tone BG
and shall have evidenced the same in a form reasonably satisfactory to CME
ME;
|
|
|
3.1.3
|
the
Terminated Agreements listed in Section A of Schedule 11 shall have been
duly terminated by the parties thereto on terms reasonably satisfactory to
CME ME;
|
|
|
3.1.4
|
the
CEM and the CRC shall have granted permission for the transfer of the TV2
Broadcasting Licenses from Technosteel to Top Tone
BG;
|
|
|
3.1.5
|
TV2
shall have requested Unicredit BulBank (formerly known as Biochim AD) to
(i) release the special pledge over bank account receivables executed by
TV2 registered with the Central Special Pledges Registry with registration
number 2003062000490 ("TV2 Special Pledge") and
(ii) de-register the TV2 Special Pledge from the Central Special Pledges
Registry and the Seller shall have provided CME ME with a copy of such
release and an up-to-date certificate issued by the Central Special
Pledges Registry showing that no special pledge is registered against TV2
or, in the event that such release and certificate are not available, a
copy of the request and all correspondence from Unicredit BulBank
(formerly known as Biochim AD) in respect of such
request;
|
|
|
3.1.8
|
the
1 share in Top Tone Media held by Francis Nicholas Hoogewerf shall have
been duly transferred to the Seller or
Equip;
|
|
|
3.1.9
|
the
Seller shall have delivered or procured the delivery of all issued share
certificates of Top Tone Media to Top Tone Media for
cancellation;
|
|
3.1.10
|
the
accounts of Top Tone Media for the financial year ended 31 December 2007
shall have been approved in a general meeting of Top Tone Media and shall
have been filed with the Luxembourg Register of Commerce and Companies in
accordance with Luxembourg Law;
|
|
3.1.11
|
the
Seller and its Affiliates shall have performed and complied in all
material respects with all covenants and agreements required by this
Agreement or any of the other Transaction Documents to be performed or
complied with by the Seller or its Affiliates on or prior to the First
Closing Date or the Second Closing Date as the case may
be;
|
|
3.1.12
|
the
Warranties given by the Seller shall be true and accurate in all material
respects as of the relevant Closing Date, or, if not true, shall have been
remedied to the reasonable satisfaction of CME
ME;
|
|
3.1.13
|
there
shall not be any injunction, decision, order or decree of any nature of
any court or governmental entity, or any proceeding pending or threatened
that could result in such an injunction, decision, order or decree,
restraining, prohibiting or preventing any aspect of the
Transaction;
|
|
3.1.14
|
there
shall not have been any action, or any statute, law or regulation enacted,
by any governmental authority which would cause any Party to be unable to
consummate the transactions contemplated herein or make the transactions
contemplated herein illegal or prohibit, restrict or delay the
consummation of any aspect of the Transaction;
and
|
|
3.1.15
|
no
event or circumstance, individually or in the aggregate, shall have
occurred since the Execution Date that has or is reasonably likely to have
a Material Adverse Effect.
|
|
3.2
|
The
Second Closing is conditional on the satisfaction or waiver of all of the
following conditions on or prior the Longstop Date and the occurrence of
the First Closing as contemplated
hereby:
|
|
|
3.2.1
|
Inter-mashineks
and Max Channel shall have transferred title to all assets related to the
LGC Business identified in the sale and purchase agreements, invoices and
acceptances and delivery protocols listed in Schedule 8 to LGC, shall have
released LGC from any liabilities in connection therewith (other than
payment in respect thereof), shall have assigned or novated, as the case
may be, all contracts related to the LGC Business listed in Schedule 8 to
LGC and shall have certified the same in a form reasonably satisfactory to
CME ME;
|
|
|
3.2.2
|
the
CEM and the CRC shall have granted permission for the transfer of the Max
Channel Broadcasting Licenses from Max Channel to
LGC;
|
|
|
3.2.3
|
the
CEM and the CRC shall have granted permission for the transfer of the Mila
Broadcasting Licenses from Inter-mashineks to
LGC;
|
|
|
3.2.4
|
the
Terminated Agreements listed in Section B of Schedule 11 shall have been
duly terminated by the parties thereto on terms reasonably satisfactory to
CME ME;
|
|
|
3.2.5
|
Ring
TV shall have requested Raiffeisen Bank Bulgaria to release the pledge
over the shares of Ring TV ("Ring TV Share Pledge")
and the Seller shall have provided CME ME
with:
|
|
|
(ii)
|
a
protocol evidencing the return by Raiffeisen Bank Bulgaria of the pledged
interim share certificates and/or a protocol issued by the board of
directors of Ring TV evidencing that the pledged interim share
certificates have been cancelled and replaced with newly issued interim
share certificates; and
|
|
|
(iii)
|
an
up-to-date book of shareholders of Ring TV showing that the Ring TV Share
Pledge has been duly de-registered;
|
|
|
3.2.6
|
Ring
TV shall have requested Raiffeisen Bank Bulgaria to (i) release the
following special pledges, pledge and financial lease agreement and (ii)
de-register them from the Central Special Pledges
Registry:
|
|
|
(i)
|
a
special pledge over motor vehicles, office and telecom equipment
registered with the Central Special Pledges Registry initially under No
2003122301701 and subsequently under No 2004013000530 ("Ring TV Special Pledge
1");
|
|
|
(ii)
|
a
special pledge over present and future receivables and bank account
receivables registered with the Central Special Pledges Registry initially
under No 2004032301056 and subsequently under No
2004082701065 ("Ring TV Special Pledge
2"); and
|
|
|
(iii)
|
a
financial lease agreement in respect of computer and video equipment
registered with the Central Special Pledges Registry under No
2004082400287 ("Ring TV
Finance Lease");
|
|
|
3.2.7
|
the
1 share in Zopal held by Francis Nicholas Hoogewerf shall have been duly
transferred to the Seller;
|
|
|
3.2.8
|
the
Seller shall have delivered or procured the delivery of all issued share
certificates of Zopal to Zopal for
cancellation;
|
|
3.2.10
|
the
Seller and its Affiliates shall have performed and complied in all
material respects with all covenants and agreements required by this
Agreement or any of the Transaction Documents to be performed or complied
with by the Seller or its Affiliates on or prior to the First Closing Date
or the Second Closing Date as the case may
be;
|
|
3.2.11
|
the
Warranties given by the Seller shall be true and accurate in all material
respects as of the relevant Closing Date, or, if not true, shall have been
remedied to the reasonable satisfaction of CME
ME;
|
|
3.2.12
|
there
shall not be any injunction, decision, order or decree of any nature of
any court or governmental entity, or any proceeding pending or threatened
that could result in such an injunction, decision, order or decree,
restraining, prohibiting or preventing any aspect of the
Transaction;
|
|
3.2.13
|
there
shall not have been any action, or any statute, law or regulation enacted,
by any governmental authority which would cause any Party to be unable to
consummate the transactions contemplated herein or make the transactions
contemplated herein illegal or prohibit, restrict or delay the
consummation of any aspect of the Transaction;
and
|
|
3.2.14
|
no
event or circumstance, individually or in the aggregate, shall have
occurred since the Execution Date that has or is reasonably likely to have
a Material Adverse Effect.
|
|
3.3
|
CME
ME may at any time waive, in whole or in part, conditionally or
unconditionally, any condition set out in Clause 3.1 and Clause 3.2 above
by notice in writing to the Seller.
|
|
3.4
|
The
Seller shall keep CME ME fully informed and up to date with respect to its
progress toward the satisfaction of the conditions to the relevant
Closing.
|
|
3.5
|
On
the satisfaction or, if appropriate, waiver of all of the conditions set
out in Clause 3, the Parties shall agree on a time and place for the First
Closing and the Second Closing as the case may
be.
|
|
3.6
|
The
Seller shall use all reasonable endeavours to satisfy the conditions set
out in Clause 3.1 but in the event that the Seller becomes aware that it
will not be able to satisfy the conditions set out in Clause 3.1 on or
before the Longstop Date, the Seller shall promptly, and in any event not
less than 3 Business Days before the Longstop Date, give written notice to
CME ME of its inability to satisfy such
conditions.
|
|
3.7
|
If
any condition specified in Clause 3.1 is not satisfied (or has not been
waived by CME ME) on or before the Longstop Date, this Agreement shall,
unless otherwise agreed by the Parties in writing, terminate and the
provisions of Clause 9 shall apply.
|
|
4.1
|
Each
of the First Closing and the Second Closing shall take place in Sofia,
Bulgaria at the offices of Djingov, Gouginski, Kyucthukov & Velichkov,
or at such other location as agreed by the Parties following the
satisfaction or waiver of the conditions set out in Clause
3.
|
|
|
4.2.1
|
the
First Closing to occur promptly after the date on which the conditions in
Clause 3.1 have been satisfied or waived (the "First Closing Date");
and
|
|
|
4.2.2
|
the
Second Closing to occur on or after the First Closing Date promptly after
the date on which the conditions set out in Clause 3.2 have been satisfied
or waived (the "Second
Closing Date").
|
|
|
4.3.1
|
to
pay the First Closing Payment until all conditions to the First Closing
have been satisfied or waived; or
|
|
|
4.3.2
|
to
pay the Second Closing Payment until all the conditions to the Second
Closing have been satisfied or
waived.
|
|
4.4
|
The
Seller shall deliver the First Closing Statement and the Second Closing
Statement to CME ME at least 3 Business Days prior to the First Closing
and the Second Closing
respectively.
|
|
|
4.5.1
|
deliver
or shall procure the delivery to CME ME of (i) transfers in respect of the
Top Tone Media Shares duly executed and completed in favour of CME ME (ii)
any and all duly executed powers of attorney or other authorities under
which any of the transfers have been executed, and (iii) certified copies
of the minutes recording the resolution of the board of directors of the
Seller authorising the sale of the Top Tone Media Shares and the execution
of the transfers in respect of
them;
|
|
|
4.5.2
|
deliver
or shall procure the delivery to CME ME of a certified copy of the updated
shareholders register of Top Tone Media showing that CME ME has been duly
registered as the holder of the Top Tone Media Shares and either the
Seller or Equip has been duly registered as the holder of the share
formerly held by Francis Nicholas
Hoogewerf;
|
|
|
4.5.3
|
deliver
or shall procure the delivery to CME ME of a letter sent to the Top Tone
Media notifying the Luxembourg Register of Commerce and Companies of the
transfer of the Top Tone Media Shares from the Seller to CME
ME;
|
|
|
4.5.4
|
deliver
or shall procure the delivery to CME ME of a closing certificate in the
form attached hereto in Schedule 6 and, if reasonably requested by CME ME,
other confirmations of the satisfaction of the conditions set out in
Clause 3.1;
|
|
|
4.5.5
|
deliver
or shall procure the delivery to CME ME of the Advertising Agreement duly
executed by "Piero97 MA" AD, TV2 and Ring
TV;
|
|
|
4.5.6
|
deliver
or shall procure the delivery to CME ME of the sale-purchase, assignment
or novation agreements and the delivery and acceptance protocols in
respect of the transfer of all assets listed in Schedule 8 duly signed by
Technosteel or Torn M as transferor and Top Tone BG or TV2 as
transferee;
|
|
|
4.5.7
|
deliver
or shall procure the delivery to CME ME of evidence showing that the
contracts listed in Schedule 8 have duly assigned or novated from
Technosteel or Torn M to Top Tone BG on terms reasonably satisfactory to
CME ME;
|
|
|
4.5.8
|
deliver
or shall procure the delivery to CME ME of evidence showing that the
Terminated Agreements listed in Section A of Schedule 11 have been duly
terminated by the parties thereto on terms reasonably satisfactory to CME
ME;
|
|
|
4.5.9
|
deliver
or shall procure the delivery to CME ME of the Shareholders Agreement duly
executed by the Seller and Equip;
|
|
4.5.10
|
deliver
or shall procure the delivery to CME ME of the TV2 Broadcasting Licenses
reissued by CEM and CRC to Top Tone BG as
licensee;
|
|
4.5.11
|
deliver
or shall procure the delivery to CME ME of an excerpt from the Commercial
Registry (or other evidence reasonably satisfactory to CME ME) of
ownership of the shares held by Top Tone Media in TV2 and the shares held
by TV2 in Top Tone BG;
|
|
4.5.12
|
deliver
or shall procure the delivery to CME ME of written resignations of each of
the statutory executives listed in Section A of Schedule 7 and marked with
an asterisk from their respective offices and as employees to take effect
on the First Closing Date, in a form satisfactory to CME
ME;
|
|
4.5.13
|
deliver
or shall procure the delivery to CME ME of the Consultancy Deed duly
executed by the Consultant (as defined in the Consultancy
Deed);
|
|
4.5.14
|
deliver
or shall procure the delivery to CME ME of evidence reasonably
satisfactory to CME ME that the accounts of Top Tone Media for the
financial year ended 31 December 2007 have been approved in a general
meeting of Top Tone Media and has been filed with the Luxembourg Register
of Commerce and Companies in accordance with Luxembourg
Law;
|
|
4.5.15
|
deliver
or shall procure the delivery to CME ME evidence satisfactory to CME ME
that the share capital of Zopal has been fully paid
up;
|
|
4.5.16
|
procure
that a general meeting of Top Tone Media is called on the First Closing
Date at which it is resolved that Top Tone Media
shall:
|
|
|
4.6.1
|
deliver
or shall procure the delivery to CME ME of (i) transfers in respect of the
Zopal Shares duly executed and completed in favour of CME ME (ii) any and
all duly executed powers of attorney or other authorities under which any
of the transfers have been executed, and (iii) certified copies of the
minutes recording the resolution of the board of directors of
the Seller authorising the sale of the Zopal Shares and the execution of
the transfers in respect of them;
|
|
|
4.6.2
|
deliver
or shall procure the delivery to CME ME of a certified copy of the updated
shareholders register of Zopal showing that CME ME has been duly
registered as the holder of the Zopal Shares and the Seller has been duly
registered as the holder of the share formerly held by Francis Nicholas
Hoogewerf;
|
|
|
4.6.3
|
deliver
or shall procure the delivery to CME ME of a closing certificate in the
form attached hereto in Schedule 6 and, if reasonably requested by CME ME,
other confirmations of the satisfaction of the conditions set out in
Clause 3.2;
|
|
|
4.6.4
|
deliver
or shall procure the delivery to CME ME of the sale-purchase, assignment
or novation agreements and the delivery and acceptance protocols in
respect of the transfer of all assets listed in Schedule 8 duly signed by
Inter-mashineks or Max Channel as transferor and LGC as
transferee;
|
|
|
4.6.5
|
deliver
or shall procure the delivery to CME ME of evidence showing that the
contracts set out in Schedule 8 have been duly assigned or novated from
Inter-mashineks and Max Channel to LGC on terms reasonably satisfactory to
CME ME;
|
|
|
4.6.6
|
deliver
or shall procure the delivery to CME ME of evidence showing that the
Terminated Agreements listed in Section B of Schedule 11 have been duly
terminated by the parties thereto on terms reasonably satisfactory to CME
ME;
|
|
|
4.6.7
|
deliver
or shall procure the delivery to CME ME of the Max Channel Broadcasting
Licenses reissued by CEM and CRC to LGC as
licensee;
|
|
|
4.6.8
|
deliver
or shall procure the delivery to CME ME of the Mila Broadcasting Licenses
reissued by CEM and CRC to LGC as
licensee;
|
|
|
4.6.9
|
deliver
or shall procure the delivery to CME ME of an excerpt from the Commercial
Registry (or other evidence reasonably satisfactory to CME ME) of
ownership of the shares held by Zopal in
LGC;
|
|
4.6.10
|
deliver
or shall procure the delivery to CME ME of all original share certificates
free and clear of any Encumbrances representing the shares held by LGC in
Ring TV and the original book of shareholders of Ring TV evidencing the
ownership of the shares held by LGC in Ring
TV;
|
|
4.6.11
|
deliver
or shall procure the delivery to CME ME of written resignations of each of
the directors and statutory executives listed in Section B of Schedule 7
and marked with an asterisk from their respective offices and as employees
to take effect on the Second Closing Date, in a form satisfactory to CME
ME;
|
|
4.6.12
|
procure
that a general meeting of Zopal is called on the Second Closing Date at
which it is resolved that Zopal
shall:
|
|
4.6.14
|
procure
that a general meeting of the shareholders of Ring TV is duly called and
held at which it is resolved that Ring TV
shall:
|
|
4.6.15
|
procure
that a meeting of the newly elected supervisory board of Ring TV is held
at which the members of the management board of Ring TV designated by CME
ME are appointed;
|
|
4.6.16
|
procure
that a meeting of the newly elected management board of Ring TV is held at
which the statutory executive designated by CME ME are appointed;
and
|
|
4.6.17
|
procure
that a meeting of the newly elected supervisory board of Ring TV is held
at which the appointment of the statutory executive designated by CME ME
is approved.
|
|
|
(b)
|
deliver
or shall procure the delivery to the Seller of the Consultancy Deed duly
executed by CME ME;
|
|
|
(c)
|
deliver
or shall procure the delivery to the Seller of the Shareholders Agreement
duly executed by CME ME;
|
|
|
(d)
|
deliver
or shall procure the delivery to the Seller of a closing certificate in
the form attached hereto in Schedule 6;
and
|
|
|
(b)
|
deliver
or shall procure the delivery to the Seller of a closing certificate in
the form attached hereto in Schedule 6;
and
|
|
5.1
|
From
and including the Execution Date and up to and including the earlier of
the Second Closing Date and the Longstop Date, the Seller shall (on its
own behalf and on behalf of any
Affiliate):
|
|
|
5.1.1
|
procure
that the TV2 Group Business shall be conducted in substantially the same
manner as it is currently being conducted, as disclosed to CME
ME;
|
|
|
5.1.2
|
procure
that all assets necessary for the operation of the TV2 Group Business,
including those assets held by or in the name of Technosteel, Torn M,
Inter-mashineks or Max Channel are transferred to the TV2 Business or the
LGC Business, as applicable;
|
|
|
5.1.3
|
take
all reasonable steps to preserve and protect the assets necessary for the
operation of the TV2 Group Business, including those assets held by or in
the name of Technosteel, Torn M, Inter-mashineks or Max Channel and in
particular maintain in force all insurance policies in respect
thereof;
|
|
|
5.1.4
|
procure
that each of the companies operating the TV2 Group Business comply with
all TV2 Group Licenses, will not undertake any action that may constitute
a breach of any terms or conditions of any of the TV2 Group Licenses or
that may lead to a surrender of any of the TV2 Group Licenses or any other
approvals or permits necessary for the operation of the TV2 Group
Business;
|
|
5.1.5
|
take
all reasonable steps to preserve the validity of all intellectual property
rights owned or used by TV2 or LGC (or any of their respective
subsidiaries) in the operation of the TV2 Group
Business;
|
|
|
5.1.6
|
take
all reasonable steps to actively participate in any public discussions in
respect of the drafting of any legislation regarding the implementation of
digital terrestrial broadcasting in the Republic of Bulgaria and to pursue
any opportunity for the TV2 Group Business to obtain the authorisation to
carry out telecommunications activities via digital terrestrial
broadcasting;
|
|
|
5.1.7
|
not
dispose of, grant any options over, enter into any agreement with respect
to, or otherwise grant any Encumbrance on or over any of the share capital
of Top Tone Media, Zopal, TV2, LGC, Top Tone BG or Ring
TV;
|
|
|
5.1.8
|
provide
CME ME with full access to such information and personnel as CME ME shall
reasonably request in connection with the acquisition of the TV2 Group
Business and the transactions contemplated
hereby;
|
|
|
5.1.9
|
procure
that the companies operating the TV2 Group Business shall not do any of
the items described in Clause 5.2 below without the prior written consent
of CME ME, such consent not be unreasonably withheld or
delayed;
|
|
5.1.10
|
not
cause or do any act or thing, the commission of which would constitute a
breach of any Warranty contained herein or which would make any such
Warranty inaccurate at the First Closing Date or the Second Closing Date,
as applicable;
|
|
5.1.11
|
on
becoming aware prior to the First Closing Date or the Second Closing Date
of the occurrence of any matter, event or circumstance which would
constitute a breach of any of the Warranties hereunder or which would make
any of such Warranties inaccurate if they were repeated on the relevant
Closing Date, promptly give written notice of such matter, event or
circumstance to CME ME before such Closing Date with sufficient details to
enable CME ME to assess accurately the impact of such matter, event or
circumstance and the Seller shall use its reasonable endeavours to
promptly remedy the same; and
|
|
5.1.12
|
to
take such other actions as are required in order to consummate the
transactions contemplated hereby and to give full effect to this
Agreement.
|
|
5.2
|
The
Seller shall procure that (a) none of Top Tone Media, TV2 or Top Tone BG
during the period from and including the Execution Date up to the First
Closing Date; and (b) none of Zopal, LGC or Ring TV during the period from
and including the Execution Date up to the Second Closing Date shall,
without the prior written consent of CME ME (which consent shall not be
unreasonably withheld or delayed), and except as contemplated by this
Agreement:
|
|
|
5.2.2
|
incur
any expenditure exceeding US$50,000, or its equivalent in any other
currency, per item or US$50,000, or its equivalent in any other currency,
in aggregate per calendar month;
|
|
|
5.2.4
|
enter
into any contract or commitment with any Affiliate or any other connected
or related person outside the ordinary course of business and/or otherwise
than on arm's length terms;
|
|
|
5.2.5
|
dispose
of or grant any option or right of pre-emption in respect of any part of
their assets except in the ordinary course of
business;
|
|
|
5.2.6
|
borrow
any additional money except on existing bank facilities or make any
payments out of or drawings on their bank account(s) (except routine or
committed payments);
|
|
|
5.2.7
|
grant
any lease or third party right in respect of any of the assets owned by or
on behalf of the TV2 Group
Business;
|
|
|
5.2.8
|
enter
into any leasing, hire purchase or other agreement or arrangement for
payment on deferred terms except in the ordinary course of
business;
|
|
|
5.2.9
|
grant,
issue or redeem any mortgage, share, debenture or other security or give
any guarantee or indemnity except in the ordinary course of business in an
amount or value not exceeding US$50,000, or its equivalent in any other
currency, individually or US$50,000, or its equivalent in any other
currency, in the aggregate;
|
|
5.2.10
|
make
any material change in the terms and conditions of employment or pension
or other benefits of its employees (other then those which would be
consistent with past practices required by law, collective bargaining
agreements and those made pursuant to any annual salary review, such
review being consistent with past practices) or terminate the employment
of any of the employees (except for cause or pursuant to any Transaction
Document);
|
|
5.2.13
|
enter
into any guarantee, indemnity or other agreement to secure any obligation
of a third party or create any Encumbrance over any of its assets or
undertakings;
|
|
5.2.14
|
make
any material strategic decision with regard to changing pricing levels,
marketing position or marketing strategy;
or
|
|
5.2.15
|
save
only as may be necessary to give effect to this Agreement or to the extent
CME ME has consented or agreed, cause or do any act or thing the
commission of which would constitute a breach of any of the Warranties
herein or which would make any of such Warranties inaccurate if they were
repeated on the relevant Closing
Date.
|
|
6.1
|
CME
ME represents and warrants to the Seller and the Seller represents and
warrants to CME ME as of the Execution Date and as of the First Closing
Date and as of the Second Closing Date that each of the statements set
forth below is true, accurate and not misleading as at that
date:
|
|
|
6.1.1
|
it
is duly organized, validly existing and in good standing (if applicable)
under the laws of the jurisdiction of its incorporation. It has the full
power and authority to enter into and perform its obligations under this
Agreement and the other Transaction Documents and to consummate or cause
to be consummated the transactions contemplated hereby and
thereby;
|
|
|
6.1.2
|
the
execution, delivery and performance of this Agreement or the other
Transaction Documents to which it or one of its Affiliates is or may be a
party and the consummation of the transactions contemplated hereby or
thereby will not violate any provision of and will not result in the
breach of the terms of:
|
|
|
(a)
|
any
applicable law, rule or regulation of any court or governmental authority
applicable to it or any such Affiliate or any provision of its or their
constitutive documents; or
|
|
|
6.1.3
|
the
execution, delivery and performance of this Agreement and the other
Transaction Documents to which it or one of its Affiliates is or may be a
party and the consummation of the transactions contemplated hereby or
thereby will not require any consent of any governmental or regulatory
authority under any provision of
law.
|
|
6.2
|
The
Seller hereby represents and warrants to CME ME as of the Execution Date
and as of the First Closing Date (with respect to matters relating to Top
Tone Media or its subsidiaries or its or their businesses) and the Second
Closing Date (with respect to matters relating to Zopal or its
subsidiaries or its or their businesses)
that:
|
|
|
6.2.1
|
the
Seller has the exclusive and unrestricted right to sell the TV2 Group
Business to CME ME on the terms set out in this
Agreement;
|
|
|
6.2.2
|
the
Seller is entitled to sell and transfer to CME ME the full legal and
beneficial ownership of the Sale Shares on the terms of this
Agreement;
|
|
|
6.2.3
|
the
Sale Shares and the other elements of the TV2 Group Business are free from
all Encumbrances;
|
|
|
6.2.4
|
the
shareholders registers of Top Tone Media and Zopal are correct and have at
all times been properly kept up to date and the Seller is not aware of any
notice of any request to correct or rectify any such
register;
|
|
|
6.2.5
|
no
person is entitled to receive from Top Tone Media, Zopal or any of their
respective subsidiaries any finders fee brokerage or commission in
connection with the sale of Sale Shares under this
Agreement;
|
|
|
6.2.6
|
Top
Tone Media and Zopal have complied with the provisions of the Luxembourg
law on commercial companies and such returns particulars resolutions and
other documents required under Luxembourg law to be delivered on behalf of
Top Tone Media and Zopal to the Luxembourg Register of Commerce and
Companies or to other authorities have been properly made and delivered in
due time;
|
|
|
6.2.7
|
the
Seller, Equip, Top Tone Media, Zopal and their respective subsidiaries,
have complied with Data Protection Legislation and all regulatory
requirements in each jurisdiction in which they conduct their business,
including without limitation any anti-money laundering regulations, and no
cash or property that any of the Seller, Equip or their respective
subsidiaries, officers or directors has paid, will pay or will contribute
to the TV2 Group Business has been or shall be derived from any activity
that is deemed criminal under any applicable law and no such payment or
contribution, to the extent such payment is within the control of the
Seller, Equip or their respective subsidiaries, shall cause CME ME or its
Affiliates to be in violation of any anti-money laundering
regulations;
|
|
|
6.2.8
|
the
Top Tone Media Shares and the Zopal Shares comprise 80% of the allotted
and issued share capital of Top Tone Media and Zopal respectively and each
such share has been properly and validly allotted and issued and is fully
paid;
|
|
|
6.2.9
|
there
are no outstanding agreements, arrangements or other understandings
(whether by contract or otherwise) with any third parties granting them
the right to acquire any of the Sale Shares, or options, warrants,
commitments, rights of first refusal, conversion rights or other rights of
any kind held by or granted to anyone to acquire any participation
interests or any other interests in or assets of the TV2 Group
Business;
|
|
6.2.10
|
except
the interests disclosed in writing to CME ME on the Execution Date,
neither the Seller nor its Affiliates have any other direct or indirect
ownership interest or participation rights in or any arrangements for the
provision of services in respect of any Television Business in the
Republic of Bulgaria;
|
|
6.2.11
|
neither
the Seller nor any of its Affiliates have any direct or indirect interest
(other than the Sale Shares) in any tangible or intangible asset or
property used in the TV2 Group Business other
than:
|
|
|
(b)
|
Office
and TV Studios of “Ring SV” AD at 47 “Cherni vrah” boulevard leased from
“Geo advisers” EOOD.
|
|
Cars
|
(Registration number)
|
|
AUDI
A6
|
C
5375 XX
|
|
Volkswagen
Touareg
|
CA
5796 MM
|
|
Skoda
Fabia
|
CA
1360 MM
|
|
Skoda
Fabia
|
CA
1362 MM
|
|
Dacia
Logan
|
CA
3121 MM
|
|
Dacia
Logan
|
CA
3120 MM
|
|
Furniture
|
|
|
Director's
chair – leather
|
|
|
(a)
|
Top
Tone Media's business, Zopal's businesses, the TV2 Business and the LGC
Business have been carried on in the ordinary course and maintained as a
going concern and no event or circumstance has occurred or is likely to
occur that would constitute a Material Adverse
Effect;
|
|
|
(b)
|
none
of Top Tone Media, Zopal, TV2, Top Tone BG, LGC or Ring TV has acquired or
disposed of or agreed to acquire or dispose of any business or any
material asset other than assets acquired pursuant to those transfers and
novations in Schedule 8;
|
|
|
(c)
|
none
of Top Tone Media, Zopal, TV2, Top Tone BG, LGC or Ring TV has terminated
or introduced material changes to the terms of any material contract other
than the Terminated Agreements;
|
|
|
(d)
|
none
of Top Tone Media, Zopal, TV2, Top Tone BG, LGC or Ring TV has incurred or
agreed to incur a commitment or commitments involving material capital
expenditure; and
|
|
|
(e)
|
none
of Top Tone Media, Zopal, TV2, Top Tone BG, LGC or Ring TV has received
any claim, suit or proceedings from any governmental regulatory or
administrative authority;
|
|
6.2.13
|
this
Agreement and any schedule, annex, statement, document, certificate or
other information furnished to CME ME by or on behalf of the Seller or any
of the companies operating the TV2 Group Business in connection with this
Agreement or any of the transactions contemplated hereby are true and
complete and do not contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements contained
herein or therein, in light of the circumstances in which they are made,
not misleading and all subjective assessments have been made in good faith
after careful consideration of the information upon which such assessments
have been made;
|
|
6.2.14
|
the
assets of the TV2 Group Business constitute and on the relevant Closing
Dates will constitute all of the assets and services that are necessary to
permit the business of the TV2 Group Business to be conducted by CME ME in
substantially the manner as it has heretofore been
conducted;
|
|
6.2.15
|
all
TV2 Group Licenses have been validly issued and there is no circumstance
or fact which may lead to the suspension, cancellation or revocation of
any of the TV2 Group Licenses;
|
|
6.2.16
|
no
person is entitled to receive from Top Tone Media, Zopal or any of their
respective subsidiaries any fee, brokerage or commission in connection
with this Agreement, any other Transaction Document or the
Transaction;
|
|
6.2.17
|
no
person who has any material business dealings with the TV2 Group Business
has notified the Seller or any of its Affiliates of the termination of
such dealings and no such dealings would terminate, incur any change in
payment or other terms or any actual or contingent liability as a direct
or indirect result of the Transaction;
and
|
|
6.2.18
|
all
information given by the Seller or any of its directors, officers or
professional or financial advisers to any of the directors, officers or
professional advisers of CME ME in the course of the negotiations leading
to this Agreement is true and accurate in all material respects and is not
misleading because of any omission or ambiguity or for any other reason;
and
|
|
6.2.19
|
all
information relating to the Seller, Top Tone Media, Zopal and their
respective subsidiaries, and the TV2 Group Business which is known or
which would on reasonable enquiry be known to the Seller and which would
materially affect a buyer for value of shares of the Company has been
disclosed to CME ME in writing.
|
|
6.3
|
The
Seller hereby represents and warrants to CME ME as of the Execution Date
and as of the First Closing Date
that:
|
|
|
6.3.1
|
Top
Tone Media has full legal and beneficial ownership of the entire issued
share capital of TV2 in the amount of BGN 5,000, divided into 500 shares
of BGN 10 each and TV2 has full legal and beneficial ownership of the
entire issued share capital of Top Tone BG in the amount of BGN 5,000,
divided into 50 shares of BGN 100 each, in each case free from all
Encumbrances;
|
|
|
6.3.2
|
Top
Tone Media is a public limited liability company (société anonyme) duly
organized and existing under the laws of the Grand-Duchy of Luxembourg
registered with the Luxembourg Register of Commerce and Companies under
number B 124257 and having its registered address at L-1118, rue Aldringen
19, Luxembourg. TV2 is a limited liability company organized and existing
under the laws of the Republic of Bulgaria with registration number
121853910 and having its registered address at 2 Tsanko Tserkovski Str.,
Lozenets Region, 1407 Sofia, Republic of Bulgaria. Top Tone BG is a
limited liability company organized and existing under the laws of the
Republic of Bulgaria with registration number 175413380 and having its
registered address at 17 Voyvodina Mogila Str., Ovcha Kupel Region, Sofia,
Republic of Bulgaria;
|
|
|
6.3.3
|
the
information on Top Tone Media set out in Schedule 1 is true, complete and
not misleading in any material
respect;
|
|
|
6.3.4
|
each
of Top Tone Media, TV2 and Top Tone BG has performed its activities in
compliance with applicable law and its respective foundation act and has
duly made all necessary registrations with the Commercial
Registry;
|
|
|
6.3.5
|
none
of Top Tone Media, TV2 or Top Tone BG is insolvent or over-indebted and no
filing, application or request has been made or threatened against Top
Tone Media, TV2 or Top Tone BG in respect of (i) the commencement of any
bankruptcy, reorganization, restructuring, transformation, bankruptcy
administration, liquidation management or similar proceedings, (ii) any
merger or voluntary dissolution, or (iii) any spin off or de-merger of any
part of Top Tone Media, TV2 or Top Tone
BG;
|
|
|
6.3.6
|
Top
Tone Media, TV2 and Top Tone BG have all licenses, permits, registrations
and other approvals necessary to enable them to conduct the TV2 Business
as currently conducted, including all requisite regulatory approvals and
authorisations to carry on the business as a broadcaster and each such
license, permit, registration or other approval was when issued and
remains valid and the
information and documents submitted before the competent regulatory
authority for the purposes of granting of any such license, permit,
registration or other approval, was true and accurate in all respects, and
each such license, permit, registration or other approval is not
subject to any unusual or onerous conditions, and neither the Seller nor
any of its respective Affiliates is aware of any reason why any such
license, permit or other approval may be repealed, withdrawn, not renewed
in due course, or materially
modified;
|
|
|
6.3.7
|
Top
Tone Media, TV2 and Top Tone BG have duly filed all reports, returns and
information required by law or as a condition to their respective
licenses, permits or authorisations with the relevant authorities, and
Technosteel has duly filed all reports, returns and information required
by law or as a condition to its licenses, permits or authorisations with
the relevant authorities other than such reports, returns or information
in relation to which any failure to file would not have a Material Adverse
Effect;
|
|
|
6.3.8
|
Top
Tone Media, TV2, Top Tone BG and Technosteel have duly paid all fees in
respect of all of their licenses, permits, registrations and
authorisations required by law or as a condition of any license, permit,
registration or authorisation;
|
|
|
6.3.9
|
each
of Top Tone Media, TV2, Top Tone BG and Technosteel has been and is in
compliance with all laws and regulations (including with respect to their
respective corporate status), and the terms of each license, permit,
registration or other approval held by it and has not received any notice
which, after receipt or lapse of time or both, would constitute
non-compliance with any agreement, applicable law, regulatory rule,
license, permit or approval;
|
|
6.3.10
|
none
of Top Tone Media, TV2 or Top Tone BG has at any time engaged in any
business or owned any business or entity other than business related
directly to the TV2 Business;
|
|
6.3.11
|
the
only subsidiary of Top Tone Media is TV2 and the only subsidiary of TV2 is
Top Tone BG and neither Top Tone Media nor TV2 owns any shares,
participating interests or similar interests in any entity whatsoever
other than TV2 and Top Tone BG,
respectively;
|
|
6.3.12
|
the
telecommunications networks of Top Tone BG as a whole, as well as each of
such networks' components, are in good operating condition and repair,
free from any physical defects, including hidden defects, and their
technical conditions resulting from their normal wear conform to the
effective requirements of applicable law, and they are appropriate and
suitable for the purposes for which they are presently used in the TV2
Business;
|
|
6.3.13
|
all
of the assets, contracts, licences and other arrangements necessary for
carrying on the TV2 Group Business that are held by Technosteel or Torn M
have been transferred or assigned to Top Tone BG or TV2 on or prior to the
Execution Date and TV2 and Top Tone BG have full title to, leases for, or
other valid rights to use all assets required and used for the operation
of the TV2 Business;
|
|
6.3.15
|
all
contracts, agreements or similar arrangements (including all advertisement
and sponsorship agreements) material to the operation of the TV2 Business
to which Top Tone Media, TV2, Top Tone BG or their respective Affiliates
are a party or otherwise interested have been disclosed to CME ME, and all
such contracts, agreements and arrangements are in full force and effect
without any material breach, threatened termination or other similar
circumstance;
|
|
6.3.16
|
no
agreement or other arrangement to which Top Tone Media, TV2, Top Tone BG
or their respective Affiliates is a party is invalid and no other party to
any such agreement or arrangement has given notice of its intention to
rescind, avoid or terminate, or has sought to repudiate or disclaim that
agreement or arrangement;
|
|
6.3.17
|
each
of Top Tone Media, TV2 and Top Tone BG has broadcasted and currently
broadcasts, by means of online systems or internet, only programmes for
which it is duly licensed to carry out such type of
transmission;
|
|
6.3.18
|
each
of Top Tone Media, TV2 and Top Tone BG has, in accordance with prevailing
tax legislation and in accordance with practice and guidelines of the
relevant tax authority, (i) timely filed Tax returns that are true,
correct and complete and timely paid all Taxes that are due and payable
with respect to its operations and assets, except for Taxes that are
contested in good faith by appropriate proceedings and for which adequate
reserves have been established, and all such Tax returns have been audited
by the relevant tax authority or are closed by the applicable statute of
limitations for all taxable years, (ii) established reserves that are
adequate to cover all Tax for which Top Tone Media, TV2 and Top Tone BG
were, on the Accounts Date, or may after that date become or have become
liable on, or in respect of or by reference to any profit gains, or income
(whether deemed or actual) for any period ended on or before the Accounts
Date or in respect of any distribution or transaction made or entered into
or deemed made or entered into on or before the Accounts Date, (iii)
carried out all transactions with related persons at fair market price and
on an arm's length basis and (iv) properly recorded and kept in its
accounting records, financial statements and Tax or other official
returns, the creation and release of reserves and provisions, all
transactions with securities and derivatives and properly calculated all
material non-deductible expenses and tax-exempt income and more generally
documentation that they are legally required to
hold;
|
|
6.3.19
|
none
of Top Tone Media, TV2 or Top Tone BG (i) has any outstanding Tax or
similar fiscal liabilities, (ii) is involved in any audit, examination or
other similar proceeding with any tax authority, (iii) has received notice
that any audits, examinations or other similar proceedings have been
commenced or are pending or threatened and (iv) has had any deficiencies
for Tax proposed, asserted or assessed against them, other than any
examination made in connection with a VAT refund request made in the
ordinary course;
|
|
6.3.20
|
each
of Top Tone Media, TV2 and Top Tone BG has withheld or collected from each
payment made to each of its employees and consultants, the amount of all
taxes and social and health security contributions and other charges and
liabilities relating to employment required to be withheld or collected
therefrom and have paid the same to the proper tax
authorities;
|
|
6.3.21
|
the
TV2 Accounts (i) have been disclosed to CME ME, (ii) have been prepared in
accordance with applicable law and IFRS as applicable in the Republic of
Bulgaria, (iii) are complete, true and accurate and (iv) give a true and
fair view of the financial condition and results of operations of TV2 as
of the relevant date; and the financial statements of Top Tone BG as of
the Accounts Date (aa) have been disclosed to CME ME, (bb) have been
prepared in accordance with applicable law and IFRS as applicable in the
Republic of Bulgaria, (cc) are complete, true and accurate and (dd) give a
true and fair view of the financial condition and results of operations of
Top Tone BG as of that date;
|
|
6.3.22
|
the
TV2 Accounts make full and proper provision for (or, if appropriate,
disclose by way of notes) all liabilities (whether actual, contingent,
quantified or disputed) of TV2 as at or on the date of such accounts, and
there are no other liabilities of TV2; and Top Tone BG's accounts make
full and proper provision for (or, if appropriate, disclose by way of
notes) all liabilities (whether actual, contingent, quantified or
disputed) of Top Tone BG as at or on the date of such accounts, and there
are no other liabilities of Top Tone
BG;
|
|
6.3.23
|
none
of Top Tone Media, TV2 or Top Tone BG has breached any undertakings,
covenants or other provisions under any of the finance agreements and
arrangements (whether finance leases, operational leases, credit facility
agreements, loans or similar agreements or arrangements) to which it is a
party or by which it is bound or defaulted or cross-defaulted under any
such agreements or arrangements;
|
|
6.3.24
|
all
liabilities of Top Tone Media, TV2 or Top Tone BG payable to any
governmental authority or agency in respect of any state budget funds due
from Top Tone Media, TV2 or Top Tone BG prior to the Execution Date and/or
the First Closing Date as the case may be have been fully and timely
paid;
|
|
6.3.25
|
none
of Top Tone Media, TV2 or Top Tone BG is a guarantor and none of them have
provided any security for any indebtedness to any third
party;
|
|
6.3.26
|
there
are no material liabilities, obligations, contracts or claims in
connection with or relating to Top Tone Media, TV2, Top Tone BG or the TV2
Business that have not been disclosed to CME
ME;
|
|
6.3.27
|
there
are no material claims pending or threatened, before any court,
arbitration panel, public administrative authority, institution or any
other person against or adversely affecting Top Tone Media, TV2, Top Tone
BG or the TV2 Group Business;
|
|
6.3.28
|
all
trade marks, service marks, copyright, know-how, rights to use software
and all other intellectual property rights which are or are capable of
being used in or in relation in any way to the TV2 Business (i) are
legally and beneficially owned by Top Tone Media, TV2 or Top Tone BG or
used pursuant to a valid licence, (ii) are valid and enforceable, (iii)
are duly registered where such registration is required, (iv) are free
from all Encumbrances and (v) do not infringe the rights of any third
party and no communication has been received by Top Tone Media, TV2 or Top
Tone BG from a third party alleging that Top Tone Media, TV2 or Top Tone
BG or any of their Affiliates have violated the rights of such third
party;
|
|
6.3.29
|
TV2
has not broadcasted any foreign programs that are subject to Art. 125b of
the Bulgarian Law on Radio and
Television;
|
|
6.3.31
|
each
of Top Tone Media, TV2 and Top Tone BG has a valid right to use the
premises from which it operates pursuant to a valid and binding lease
agreement, free from all Encumbrances and each of Top Tone Media, TV2 or
Top Tone BG is in compliance with the terms of such lease agreements in
all respects and no written claim of any default thereunder has been
received by Top Tone Media, TV2 or Top Tone BG (as the case may be) which
has not been cured and consummation of the Transaction will not give rise
to any right of termination or loss or any rights of use currently enjoyed
under such lease agreements;
|
|
6.3.32
|
all
rent and other sums and charges payable under such lease agreements have
been fully and timely paid;
|
|
6.3.33
|
there
is no reason why the existing lease for the office space at 19, rue
Aldringen, L-1118 Luxembourg should not be renewed, or a new lease should
not be granted, on expiry on terms materially less favourable to Top Tone
Media;
|
|
6.3.34
|
the
execution, delivery and performance of this Agreement or the other
Transaction Documents will not result in the breach of the terms,
covenants or restrictions contained in the lease agreement relating to the
premises located at 19, rue Aldringen, L-1118
Luxembourg;
|
|
6.3.35
|
none
of Top Tone Media, TV2 or Top Tone BG possesses any environmental
authorisations, licences or permits nor are any such authorisations,
licences or permits required to carry on the TV2 Business in the ordinary
course and no proceedings has been initiated, nor are any such proceedings
pending or threatened, against Top Tone Media, TV2 or Top Tone BG in
connection with a breach of any environmental law or
regulation;
|
|
6.3.36
|
other
than the Related Party Agreements, there are no unpaid or unsatisfied
liabilities or other obligations of Top Tone Media, TV2 or Top Tone BG to,
or causes of action of any nature (vested or contingent) from or against,
the Seller or its Affiliates, and there are no unpaid or unsatisfied
liabilities or other obligations of the Seller or its Affiliates to Top
Tone Media, TV2 or Top Tone BG, and neither the Seller nor its Affiliates
have assigned or transferred or purported to assign or transfer to any
person any liabilities or other obligations of Top Tone Media, TV2 or Top
Tone BG or causes of action of any nature (vested or contingent) in
respect of the TV2 Business;
|
|
6.3.37
|
there
are no past or currently pending or threatened actions proceedings or
investigations, whether civil or criminal, against Top Tone Media, TV2,
Top Tone BG or the presently incumbent directors or managers of Top Tone
Media, TV2 or Top Tone BG or the present employees of Top Tone Media, TV2
or Top Tone BG (in connection with their employment or engagement with
such company);
|
|
6.3.38
|
the
TV2 Business has been conducted in the ordinary course and none of the
Seller, Top Tone Media, TV2, Top Tone BG or any of their respective
directors, officers, agents, employees, representatives or Affiliates has
recommended or facilitated the making of, or caused or permitted the
making of or offered, promised or authorised, in each case directly or
indirectly, any unlawful payment or payments or other inducements to any
governmental official, including any officer, director or other official
representative of an entity owned or controlled by a governmental
authority, with the intent or purpose of (i) influencing any act or
decision of such person in his official capacity; (ii) inducing such
person to do or omit to do any act in violation of the lawful duty of such
person; or (iii) inducing such person to use his influence with a
governmental authority or instrumentality thereof to affect or
influence any act or decision of such governmental authority or
instrumentality, in each case in order to assist Top Tone Media, TV2 or
Top Tone BG or any of their respective directors, officers, agents,
employees, representatives or Affiliates in obtaining or retaining
business for or with, or directing business to, Top Tone Media, TV2 or Top
Tone BG or any of their respective directors, officers, agents, employees,
representatives or Affiliates;
|
|
6.3.39
|
none
of Top Tone Media, TV2 or Top Tone BG (i) is a party to or bound by any
collective bargaining agreement, (ii) has provided any social security or
health security benefits to its respective employees other than those
required by applicable law and (iii) has established or plans to establish
any stock option, pension, retirement, death, labour accident, illness or
other benefit plans for its current or former employees, officers or their
respective dependents;
|
|
6.3.40
|
none
of the employees of Top Tone Media, TV2 or Top Tone BG have established an
employee representative body and there are no plans to establish such a
representative body and no trade or labour union is represented at Top
Tone Media, TV2 or Top Tone BG;
|
|
6.3.41
|
each
of TV2 and Top Tone BG has timely registered all individual labour
agreements to which it is a party (including any amendments or termination
thereof) with the Bulgarian National Revenues Agency in accordance with
applicable law;
|
|
6.3.42
|
the
assets transferred by Torn M and/or Technosteel to Top Tone BG and/or TV2
were not operated by employees of Torn M and/or of Technosteel, and the
transfers of those assets to Top Tone BG shall not trigger any automatic
transfer of labour agreements to Top Tone BG and/or TV2 pursuant to Art.
123 of the Bulgarian Labour Code;
|
|
6.3.43
|
each
of TV2 and Top Tone BG fully complies with the requirements of health and
safety regulations under the applicable Bulgarian law and neither TV2 nor
Top Tone BG is the subject of any proceeding in respect of or in
connection with its compliance with the foregoing, and no such proceeding
is pending or threatened against TV2 or Top Tone
BG;
|
|
6.3.44
|
neither
this Agreement nor the Transaction requires notification to or
consultation with any of the employees of Top Tone Media, TV2 or Top Tone
BG;
|
|
6.3.45
|
no
general member of Top Tone Media, TV2 or Top Tone BG or their respective
employees or consultants are entitled to receive any specific share sale
bonuses or other payments as a result of or in connection with the
consummation of this Agreement or the
Transaction;
|
|
6.3.46
|
no
employees or managers of TV2 or Top Tone BG are entitled to a notice
period longer than the notice period provided in the Bulgarian Labour Code
and no employees or managers of TV2 or Top Tone BG are entitled to any
severance on termination except as provided in the Bulgarian Labour
Code;
|
|
6.3.47
|
each
of Top Tone Media, TV2 and Top Tone BG, as applicable, has valid rights in
all intellectual property (including discovery, invention, development,
technology, software, tool, process, technique, know-how, data, plan,
specification, design, layout, program, code, document and all versions,
modifications, enhancements and derivative works thereof) relating in any
way to the operation of the TV2 Business created by any present or former
employees, officers or consultants, whether by means of direct vesting or
by assignment, that has been commissioned by any of Top Tone Media, TV2 or
Top Tone BG or otherwise developed by them in the course of their
employment or engagement and has undertaken any and all necessary acts,
filings or registrations so that any and all transferable and/or
assignable rights, title and interest in such intellectual property
(including any application therefor) are transferred and/or assigned to
each of Top Tone Media, TV2 and Top Tone BG to the fullest extent
possible;
|
|
6.3.48
|
no
claims and/or disputes are pending or threatened against Top Tone Media,
TV2 or Top Tone BG in respect of any additional compensation or
remuneration alleged to be payable to current and/or former employees of
Top Tone Media, TV2 or Top Tone BG for the creation of any intellectual
property rights by such employees during the course of their employment
with Top Tone Media, TV2 or Top Tone BG, as the case may
be;
|
|
6.3.49
|
the
books and records of the TV2 Business (including (i) books and records
relating to the purchase of materials and supplies, dealings with
customers, invoices, supplier lists, personnel records and Taxes of TV2
and Top Tone BG; (ii) the corporate records and books of TV2 and Top Tone
BG; and (iii) data stored on computers) accurately record in all material
respects all transactions of TV2, Top Tone BG and the TV2 Business and
have been maintained consistent with good business
practice;
|
|
6.3.50
|
no
papers, books, manuals, lists, correspondence and documents containing
information concerning or relating to the TV2 Business, together with all
copies thereof, have been removed or disposed of, except that the Seller
may keep copies of such materials as shall be necessary to permit it to
prepare its tax returns or to comply with any other legal
requirements;
|
|
6.3.51
|
no
powers of attorney executed by or on behalf of Top Tone Media, TV2 or Top
Tone BG are currently in force other than those powers of attorney that
are necessary for the day-to-day operation of the TV2 Business which do
not authorise the attorney to do any act which may have a Material Adverse
Effect; and
|
|
6.3.52
|
all
transmission telecommunications equipment used in TV2 Business have been
transferred and installed to sites operated by the Bulgarian
Telecommunications Company AD or other persons who hold valid construction
or installation permits in respect of the installation and operation of
such equipment at such sites as are required by the Bulgarian Law on the
Structure of the Territory and Top Tone BG is not required to obtain any
construction or installation permits in respect of the installation and
operation of such equipment pursuant to the Bulgarian Law on Structure of
the Territory.
|
|
6.4
|
The
Seller hereby represents and warrants to CME ME as of the Execution Date
and as of the Second Closing Date
that:
|
|
|
6.4.1
|
Zopal
has full legal and beneficial ownership of the entire issued share capital
of LGC in the amount of BGN 5,000, divided into 100 shares of BGN 50 each
and LGC has full legal and beneficial ownership of 3,620 common voting
registered shares of BGN 50 each in Ring TV (representing 88.7% of the
entire issued share capital of Ring TV), in each case validly and properly
issued and fully paid and free from all
Encumbrances;
|
|
|
6.4.2
|
Zopal
is a public limited liability company (société anonyme) organized and
existing under the laws of the Grand-Duchy of Luxembourg, registered with
the Luxembourg Register of Commerce and Companies under V 139431, and
having its registered address at L-1118, rue Aldringen 19, Luxembourg. LGC
is a limited liability company duly organized and validly existing in
accordance with the laws of the Republic of Bulgaria registered in the
Commercial Registry with identification number 12574/2006 and having its
registered address at 66 Belomorski Prohod Str., Block 2, 1st
Floor, App 2, Lozenets Region, Sofia, Republic of Bulgaria. Ring TV is a
joint stock company organized and existing under the laws of the Republic
of Bulgaria with registration number 7774/1997 and having its registered
address at 27 Tsarigradsko Shosse Blvd., Sredets Region, Sofia, Republic
of Bulgaria;
|
|
|
6.4.3
|
the
information on Zopal set out in Schedule 1 is true, complete and not
misleading in any material respect except that as of the Second Closing
Date, Francis Nicholas Hoogewerf will cease to hold any share in Zopal and
immediately prior to the Second Closing, the Seller will hold 100 shares
in Zopal;
|
|
|
6.4.4
|
each
of Zopal, LGC and Ring TV has performed its activities in compliance with
applicable law and its respective foundation act and has duly made all
necessary registrations with the Commercial
Registry;
|
|
|
6.4.5
|
none
of Zopal, LGC or Ring TV is insolvent or over-indebted and no filing,
application or request has been made or threatened against Zopal, LGC or
Ring TV in respect of (i) the commencement of any bankruptcy,
reorganization, restructuring, transformation, bankruptcy administration,
liquidation management or similar proceedings, (ii) any merger or
voluntary dissolution, or (iii) any spin off or de-merger of any part of
Zopal, LGC or Ring TV;
|
|
|
6.4.6
|
Zopal,
LGC and Ring TV have all licenses, permits and other approvals necessary
to enable them to conduct the LGC Business as currently conducted,
including all requisite regulatory approvals and authorizations to carry
on the business as a broadcaster and each such license, permit or other
approval was when issued and remains valid and is not subject to any
unusual or onerous conditions, and neither Seller nor any of its
respective Affiliates is aware of any reason why any such license, permit
or other approval may be withdrawn, not renewed in due course, or
materially modified;
|
|
|
6.4.7
|
Zopal,
LGC, Ring TV, Max Channel and Inter-mashineks have duly filed all reports,
returns and information required by law or as a condition to their
respective licenses, permits or authorisations with the relevant
authorities;
|
|
|
6.4.8
|
Zopal,
LGC, Ring TV, Max Channel and Inter-mashineks have duly paid all fees in
respect of all of their licenses, permits and authorisations required by
law or as a condition of any license, permit or
authorisation;
|
|
|
6.4.9
|
each
of Zopal, LGC, Ring TV, Max Channel and Inter-mashineks has been and is in
compliance with all laws and regulations (including with respect to their
respective corporate status), and the terms of each license, permit or
other approval held by it and has not received any notice which, after
receipt or lapse of time or both, would constitute non-compliance with any
agreement, applicable law, regulatory rule, license, permit or
approval;
|
|
6.4.10
|
none
of Zopal, LGC or Ring TV has at any time engaged in any business or owned
any business or entity other than business related directly to the LGC
Business;
|
|
6.4.11
|
the
only subsidiary of Zopal is LGC and the only subsidiary of LGC is Ring TV
and neither Zopal nor LGC owns any shares, participating interests or
similar interests in any entity whatsoever other than LGC and Ring TV,
respectively;
|
|
6.4.12
|
the
telecommunications networks of LGC as a whole, as well as each of such
networks' components, are in good operating condition and repair, free
from any physical defects, including hidden defects, and their technical
conditions resulting from their normal wear conforms to the effective
requirements of applicable law, and they are appropriate and suitable for
the purposes for which they are presently used in the LGC
Business;
|
|
6.4.13
|
all
of the assets, contracts, licences and other arrangement necessary for
carrying on the LGC Business that are held by Max Channel or
Inter-mashineks have been transferred or assigned to LGC on or prior to
the Execution Date and LGC and Ring TV have full title to, leases for, or
other valid rights to use all assets required and used for the operation
of the LGC Business;
|
|
6.4.15
|
all
contracts, agreements or similar agreements (including all advertisement
and sponsorship agreements) material to the operation of the LGC Business
to which Zopal, LGC, Ring TV or their respective Affiliates are a party or
otherwise interested have been disclosed to CME ME, and all such
contracts, agreements and arrangements are in full force and effect
without any material breach, threatened termination or other similar
circumstance;
|
|
6.4.16
|
no
agreement or other arrangement to which Zopal, LGC, Ring TV or their
respective Affiliates is a party is invalid and no other party to any such
agreement or arrangement has given notice of its intention to rescind,
avoid or terminate, or has sought to repudiate or disclaim that agreement
or arrangement;
|
|
6.4.17
|
each
of Zopal, LGC and Ring TV has broadcasted and currently broadcasts, by
means of online systems or internet, only programmes for which it is duly
licensed to carry out such type of
transmission;
|
|
6.4.18
|
each
of Zopal, LGC and Ring TV has, in accordance with prevailing tax
legislation and in accordance with practice and guidelines of the relevant
tax authority, (i) timely filed Tax returns that are true, correct and
complete and timely paid all Taxes that are due and payable with respect
to its operations and assets, except for Taxes that are contested in good
faith by appropriate proceedings and for which adequate reserves have been
established, and all such Tax returns have been audited by the relevant
tax authority or are closed by the applicable statute of limitations for
all taxable years, (ii) established reserves that are adequate to cover
all Tax for which Zopal, LGC and Ring TV were, on the Accounts Date, or
may after that date become or have become liable on, or in respect of or
by reference to any profit gains, or income (whether deemed or actual) for
any period ended on or before the Accounts Date or in respect of any
distribution or transaction made or entered into or deemed made or entered
into on or before the Accounts Date, (iii) carried out all transactions
with related persons at fair market price and on an arm's length basis and
(iv) properly recorded and kept in its accounting records, financial
statements and Tax or other official returns, the creation and release of
reserves and provisions, all transactions with securities and derivatives
and properly calculated all material non-deductible expenses and
tax-exempt income and more generally documentation that they are legally
required to hold;
|
|
6.4.19
|
none
of Zopal, LGC or Ring TV (i) has any outstanding Tax or similar fiscal
liabilities, (ii) is involved in any audit, examination or other similar
proceeding with any tax authority, (iii) has received notice that any
audits, examinations or other similar proceedings have been commenced or
are pending or threatened and (iv) has had any deficiencies for Tax
proposed, asserted or assessed against
them;
|
|
6.4.20
|
each
of Zopal, LGC and Ring TV has withheld or collected from each
payment made to each of its employees and consultants, the amount of all
taxes and social and health security contributions and other charges and
liabilities relating to employment required to be withheld or collected
therefrom and have paid the same to the proper tax
authorities;
|
|
6.4.21
|
the
LGC Accounts (i) have been disclosed to CME ME, (ii) have been prepared in
accordance with applicable law and IFRS as applicable in the Republic of
Bulgaria, (iii) are complete, true and accurate and (iv) give a true and
fair view of the financial condition and results of operations of LGC as
of the relevant date; and the financial statements and balance sheet of
Ring TV dated as of December 31, 2007 and the Accounts Date (aa) have been
disclosed to CME ME, (bb) have been prepared in accordance with applicable
law and IFRS as applicable in the Republic of Bulgaria, (cc) are complete,
true and accurate and (dd) give a true and fair view of the financial
condition and results of operations of Ring TV as of that
date;
|
|
6.4.22
|
the
LGC Accounts make full and proper provision for (or, if appropriate,
disclose by way of notes) all liabilities (whether actual, contingent,
quantified or disputed) of LGC as at or on the date of such accounts, and
there are no other liabilities of LGC; and Ring TV's accounts make full
and proper provision for (or, if appropriate, disclose by way of notes)
all liabilities (whether actual, contingent, quantified or disputed) of
Ring TV as at or on the date of such accounts, and there are no other
liabilities of Ring TV;
|
|
6.4.23
|
none
of Zopal, LGC or Ring TV has breached any undertakings, covenants or other
provisions under any of the finance agreements and arrangements (whether
finance leases, operational leases, credit facility agreements, loans or
similar agreements or arrangements) to which it is a party or by which it
is bound or defaulted or cross-defaulted under any such agreements or
arrangements;
|
|
6.4.24
|
all
liabilities of Zopal, LGC or Ring TV payable to any governmental authority
or agency in respect of any state budget funds due from Zopal, LGC or Ring
TV prior to the Execution Date and/or the Second Closing Date as the case
may be have been fully and timely
paid;
|
|
6.4.25
|
none
of Zopal, LGC or Ring TV is a guarantor nor have any of them provided any
security for any indebtedness of any third party except a lease agreement
with Pireaus Leasing Bulgaria EAD, registered under no. 2008062600600 with
the Central Special Pledges Registry against Ring
TV;
|
|
6.4.26
|
there
are no material liabilities, obligations, contracts of or claims in
connection with or relating to Zopal, LGC, Ring TV or the LGC Business
that have not been disclosed to CME
ME;
|
|
6.4.27
|
there
are no material claims pending or threatened, before any court,
arbitration panel, public administrative authority, institution or any
other person against or adversely affecting Zopal, LGC, Ring TV or the LGC
Business;
|
|
6.4.28
|
all
trade marks, service marks, copyright, know-how, rights to use software
and all other intellectual property rights which are or are capable of
being used in or in relation in any way to the LGC Business (i) are
legally and beneficially owned by Zopal, LGC or Ring TV or used pursuant
to a valid licence, (ii) are valid and enforceable, (iii) are duly
registered where such registration is required, (iv) are free from all
Encumbrances and (v) do not infringe the rights of any third party and no
communication has been received by Zopal, LGC or Ring TV from a third
party alleging that Zopal, LGC or Ring TV or any of their Affiliates have
violated the rights of such third
party;
|
|
6.4.29
|
LGC
has not broadcasted any foreign programs that are subject to Art. 125b of
the Bulgarian Law on Radio and
Television;
|
|
6.4.31
|
each
of Zopal, LGC and Ring TV has a valid right to use the premises from which
it operates pursuant to a valid and binding lease agreement, free from all
Encumbrances and each of Zopal, LGC and Ring TV is in compliance with the
terms of such lease agreements in all respects and no written claim of any
default thereunder has been received by Zopal, LGC or Ring TV (as the case
may be) which has not been cured and consummation of the Transaction will
not give rise to any right of termination or loss or any rights of use
currently enjoyed under such lease
agreements;
|
|
6.4.32
|
all
rent and other sums and charges payable under such lease agreements have
been fully and timely paid;
|
|
6.4.33
|
there
is no reason why the existing lease for the office space at L-1118, rue
Aldringen 19, Luxembourg should not be renewed, or a new lease should not
be granted, on expiry on terms materially less favourable to
Zopal;
|
|
6.4.34
|
the
execution, delivery and performance of this Agreement and the other
Transaction Documents will not result in the breach of the terms,
covenants or restrictions contained in the lease agreement relating to the
premises located at L-1118, rue Aldringen 19,
Luxembourg;
|
|
6.4.35
|
none
of Zopal, LGC or Ring TV possesses any environmental authorisations,
licences or permits nor are any such authorisations, licences or permits
required to carry on the LGC Business in the ordinary course and no
proceedings has been initiated, nor are any such proceedings pending or
threatened, against Zopal, LGC or Ring TV in connection with a breach of
any environmental law or
regulation;
|
|
6.4.36
|
other
than the Related Party Agreements, there are no unpaid or unsatisfied
liabilities or other obligations of Zopal, LGC or Ring TV to, or causes of
action of any nature (vested or contingent) from or against, the Seller or
its Affiliates, and there are no unpaid or unsatisfied liabilities or
other obligations of any of the Seller or its Affiliates to Zopal, LGC or
Ring TV, and neither the Seller nor its Affiliates have assigned or
transferred or purported to assign or transfer to any person any
liabilities or other obligations of Zopal, LGC or Ring TV or causes of
action of any nature (vested or contingent) in respect of the LGC
Business;
|
|
6.4.37
|
there
are no past or currently pending or threatened actions proceedings or
investigations, whether civil or criminal, against Zopal, LGC, Ring TV or
the presently incumbent directors or managers of Zopal, LGC or Ring TV or
the present employees of Zopal, LGC or Ring TV (in connection with their
employment or engagement with such
company);
|
|
6.4.38
|
the
LGC Business has been conducted in the ordinary course and none of the
Seller, LGC, Ring TV or any of their respective directors, officers,
agents, employees, representatives or Affiliates has recommended or
facilitated the making of, or caused or permitted the making of or
offered, promised or authorised, in each case directly or indirectly, any
unlawful payment or payments or other inducements to any governmental
official, including any officer, director or other official representative
of an entity owned or controlled by a governmental authority, with the
intent or purpose of (i) influencing any act or decision of such person in
his official capacity; (ii) inducing such person to do or omit to do any
act in violation of the lawful duty of such person; or (iii) inducing such
person to use his influence with a governmental authority or
instrumentality thereof to affect or influence any act or
decision of such governmental authority or instrumentality, in each case
in order to assist LGC or Ring TV or any of their respective directors,
officers, agents, employees, representatives or Affiliates in obtaining or
retaining business for or with, or directing business to, LGC or Ring TV
or any of their respective directors, officers, agents, employees,
representatives or Affiliates;
|
|
6.4.39
|
none
of Zopal, LGC nor Ring TV (i) is a party to or bound by any collective
bargaining agreement, (ii) has provided any social security or health
security benefits to its respective employees other than those required by
applicable law and (iii) has established or plans to establish any stock
option, pension, retirement, death, labour accident, illness or other
benefit plans for its current or former employees, officers or their
respective dependents;
|
|
6.4.40
|
none
of the employees of Zopal, LGC or Ring TV have established an employee
representative body and there are no plans to establish such a
representative body and no trade or labour union is represented at either
LGC or Ring TV;
|
|
6.4.41
|
each
of LGC and Ring TV has timely registered all individual labour agreements
to which it is a party (including any amendments or termination thereof)
with the Bulgarian National Revenues Agency in accordance with applicable
law;
|
|
6.4.42
|
the
assets transferred by Inter-mashineks and/or Max Channel to LGC were not
operated by employees of Inter-mashineks and/or Max Channel, and the
transfers of those assets to LGC shall not trigger any automatic transfer
of labour agreements to LGC pursuant to Art. 123 of the Bulgarian Labour
Code;
|
|
6.4.43
|
each
of LGC and Ring TV fully complies with the requirements of health and
safety regulations under the applicable Bulgarian law and neither LGC nor
Ring TV is the subject of any proceeding in respect of or in connection
with its compliance with the foregoing, and no such proceeding is pending
or threatened against LGC and Ring
TV;
|
|
6.4.44
|
neither
this Agreement nor the Transaction requires notification to or
consultation with any of the employees or Zopal, LGC or Ring
TV;
|
|
6.4.45
|
no
general member of Zopal, LGC or Ring TV or their respective employees or
consultants is entitled to receive any specific share sale bonuses or
other payments as a result of or in connection with the consummation of
this Agreement or the Transaction;
|
|
6.4.46
|
no
employees or managers of LGC or Ring TV are entitled to a notice period
longer than the notice period provided in the Bulgarian Labour Code and no
employees or managers of LGC or Ring TV are entitled to any severance on
termination except as provided in the Bulgarian Labour
Code;
|
|
6.4.47
|
each
of Zopal, LGC and Ring TV, as applicable, has valid rights in all
intellectual property (including discovery, invention, development,
technology, software, tool, process, technique, know-how, data, plan,
specification, design, layout, program, code, document and all versions,
modifications, enhancements and derivative works thereof) relating in any
way to the operation of the LGC Business created by any present or former
employees, officers or consultants, whether by means of direct vesting or
by assignment, that has been commissioned by any of Zopal, LGC or Ring TV
or otherwise developed by them in the course of their employment or
engagement and has undertaken any and all necessary acts, filings or
registrations so that any and all transferable and/or assignable rights,
title and interest in such intellectual property (including any
application therefor) are transferred and/or assigned to each of Zopal,
LGC and Ring TV to the fullest extent
possible;
|
|
6.4.48
|
no
claims and/or disputes are pending or threatened against Zopal, LGC or
Ring TV in respect of any additional compensation or remuneration alleged
to be payable to current and/or former employees of Zopal, LGC or Ring TV
for the creation of any intellectual property rights by such employees
during the course of their employment with either LGC or Ring TV, as the
case may be;
|
|
6.4.49
|
the
books and records of the LGC Business (including (i) books and records
relating to the purchase of materials and supplies, dealings with
customers, invoices, supplier lists, personnel records and Taxes of LGC
and Ring TV; (ii) the corporate records and books of LGC and Ring TV; and
(iii) data stored on computers) accurately record in all material respects
all transactions of LGC and Ring TV and the LGC Business and have been
maintained consistent with good business
practice;
|
|
6.4.50
|
no
papers, books, manuals, lists, correspondence and documents containing
information concerning or relating to the LGC Business, together with all
copies thereof, have been removed or disposed of, except that the Seller
may keep copies of such materials as shall be necessary to permit it to
prepare its tax returns or to comply with any other legal
requirements;
|
|
6.4.51
|
no
powers of attorney executed by or on behalf of Zopal, LGC or Ring TV are
currently in force other than those powers of attorney that are necessary
for the day-to-day operation of the LGC Business which do not authorise
the attorney to do any act which may have a Material Adverse
Effect;
|
|
6.4.52
|
LGC
has duly paid the purchase price of Euro 600,000 due under the preliminary
agreement dated 11 April 2007 for the sale and purchase of the Mila
Broadcasting Licenses and the Mila Program Licenses from Inter-mashineks,
as amended by the supplementary agreement No 1 of 12 April 2007 and the
supplementary agreement of 17 April 2007, and the promissory note issued
by LGC in favour of Inter-mashineks for the amount of Euro 400,000 has
been duly cancelled and delivered to LGC by Inter-mashineks;
and
|
|
6.4.53
|
all
transmission telecommunications equipment used in LGC Business have been
transferred and installed to sites operated by the Bulgarian
Telecommunications Company AD or other persons who hold valid construction
or installation permits in respect of the installation and operation of
such equipment at such sites as are required by the Bulgarian Law on the
Structure of the Territory and LGC is not required to obtain any
construction or installation permits in respect of the installation and
operation of such equipment pursuant to the Bulgarian Law on the Structure
of Territory.
|
|
|
6.5.1
|
be
required to repeat the Warranties in Clause 6.1, 6.2 and 6.3 made to CME
ME on the First Closing Date;
|
|
|
6.5.2
|
be
required to repeat the Warranties in Clause 6.1, 6.2 and 6.4 made to CME
ME on the Second Closing Date; and
|
|
|
6.5.3
|
also
be required to make (or cause its Affiliates entering into any Transaction
Document to make) such additional representations and warranties to CME ME
as may be set forth in the other Transaction
Documents.
|
|
6.6
|
CME
ME shall be required to repeat the Warranties in Clause 6.1 made to the
Seller on the First Closing Date and the Second Closing
Date.
|
|
6.7
|
Without
prejudice to any of the rights and remedies available to the Parties under
this Agreement or the other Transaction Documents, in the event of the
breach of a Warranty given by the Parties, the Party which is in breach of
such Warranty shall take all steps necessary to establish the state of
affairs which would have existed if no such breach had occurred and such
Warranty was true and correct.
|
|
6.8
|
The
Seller acknowledges that CME ME has entered into this Agreement in
reliance upon, amongst other things, the Warranties and the undertakings
contained in Clause 8. Save as expressly provided otherwise,
the Warranties shall be separate and independent and shall not be limited
by reference to anything in this
Agreement.
|
|
6.9
|
CME
ME shall be entitled to make a claim involving or relating to a breach of
any of the Warranties whether or not CME ME and/or any of its agents
and/or any of its advisers had knowledge (whether actual, constructive or
implied) of the matter giving rise to the claim; and CME ME's right or
ability to make any such claim shall not be affected or limited, and the
amount recoverable shall not be reduced, on the grounds that CME ME and/or
its agents and/or its advisers may have had actual, constructive or
implied knowledge of the matter giving rise to the
claim.
|
|
7.1
|
On
the date that is twelve (12) months after the Second Closing Date, CME ME
shall pay to the Seller an amount equal to the Retention Amount minus any
Adjustment Amount retained by CME pursuant to Clause 3(b) of Schedule 5
(if any) and minus the amount of any Claims by CME ME in respect of the
Warranties notified to the Seller prior to such date, whether or not such
Claims have been satisfied by such
date.
|
|
8.1
|
The
Seller acknowledges on its own behalf and on behalf of any Affiliate that
CME ME is an indirect subsidiary of a U.S. reporting company and as such
is required to comply with certain U.S. securities, anti-money laundering,
anti-corruption and other laws applicable to it or its ultimate
parent. The Seller hereby agrees not to violate any such
requirements with respect to the TV2 Group Business and agrees not to take
any action, or to refrain from taking any action, that would result in a
violation of such requirements by any member of the TV2 Group Business or
any company that has conducted the TV2 Group Business at any
time.
|
|
8.2
|
Except
in the case of fraud, the Seller undertakes to CME ME not to make or
pursue any claim against Top Tone Media, Zopal or their respective
subsidiaries or their respective directors, officers, employees or agents
in connection with assisting the Seller in giving the Warranties and/or
entering into this Agreement or any documents entered into pursuant to
this Agreement.
|
|
8.3
|
The
Seller undertakes to use all commercially reasonable efforts to procure
the transfer of 34% of the issued share capital of Mila FM OOD to LGC as
soon as possible after the Second Closing
Date.
|
|
|
9.2.1
|
at
any time prior to the First Closing Date by the Seller if there has been a
material breach of any covenant, representation or warranty or other
obligation of CME ME hereunder or under any other Transaction Document and
such breach shall not have been cured with ten (10) Business Days of CME
ME becoming aware of such breach or after receipt of notice from the
Seller specifying the breach and requesting that such breach be remedied;
and
|
|
|
9.2.2
|
at
any time prior to the First Closing Date by CME ME, if there has been a
material breach of any covenant, representation or warranty or other
obligation of the Seller hereunder or under any other Transaction Document
and such breach shall not have been cured with ten (10) business days of
the Seller becoming of such breach or after receipt of notice from CME ME
specifying the breach and requesting that such breach be
remedied.
|
|
9.3
|
This
Agreement shall terminate automatically on the Longstop Date if any
condition specified in Clause 3 shall not have been satisfied or waived in
writing on or prior to such date as a result
of:
|
|
|
9.3.1
|
any
action or failure to act on the part of CME ME (other than any such action
or failure to act that is due to the gross negligence or wilful misconduct
of the Seller);
|
|
|
9.3.2
|
any
action or failure to act on the part of the Seller (other than any such
action or failure to act that is due to the gross negligence or wilful
misconduct of CME ME).
|
|
10.1
|
Subject
to the limitations set out in Clause 11, the Seller shall indemnify and
keep indemnified CME ME and its Affiliates and subsidiaries, and their
respective representatives, officers, directors, shareholders and
controlling persons (the "Purchaser Protected
Parties") from and against all costs, claims, demands, damages,
expenses, penalties, fines, liabilities, losses and diminution in value
(including the fees and expenses of investigation and counsel), whether or
not involving a Third Party Claim, (collectively, "Losses") whatsoever
arising out of or in connection
with:
|
|
10.1.2
|
any
breach or non-fulfilment of any covenant or undertaking in any Transaction
Documents by the Seller or any of its
Affiliates;
|
|
10.1.3
|
any
and all liability whatsoever, however imposed, whether paid by CME ME or
the TV2 Group Business, in respect of any fraudulent or criminal act or
omission by the Seller or any of its Affiliates or any officer, director,
representative, employee or agent thereof in respect of the ownership and
operation of the TV2 Group
Business;
|
|
10.1.4
|
any
and all actions, suits, proceedings, claims, demands, assessments,
judgments incidental to the foregoing or the enforcement of such
indemnification; and
|
|
10.2
|
Subject
to the limitations provided in Clause 11, in addition to the foregoing
provisions of Clause 10.1, without limiting the generality of such
provisions, the Seller agrees to indemnify and hold harmless the Purchaser
Protected Parties against any Losses in respect
of:
|
|
10.2.1
|
any
and all liability whatsoever, however imposed (including any claim
asserted or deficiency assessed against or collected from or paid by CME
ME or the TV2 Group Business), in respect of any Taxes (including any
penalties, interest and fines thereon, whether accrued before, on or after
the First Closing Date in respect of the TV2 Business or on or before the
Second Closing Date in respect of the LGC Business) of the TV2 Group
Business for any and all periods up to and including the period ending on
the First Closing Date in respect of the TV2 Business or on or before the
Second Closing Date in respect of the LGC Business (including in
connection with any Tax return filed after the First Closing Date in
respect of the TV2 Business for any period prior to the First Closing Date
or on or before the Second Closing Date in respect of the LGC Business for
any period prior to the Second Closing
Date);
|
|
10.2.2
|
any
Claims by or on behalf of any owner or former owner of shares in the
capital of Ring TV in respect of the ownership of the shares of Ring TV
acquired hereunder;
|
|
10.2.3
|
any
court action or proceeding, arbitration, litigation, investigation or suit
(whether civil, criminal or administrative) commenced, pending or
threatened by any third party including any governmental authority on or
before the First Closing Date in respect of the TV2 Business or on or
before the Second Closing Date in respect of the LGC Business;
and
|
|
10.3
|
CME
ME shall indemnify and keep indemnified the Seller and its Affiliates and
subsidiaries and their respective representatives, officers, directors,
shareholders and controlling persons (the "Seller Protected
Parties") from and against all Losses whatsoever arising out of or
in connection with (i) any false, incorrect or misleading representation
or warranty by CME ME provided herein, (ii) the non-fulfilment of any
agreement, covenant or obligation by CME ME provided herein and (iii) any
and all actions, suits, proceedings, claims, demands, assessments,
judgments incidental to the foregoing or the enforcement of such
indemnification.
|
|
10.4
|
Any
Claim under Clause 10.1, 10.2 or 10.3 shall be asserted by written notice
from the Protected Party asserting such Claim (the "Indemnified Party") to
the Party from whom indemnification is sought (the "Indemnifying
Party").
|
|
10.5
|
The
notice referred to in Clause 10.4 shall include information regarding the
nature and basis for the Indemnity Claim and an estimate of the amount of
Losses demanded (detailing, to the extent practicable, the Indemnified
Party's calculation of the Losses thereby alleged to have been suffered by
it).
|
|
10.6.1
|
the
Indemnity Claim relates to any Third Party Claim, the Indemnified Party
shall state in the notice to the Indemnifying Party the nature and basis
of the Third Party Claim and the amount thereof, to the extent known, and
the Indemnifying Party shall be entitled at its expense to assume the
defence of the Third Party Claim in place of the Indemnified Party using
legal advisers approved by the Indemnified Party (such approval not to be
unreasonably withheld or delayed); provided
however that if the amount of the Indemnity Claim exceeds the amount of
the indemnity available pursuant to Clause 11, the Indemnified Party can
elect to retain the defence of the Third Party Claim. Upon
assumption of the defence by the Indemnifying Party, the Indemnified Party
shall provide the Indemnifying Party and its advisers with such
information and assistance as the Indemnifying Party shall reasonably
request at the cost of the Indemnifying
Party.
|
|
10.6.2
|
the
Indemnifying Party elects not to assume the defence of the Third Party
Claim, the Indemnified Party shall (subject to being indemnified to its
reasonable satisfaction by the Indemnifying Party of the costs and
expenses of doing so) take such action as the Indemnifying Party shall
reasonably request in defending such Third Party
Claim.
|
|
10.7
|
The
obligations of an Indemnifying Party under this Clause 10 shall not extend
to any liability arising from the settlement or compromise of any action
or claims brought against the Indemnified Party, or the admission by the
Indemnified Party of any claim or the taking by the Indemnified Party of
any action (unless required by law or applicable process), which might
reasonably be expected to prejudice the successful defence of the action
or claim without, in any such case, the prior written consent of the
Indemnifying Party.
|
|
10.8
|
Any
payments made by the Seller as the Indemnifying Party in respect of any
Claims under Clause 10.1, 10.2 or 10.3 shall be satisfied by the reduction
of a sum equal to the value of such Claim from the Retention Amount first,
provided, that the amount of any Claim (or part thereof) not satisfied by
such reduction shall remain the liability of Seller to CME
ME.
|
|
11.1
|
The
aggregate liability of the Seller to CME ME for any Losses arising from or
related to any false, incorrect or misleading Warranty or any breach of a
term of this Agreement and for indemnification relating to such matters
shall be an amount in U.S. Dollars equal to the Purchase
Price.
|
|
11.2
|
The
aggregate liability of CME ME to the Seller for any Losses caused by a
breach of a term of this Agreement by CME ME shall be limited to an
aggregate amount equal to US$ 25,000,000 provided however that nothing in
this Clause shall affect the obligation of CME ME to pay the Purchase
Price if such amount is otherwise due pursuant to this
Agreement.
|
|
12.1
|
If
a Party fails to pay any amount payable by it under this Agreement on its
due date, interest shall accrue on the overdue amount from the due date up
to the date of actual payment at a rate of 5% per annum during the period
of non-payment.
|
|
13.1
|
Any
notice or other communication to be given under this Agreement shall be in
writing, in the English language, and shall be deemed to have been duly
given to a Party:
|
|
13.1.2
|
on
the next following Business Day following being transmitted by facsimile
with suitable proof of transmission;
or
|
|
13.2
|
For
the purposes of this Clause, the authorized address and facsimile details
of the Parties shall be as follows:
|
|
13.3
|
Any
notice given under this Agreement outside Working Hours of the place to
which it is addressed shall be deemed not to have been given until the
start of the next period of Working Hours in such
place.
|
|
14.1
|
This
Agreement constitutes the whole agreement between the Parties and
supersedes any arrangements, understanding or previous agreement between
them relating to the subject matter to which it
relates.
|
|
14.2
|
Each
Party acknowledges that in entering into this Agreement, it does not rely
on, and shall have no remedy in respect of, any statement, representation,
assurance or warranty of any person other than as expressly set out in
this Agreement.
|
|
15.1
|
Subject
to Clause 10, no person who is not a party to this Agreement shall have
any rights under the Contracts (Rights of Third Parties) Act 1999 to
enforce a term of this Agreement.
|
|
15.2
|
The
Purchaser Protected Parties and the Seller Protected Parties shall have
the right under the Contracts (Rights of Third Parties) Act 1999 to
enforce Clause 10 and any other relevant Clause necessary for the
enforcement of the indemnities therein. Notwithstanding this
Clause 15.2, this Agreement may be amended or modified without the consent
of any person who is not a Party to this Agreement, including the
Purchaser Protected Parties and the Seller Protected
Parties.
|
|
16.1
|
This
Agreement may be amended or modified only if in writing (including a
written document evidenced by a facsimile transmission) and signed by each
of the Parties.
|
|
16.2
|
The
single or partial exercise of any right, power or remedy provided by law
or under this Agreement shall not preclude any other or further exercise
of it or the exercise of any other right, power or
remedy.
|
|
16.3
|
None
of the terms of this Agreement may be waived except by an instrument in
writing duly executed by the waiving
Party.
|
|
19.1
|
Neither
Party shall divulge or communicate to any person (other than those of its
shareholders, directors, employees and professional advisers whose
province it is to know the same) or use or exploit for any reason
whatsoever this Agreement or the matters contemplated hereby or the
information disclosed by the other Party, and shall use its reasonable
endeavours to prevent its employees from so
acting.
|
|
19.2
|
Notwithstanding
the provisions of Clause 19.1, any Party may make an announcement or
disclosure concerning this
Agreement:
|
|
|
(a)
|
if
required by law or any requirement of any securities exchange or
regulatory or governmental body to which that Party is subject, wherever
situated, whether or not the requirement has the force of law,
or
|
|
|
(b)
|
to
a Party's or its Affiliates' directors, officers, employees, professional
advisers, counsel, rating agencies, and lenders or other providers of
funds (a) who are directly concerned with this Agreement or any related
arrangements or transactions, (b) whose knowledge of such information is
reasonably necessary; and (c) who by its position or otherwise is under a
duty to observe confidentiality in dealing with this Agreement and such
related arrangements or otherwise must comply with the provisions of this
Agreement in respect of
confidentiality.
|
|
19.3
|
The
restrictions contained in this Clause 19 shall continue to apply for a
period of three years following the expiration or termination of this
Agreement.
|
|
24.1
|
Any
disputes, claims or controversy arising out of or related to this
Agreement, including any question as to its formation, validity,
interpretation or termination, which cannot be resolved by negotiations
between the Parties shall be settled by arbitration on an ad hoc basis in
accordance with the Rules of the London Court of International
Arbitration, which are deemed to be incorporated by reference into this
Clause 24, except to the extent modified by this Clause
24.1. The tribunal shall consist of three arbitrators. Each of
the Parties shall nominate one arbitrator and the third arbitrator shall
be appointed by the two arbitrators nominated by the
Parties. Either of the Parties shall have the right to initiate
the proceedings.
|
|
24.2
|
The
seat of the arbitration shall be London, England. The language
of the arbitration shall be English, except that any party to the
arbitration may submit testimony or documentary evidence in Bulgarian,
whereupon it shall also furnish a certified translation or interpretation
of any such evidence into English.
|
|
24.3
|
If
any dispute arising out of or relating to this Agreement (hereinafter
referred to as a "Related
Dispute") raises issues which are substantially the same as or
connected with issues raised in another dispute which has already been
referred to arbitration under this Agreement or another Transaction
Document (an "Existing
Dispute"), the tribunal appointed or to be appointed in respect of
any such Existing Dispute shall also be appointed as the tribunal in
respect of any such Related Dispute. Where, pursuant to the
foregoing provisions, the same tribunal has been appointed in relation to
two or more disputes, the tribunal may, with the agreement of all the
parties concerned or upon the application of one of the parties, being a
party to each of the disputes, order that the whole or part of the matters
at issue shall be heard together upon such terms or conditions as the
tribunal thinks fit. The tribunal shall have power to make such
directions and any interim or partial award as it considers just and
desirable.
|
|
24.4
|
Each
of the Parties agree that money damages would not be a sufficient remedy
for any breach of this Agreement by them and that in addition to all other
remedies, CME ME be entitled to specific performance and to injunctive or
other equitable relief as remedies for any such breach or threatened
breach of this Agreement by the Seller without proof of actual
damages. The Parties agree not to oppose the granting of such
relief, and to waive, and to use their best efforts to cause any Affiliate
to waive, any requirement for the securing or posting of any bond in
connection with such remedy.
|
|
SIGNED
|
|
||
|
for
and on behalf of
|
|
||
|
CME
MEDIA ENTERPRISES B.V.
|
|
||
|
acting
by Pan-Invest B.V, represented by Peter Booster
|
/s/ Peter Booster
|
||
|
in
the presence of:
|
|
|
/s/ Emilie de Waard
|
|
|
Signature
of Witness
|
|
Address
of Witness:
|
Charles Mingussingel
26
|
|
|
3069
XB Rotterdam
|
||
|
The
Netherlands
|
|
and
A.N.G. van Spaendonck
|
|
/s/ Alphons van
Spaendonck
|
|
|
In
the presence of:
|
|||
|
|
|
/s/ Nancy van Veen
|
|||
|
Name
of Witness: Nancy van Veen
|
Signature
of Witness
|
||
|
Occupation
of Witness: Secretary
|
|||
|
Address
of Witness:
|
Laan der
Zeven Linden 42
|
||
|
2645
GS Delfgauw
|
|||
|
The
Netherlands
|
|||
|
Signed
by
|
|
||
|
VLADIMIR
KRASTEV BROUSSARSKI
|
|
/s/
Vladimir Broussarski
|
|
|
acting
as attorney for
|
|
||
|
TOP TONE MEDIA HOLDINGS
LIMITED
|
|
||
|
under
a power of attorney dated 10th
July 2008
|
|
||
|
in
the presence of:
|
|
|
/s/ Milena Ivanova
|
|||
|
Name
of Witness: Milena Tsvetanova Ivanova
|
Signature
of Witness
|
||
|
Occupation
of Witness: Attorney at Law
|
|||
|
Address of
Witness:
|
5th
floor, Office 510
|
||
|
20
Frederic Joliot Qurrie
|
|||
|
1113
Sofia, Izgrev
|
|||
|
Bulgaria
|
|||
|
ROSSITSA
PENCHEVA FILIPOVA
|
|
||
|
acting
as attorney for
|
|
||
|
TOP TONE MEDIA HOLDINGS
LIMITED
|
|
||
|
under
a power of attorney dated 10th
July 2008
|
|
||
|
in
the presence of:
|
|
|
/s/ Milena Ivanova
|
|||
|
Name
of Witness: Milena Tsvetanova Ivanova
|
Signature
of Witness
|
||
|
Occupation
of Witness: Attorney at Law
|
|||
|
Address of
Witness:
|
5th
floor, Office 510
|
||
|
20
Frederic Joliot Qurrie
|
|||
|
1113
Sofia, Izgrev
|
|||
|
Bulgaria
|
|||
|
1.
|
Registered
number
|
:
|
B
124257
|
||
|
2.
|
Date
of incorporation
|
:
|
15
February 2007
|
||
|
3.
|
Place
of incorporation
|
:
|
Luxembourg
|
||
|
4.
|
Address
of registered office
|
:
|
19
Rue Aldringen, Luxembourg L-1118
|
||
|
5.
|
Class
of company
|
:
|
Public
Limited Liability Company
|
||
|
(société
anonyme)
|
|||||
|
6.
|
Share
capital
|
:
|
EUR
31,000
|
||
|
7.
|
Members:
|
|
Full name
|
Registered address
|
Number of shares held
|
|
Top
Tone Media Holdings Limited
|
3rd
Floor, Omar Hodge Building, Wickhams Cay I, P.O. Box 362, Road Town,
Tortola, British Virgin Islands
|
2791
|
|
Equip
Limited
|
Trident
Chambers, P.O. Box 146, Road Town, British Virgin Islands
|
309
|
|
8.
|
Directors
and Auditor:
|
|
Full name
|
Position
|
Usual residential
address
|
|
Richard
Turner
|
Director
|
28,
Rue du Couvert, L-1363 Howald
|
|
Francis
Nicholas Hoogewerf
|
Director
|
19,
Rue Aldringen, Luxembourg L-1118
|
|
Michael
Chamier
|
Director
|
1
Rue de Limpach, L-4980 Reckange-sur-Mess
|
|
Henri
van Herberghen
|
Auditor
|
78,
Rue A. Asselbergs, B-1180
Bruxelles
|
|
9.
|
Accounting
reference date
|
:
|
31
December
|
||
|
10.
|
Powers
of Attorney Currently in Force
|
:
|
N/A
|
|
1.
|
Registered
number
|
:
|
B
139431
|
||
|
2.
|
Date
of incorporation
|
:
|
26
May 2008
|
||
|
3.
|
Place
of incorporation
|
:
|
Luxembourg
|
||
|
4.
|
Address
of registered office
|
:
|
L-1118,
rue Aldringen 19, Luxembourg
|
||
|
5.
|
Class
of company
|
:
|
Public
Limited Liability Company
|
||
|
(société
anonyme)
|
|||||
|
6.
|
Share
capital
|
:
|
EUR
31,000
|
||
|
7.
|
Members:
|
|
Full name
|
Registered address
|
Number of shares held
|
|
Francis
Nicholas Hoogewerf
|
19
Rue Aldringen, Luxembourg L-1118
|
1
|
|
Top
Tone Media Holdings Limited
|
3rd
Floor, Omar Hodge Building, Wickhams Cay I, P.O. Box 362, Road Town,
Tortola, British Virgin Islands
|
99
|
|
8.
|
Directors
and Auditor:
|
|
Full name
|
Position
|
Usual residential
address
|
|
Richard
Turner
|
Director
|
28,
Rue du Couvert, L-1363 Howald
|
|
Francis
Nicholas Hoogewerf
|
Director
|
19,
Rue Aldringen, Luxembourg L-1118
|
|
Michael
Chamier
|
Director
|
1
Rue de Limpach, L-4980 Reckange-sur-Mess
|
|
Henri
van Herberghen
|
Auditor
|
78,
Rue A. Asselbergs, B-1180
Bruxelles
|
|
9.
|
Accounting
reference date
|
:
|
31
December
|
||
|
10.
|
Powers
of Attorney Currently in Force:
|
a power of attorney dated July 14th, 2008 issued to Milena Ivanova in relation to the acquisition of LGC to be filed with the Commercial Registry |
|
|
(a)
|
only
take account of information available to the Parties at the relevant
Closing Date and not take account of any event happening after the
relevant Closing Date (except in relation to information known to the
Parties about that event at the relevant Closing Date);
and
|
|
|
(b)
|
be
prepared as if TV2 and its subsidiaries or LGC and its subsidiaries had,
in either such case, remained under the ownership of the
Seller.
|
|
|
2.1
|
Indebtedness
shall mean (i) any obligation (whether incurred as principal or surety)
for the payment or the repayment of money, whether present or future,
actual or contingent, (including any bank overdraft balances, notes, loan
stock, debentures, bonds, capital leases, guarantees, credit lines,
letters of credit, bankers' acceptances, outstanding amounts raised by
acceptances under an acceptance credit or bills facility opened by a bank
or acceptance house, commercial paper or other debt instruments, any
overdraft, interest or accrued discount on the foregoing items and also
any interim dividend or distribution which has been declared but not paid
by the relevant person and other instruments evidencing indebtedness) of
the relevant member of the TV2 Group Business, (ii) any amount payable by
the relevant member of the TV2 Group Business in respect of the transfer
of any asset set forth in Schedule 8, and (iii) any financing lease (and
shall, for the avoidance of doubt, include any item identified as
"Indebtedness" in Schedule 12), but excluding other ordinary trade credit
and acceptances of trade bills in respect of purchases in the ordinary
course of trading;
|
|
|
2.2
|
the
relevant Working Capital Amount shall be determined in accordance with the
categories identified in respect thereof in Schedule
12.
|
|
"A"
|
is
equal to US$ 148,000,000 minus the TV2 Closing Working Capital Deficit
Amount (which shall be expressed as a positive number in the event that
the TV2 Closing Working Capital Amount is less than the Target TV2 Working
Capital Amount) minus the TV2 Closing Indebtedness minus the Retention
Amount;
|
|
"B"
|
is
equal to US$ 148,000,000 minus the Estimated TV2 Working Capital Deficit
Amount (which shall be expressed as a positive number in the event that
the Estimated TV2 Working Capital Amount is less than the Target TV2
Working Capital Amount) minus the Estimated TV2 Indebtedness minus the
Retention Amount; and
|
|
"A"
|
is
equal to US$ 24,000,000 minus the LGC Closing Working Capital Deficit
Amount (which shall be expressed as a positive number in the event
that the LGC Closing Working Capital Amount is less than the
Target LGC Working Capital Amount) minus the LGC Closing
Indebtedness.
|
|
"B"
|
is
equal to US$ 24,000,000 minus the Estimated LGC Working Capital Deficit
Amount (which shall be expressed as a positive number in the event that
the Estimated LGC Working Capital Amount is less than the Target LGC
Working Capital Amount) minus the Estimated LGC Indebtedness;
and
|
|
|
(a)
|
if
the relevant Adjustment Amount is a positive amount, an amount equal to
the absolute value of the relevant Adjustment Amount shall be paid by CME
ME to the Seller; but
|
|
|
(b)
|
if
the relevant Adjustment Amount is a negative amount, an amount equal to
the absolute value of the relevant Adjustment Amount shall be paid by the
Seller to CME ME provided, that if such amount is less than US$ 100,000,
such amount shall be deducted from the Retention Amount payable by CME ME
pursuant to Clause 7.1.
|
|
|
(i)
|
each
of the conditions set out in Clause 3.1/3.2 of the MSPA to be satisfied by
us or our Affiliates have been duly satisfied in accordance with the terms
of the MSPA;
|
|
|
(ii)
|
we
and our Affiliates have performed and complied in all respects with all
covenants and provisions required by the MSPA and the other Transaction
Documents to be performed or complied with by us or our Affiliates on or
prior to the date hereof; and
|
|
|
(iii)
|
the
Warranties given by us in Clauses 6.1, 6.2 and 6.3/6.4 of the MSPA are
true, accurate and not misleading in all respects as of the Execution Date
and the date hereof.
|
|
_____________________
|
||
|
Name:
|
||
|
Position:
Director
|
|
|
(i)
|
each
of the conditions set out in Clause 3.1/3.2 of the MSPA to be satisfied by
us or our Affiliates have been duly satisfied in accordance with the terms
of the MSPA;
|
|
|
(ii)
|
we
and our Affiliates have performed and complied in all respects with all
covenants and provisions required by the MSPA and the other Transaction
Documents to be performed or complied with by us or our Affiliates on or
prior to the date hereof; and
|
|
|
(iii)
|
the
Warranties given by us in Clause 6.1 of the MSPA are true, accurate and
not misleading in all respects as of the Execution Date and the date
hereof.
|
|
_____________________
|
||
|
Name:
|
||
|
Position:
Director
|
|
|
(1)
|
Items
listed in the invoice (No. 0000000009/04.07.2008) and the acceptance –
delivery protocol dated 04.07.2008
|
|
|
(1)
|
Trilateral
agreement between Technosteel, Top Tone BG and BTC, under which
Top Tone BG substitutes in the rights and obligations
of Technosteel, in agreement No 16297 dated 02.03.2006 for
installation and exploration of
transmitters
|
|
|
(2)
|
Trilateral
agreement between Technosteel, Top Tone BM and BTC, under which Top Tone
BG substitutes in the rights and obligations of Technosteel, in
agreement No 16296 dated 02.03.2006; for broadcasting of TV
program
|
|
|
(3)
|
Annex
for termination of agreement between Technosteel and Krakra AD dated
01.04. 2006, Pernik; New agreement between Top Tone BG and Krakra AD,
related to usage of gantry carrier and installation of technical equipment
and room in total area of 1 sq.m.
|
|
|
(4)
|
Trilateral
agreement between Technosteel, Top Tone BG and Balabanovi I sie - Ramba -
Kustendil, under which Top Tone BG substitutes in the rights and
obligations of Technosteel in agreement dated
15.03.2006
|
|
|
(5)
|
Annex
for termination of agreement between Technosteel and Mont 7 Holding OOD
dated 23.03. 2006, Montana; New Rent agreement between Top Tone BG and
Mont 7 Holding OOD, Montana
|
|
|
(6)
|
Trilateral
agreement between Technosteel, Top Tone BG and Alpha Radio, under which
Top Tone BG substitutes in the rights and obligations
of Technosteel, under agreement dated
15.03.2006;
|
|
|
(8)
|
Annex
for termination of agreement between Technosteel and sole trader
Chervenkondev - dated 25.02.2008, Sliven; New Rent agreement between Top
Tone BG and sole trader Chervenkondev,
Sliven
|
|
|
(12)
|
Trilateral
agreement with Shoumen univercity, under which Top Tone BG substitutes in
the rights and obligations of Technosteel” , by rent agreement
dated 15.03.2006
|
|
|
(13)
|
Agreement
between Top Tone BG and TV2 of 29 May 2008, with attachments: (1)
Attachment 1 – Numbers of decision of Commission of regulations of
commutations; (2) Individual license for television activity with national
range of TV 2, No 321-00002/17.02.2000 and Amendment No
321-00002-01/15.06.2000;3. Anex for termination of agreement between
Technosteel and TV2 dated
29.05.2008
|
|
|
(14)
|
Agreement
for termination of agreement for rent between Technosteel and Pazardjik
municipality dated 2 August 2006
|
|
|
(15)
|
Trilateral
agreement with Vidin municipality under which Top Tone BG substitutes in
the rights and obligations of Technosteel, under rent agreement dated 28
March 2006
|
|
|
(16)
|
Trilateral
agreement with Kustendil drama theatre under which Top Tone BG substitutes
in the rights and obligations of Technosteel, under rent agreement dated
15 March 2006
|
|
|
(1)
|
Items
listed in the invoice (No. 0000000014/01.07.2008) issued by Torn M to TV2
and the acceptance - delivery protocol of assets from 01.07.2008, from
Torn M to TV2
|
|
|
(1)
|
Novation
Contract No. 200712332 / 09.07.208 between BM Leasing AD, TV2
and Torn M whereby TV2 replaces Torn M as a lessee under the Leasing of
Assets Agreement entered into by BM Leasing and Torn M on 27 December
2007
|
|
|
(1)
|
Items
listed in the invoice (No. 1000000001 /01.07.2008), issued by Max Channel
to LG Consult and the acceptance - delivery protocol of assets from
01.07.2008, from Max Channel to LG
Consult
|
|
|
(3)
|
Annex
of 3 July 2008 for termination of Agreement of 14 August 2007 between Max
Channel and Balkan Balgarska Televizia
AD
|
|
|
(5)
|
Annex
of 1 June 2008 for termination of Lease Agreement of 1 December 2007
between Max Channel and Vital-I
EOOD
|
|
|
(1)
|
Items
listed in an enclosure to Annex from 17.04.2007 to the Preliminary
Contract for sell – purchase of broadcasting and program licenses from
11.04.2007, between Inter-Mashineks and LGC Ltd, and related invoice (No.
21/12.04.2007), issued by Inter-Mashineks to LG Consult and related
invoice (No. 27/14.05.2007), issued by Inter-Mashineks to
LGC
|
|
|
(1)
|
Rent
Contract from 02.01.08 between UKV Praktika Ltd. and LGC for positioning
the radio transmitter for Sofia
|
|
|
(2)
|
Rent
Contract from 15.05.2008 between LGC and owners of the
building, situated in Bojour street, building 4, entrance B -
Pernik for positioning the radio transmitter for
Pernik
|
|
36.
|
Registration
as an operator entitled to carry out television activity through cable and
satellite (previously individual license № 324-00325 /
01.02.2001)
|
|
Parties
|
Dated
|
Agreement Subject
|
||
|
TV2
EOOD and Golf Club EOOD
|
Rental
agreement (providing for rental of office premises)
|
|||
|
TV2
EOOD and Fresh Production
|
Production
agreement (production of “In the Saloon” from
March 7, 2008 to September 1, 2008)
|
|||
|
TV2
EOOD and Mobil Rent
|
Lease
agreement (for operating lease for cars)
|
|||
|
TV2
EOOD and Mobil Rent
|
Lease
agreement and 2 annexes (for operating leases for cars)
|
|||
|
TV2
EOOD and Max Channel AD
|
License
agreement (granting program rights for “The Holywood Reporter”
for one year)
|
|||
|
TV2
EOOD and MSKey Group OOD
|
MSKey
develops the web site of TV 2; BGN 36,000 (VAT
included)
|
|||
|
TV2
EOOD and Attica Media Bulgaria OOD
|
Advertising
in TV 2 programs for BGN 50,000; duration 21.12.07 –
31.12.08
|
|||
|
TV2
EOOD and BMG
|
December
3, 1007
|
Barter
Advertising agreement for advertising for BGN 104,008 (VAT excluded) from
03.12.2007 to 31.12.2008
|
||
|
TV2
EOOD and Radio Company CJ
|
Barter
Advertising agreement for advertising for BGN 50,000 (VAT excluded) from
09.01.2008 to
31.12.2008
|
|
Parties
|
Dated
|
Agreement Subject
|
||
|
LGC
Consult EOOD and Radio C.J.
|
Broadcasting
agreement (broadcasting of radio program)
|
|||
|
LGC
Consult EOOD and Radio C.J.
|
Consulting
agreement (provision of consulting services)
|
|||
|
LGC
Consult EOOD and K Consulting
|
Loan
agreement and annex (grant of loan of BGN 1,000,000, later increased to
BGN 2,000,000)
|
|||
|
LGC
Consult EOOD and Lend Company
|
Loan
agreement (grant of loan of EUR
1,420,000)
|
|
Parties
|
Dated
|
Agreement Subject
|
||
|
Ring-SV
AD and Geo Advisors
|
2
April 2008
|
Lease
agreement (lease of
premises)
|
|
Parties
|
Dated
|
Agreement subject
|
||
|
TV2
EOOD and Advertising Factory
|
(project
“Love is in the
Air”)
|
|||
|
TV2
EOOD, Future Profile and Interactive Media Services
|
||||
|
TV2
EOOD and MSKey Group
|
Barter
contract for advertisement for BGN 50,000; duration 01.12.07 –
31.12.08
|
|||
|
TV2
EOOD and Finlab EOOD
|
Service
agreement (provision of accounting
services)
|
|
TV2
|
Top
Tone BG
|
|||||||
|
WORKING
CAPITAL
|
(BGN)
|
(BGN)
|
||||||
|
Current
assets
|
||||||||
|
Cash
|
||||||||
|
Trade
receivables
|
||||||||
|
Related
party operating receivables
|
||||||||
|
VAT
recoverable before August 30, 2008
|
||||||||
|
Other
operating receivables
|
||||||||
|
Total
current assets
|
||||||||
|
Current
liabilities
|
||||||||
|
Trade
payables and accruals
|
||||||||
|
Related
party operating payables and accruals
|
||||||||
|
Payroll
payables
|
||||||||
|
Payables
to shareholders and management
|
||||||||
|
Other
operating payables
|
||||||||
|
Total
current liabilities
|
||||||||
|
Net working capital
|
||||||||
|
Net working capital of the TV2
Business
|
||||||||
|
Indebtedness
|
||||||||
|
Loan
from related party BM Leasing (incl. interest accrued)
|
||||||||
|
Loan
from related party Land Company (incl. interest accrued)
|
||||||||
|
Loan
from related party K Consulting (incl. interest accrued)
|
||||||||
|
Other
loans
|
||||||||
|
Lease
payables - vehicles
|
||||||||
|
Lease
payables - other
|
||||||||
|
Payables
to related parties for asset transfer – Torn M
|
||||||||
|
Payables
to related parties for asset transfer - Technosteel
|
||||||||
|
Payables
for asset transfer – Inter-mashineks
|
||||||||
|
Lease
BM Leasing (for Torn M assets)
|
||||||||
|
Total
indebtedness
|
||||||||
|
Fixed
assets
|
||||||||
|
Fixed
assets - tangible - land and building
|
||||||||
|
Fixed
assets transferred from Torn M to TV2
|
||||||||
|
Fixed
assets - tangible - playout and processing
|
||||||||
|
Fixed
assets - tangible - broadcast and distribution
|
||||||||
|
Fixed
assets - tangible - IT hw / sw
|
||||||||
|
Fixed
assets - tangible - vehicles
|
||||||||
|
Fixed
assets - tangible - other
|
||||||||
|
Fixed
assets - tangible - broad
|
||||||||
|
Fixed
assets -intangible
|
||||||||
|
Fixed
assets -investments at cost
|
||||||||
|
Total
fixed assets
|
||||||||
|
Non-liquid
assets
|
||||||||
|
Program
rights
|
||||||||
|
Other
stock items
|
||||||||
|
Deferred
expense
|
||||||||
|
Deferred
interest expense
|
||||||||
|
Deferred
revenue
|
||||||||
|
VAT
recoverable after August 30, 2008
|
||||||||
|
Advances
to suppliers/from customers (net)
|
||||||||
|
Net
barter position
|
||||||||
|
Total
non-liquid assets
|
||||||||
|
LGC
|
Ring
TV
|
|||||||
|
WORKING
CAPITAL
|
(BGN)
|
(BGN)
|
||||||
|
Current
assets
|
||||||||
|
Cash
|
||||||||
|
Trade
receivables
|
||||||||
|
Related
party operating receivables
|
||||||||
|
VAT
recoverable before August 30, 2008
|
||||||||
|
Other
operating receivables
|
||||||||
|
Total
current assets
|
||||||||
|
Current
liabilities
|
||||||||
|
Trade
payables and accruals
|
||||||||
|
Related
party operating payables and accruals
|
||||||||
|
Payroll
payables
|
||||||||
|
Payables
to shareholders and management
|
||||||||
|
Other
operating payables
|
||||||||
|
Total
current liabilities
|
||||||||
|
Net working capital
|
||||||||
|
Net working capital of the LGC
Business
|
||||||||
|
Indebtedness
|
||||||||
|
Loan
from related party BM Leasing (incl. interest accrued)
|
||||||||
|
Loan
from related party Land Company (incl. interest accrued)
|
||||||||
|
Loan
from related party K Consulting (incl. interest accrued)
|
||||||||
|
Other
loans
|
||||||||
|
Lease
payables - vehicles
|
||||||||
|
Lease
payables - other
|
||||||||
|
Payables
to related parties for asset transfer – Torn M
|
||||||||
|
Payables
to related parties for asset transfer - Technosteel
|
||||||||
|
Payables
for asset transfer – Inter-mashineks
|
||||||||
|
Lease
BM Leasing (for Torn M assets)
|
||||||||
|
Total
indebtedness
|
||||||||
|
Fixed
assets
|
||||||||
|
Fixed
assets - tangible - land and building
|
||||||||
|
Fixed
assets transferred from Torn M to TV2
|
||||||||
|
Fixed
assets - tangible - playout and processing
|
||||||||
|
Fixed
assets - tangible - broadcast and distribution
|
||||||||
|
Fixed
assets - tangible - IT hw / sw
|
||||||||
|
Fixed
assets - tangible - vehicles
|
||||||||
|
Fixed
assets - tangible - other
|
||||||||
|
Fixed
assets - tangible - broad
|
||||||||
|
Fixed
assets -intangible
|
||||||||
|
Fixed
assets -investments at cost
|
||||||||
|
Total
fixed assets
|
||||||||
|
Non-liquid
assets
|
||||||||
|
Program
rights
|
||||||||
|
Other
stock items
|
||||||||
|
Deferred
expense
|
||||||||
|
Deferred
interest expense
|
||||||||
|
Deferred
revenue
|
||||||||
|
VAT
recoverable after August 30, 2008
|
||||||||
|
Advances
to suppliers/from customers (net)
|
||||||||
|
Net
barter position
|
||||||||
|
Total
non-liquid assets
|
||||||||
| This ‘10-Q’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| 1/1/09 | ||||
| Filed on: | 10/29/08 | 8-K, CORRESP, UPLOAD | ||
| For Period End: | 9/30/08 | |||
| 9/1/08 | ||||
| 8/30/08 | ||||
| 7/28/08 | 8-K | |||
| 6/13/08 | ||||
| 5/1/08 | DEFR14A | |||
| 3/31/08 | 10-Q | |||
| 3/7/08 | ||||
| 3/4/08 | 8-K | |||
| 3/1/08 | ||||
| 2/1/08 | ||||
| 1/20/08 | ||||
| 1/9/08 | ||||
| 12/31/07 | 10-K | |||
| 12/21/07 | 4 | |||
| 12/14/07 | ||||
| 12/12/07 | ||||
| 12/1/07 | ||||
| 11/29/07 | ||||
| 11/25/07 | ||||
| 11/11/07 | ||||
| 5/1/07 | ||||
| 3/30/07 | ||||
| 1/10/07 | ||||
| 4/25/06 | PRE 14A | |||
| 11/22/96 | ||||
| List all Filings | ||||