BERMUDA
|
98-0438382
|
|
(State or other jurisdiction of incorporation and organization)
|
(IRS Employer Identification No.)
|
|
Mintflower Place, 4th floor
8 Par-La-Ville Rd, Hamilton, Bermuda
|
HM 08
|
|
(Address of principal executive offices)
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(Zip Code)
|
Large accelerated filer
T
|
Accelerated filer
o
|
Non-accelerated filer
o
|
Smaller reporting company
o
|
Class
|
Outstanding as of May 3, 2010
|
|
Class A Common Stock, par value $0.08
|
56,046,176
|
|
Class B Common Stock, par value $0.08
|
7,490,936
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Page
|
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Part I. Financial information
|
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1
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3
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5
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6
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7
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37
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58
|
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60
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Part II. Other Information
|
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60
|
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61
|
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69
|
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69
|
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70
|
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71
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March 31, 2010
|
December 31, 2009
|
|||||||
ASSETS
|
||||||||
Current assets
|
||||||||
Cash and cash equivalents
|
$ | 463,375 | $ | 445,954 | ||||
Restricted cash (Note 17)
|
30,985 | 1,046 | ||||||
Accounts receivable, net (Note 5)
|
156,041 | 180,983 | ||||||
Program rights, net
|
70,912 | 73,922 | ||||||
Asset held for sale
|
93,458 | 86,349 | ||||||
Other current assets (Note 6)
|
88,402 | 93,207 | ||||||
Total current assets
|
903,173 | 881,461 | ||||||
Non-current assets
|
||||||||
Property, plant and equipment, net (Note 7)
|
256,066 | 274,710 | ||||||
Program rights, net
|
199,911 | 182,601 | ||||||
Goodwill (Note 3)
|
1,101,868 | 1,136,273 | ||||||
Broadcast licenses and other intangible assets, net (Note 3)
|
335,437 | 353,243 | ||||||
Other non-current assets (Note 6)
|
34,068 | 44,499 | ||||||
Total non-current assets
|
1,927,350 | 1,991,326 | ||||||
Total assets
|
$ | 2,830,523 | $ | 2,872,787 |
March 31, 2010
|
December 31, 2009
|
|||||||
LIABILITIES AND EQUITY
|
||||||||
Current liabilities
|
||||||||
Accounts payable and accrued liabilities (Note 8)
|
$ | 177,789 | $ | 199,175 | ||||
Credit facilities and obligations under capital leases (Note 9)
|
56,482 | 117,910 | ||||||
Liability held for sale
|
29,488 | 22,193 | ||||||
Other current liabilities (Note 10)
|
50,614 | 12,840 | ||||||
Total current liabilities
|
314,373 | 352,118 | ||||||
Non-current liabilities
|
||||||||
Credit facilities and obligations under capital leases (Note 9)
|
131,596 | 6,030 | ||||||
Senior Debt (Note 4)
|
1,203,718 | 1,253,928 | ||||||
Other non-current liabilities (Note 10)
|
83,719 | 88,871 | ||||||
Total non-current liabilities
|
1,419,033 | 1,348,829 | ||||||
Commitments and contingencies (Note 18)
|
||||||||
EQUITY
|
||||||||
CME Ltd. shareholders’ equity:
|
||||||||
Nil shares of Preferred Stock of $0.08 each (December 31, 2009 – nil)
|
- | - | ||||||
56,046,176 shares of Class A Common Stock of $0.08 each (December 31, 2009 –56,046,176)
|
4,484 | 4,484 | ||||||
7,490,936 shares of Class B Common Stock of $0.08 each (December 31, 2009 – 7,490,936)
|
599 | 599 | ||||||
Additional paid-in capital
|
1,412,278 | 1,410,587 | ||||||
Accumulated deficit
|
(376,287 | ) | (333,993 | ) | ||||
Accumulated other comprehensive income
|
64,808 | 95,912 | ||||||
Total CME Ltd. shareholders’ equity
|
1,105,882 | 1,177,589 | ||||||
Noncontrolling interests
|
(8,765 | ) | (5,749 | ) | ||||
Total equity
|
1,097,117 | 1,171,840 | ||||||
Total liabilities and equity
|
$ | 2,830,523 | $ | 2,872,787 |
For the Three Months Ended March 31,
|
||||||||
2010
|
2009
|
|||||||
Net revenues
|
$ | 143,641 | $ | 136,320 | ||||
Operating expenses:
|
||||||||
Operating costs
|
27,280 | 25,273 | ||||||
Cost of programming
|
87,786 | 64,448 | ||||||
Depreciation of property, plant and equipment
|
14,114 | 11,112 | ||||||
Amortization of broadcast licenses and other intangibles (Note 3)
|
5,149 | 5,687 | ||||||
Cost of revenues
|
134,329 | 106,520 | ||||||
Selling, general and administrative expenses
|
28,445 | 19,241 | ||||||
Impairment charge (Note 3)
|
- | 81,843 | ||||||
Operating loss
|
(19,133 | ) | (71,284 | ) | ||||
Interest income
|
653 | 736 | ||||||
Interest expense (Note 15)
|
(31,528 | ) | (21,428 | ) | ||||
Foreign currency exchange gain, net
|
9,557 | 37,054 | ||||||
Change in fair value of derivatives (Note 11)
|
(3,656 | ) | 6,130 | |||||
Other (expense) / income
|
(270 | ) | 104 | |||||
Loss from continuing operations before tax
|
(44,377 | ) | (48,688 | ) | ||||
Credit for income taxes
|
2,391 | 10,583 | ||||||
Loss from continuing operations
|
(41,986 | ) | (38,105 | ) | ||||
Discontinued operations, net of tax (Note 17)
|
(3,922 | ) | (8,835 | ) | ||||
Net Loss
|
(45,908 | ) | (46,940 | ) | ||||
Net loss attributable to noncontrolling interests
|
3,614 | 2,502 | ||||||
Net Loss attributable to CME Ltd.
|
$ | (42,294 | ) | $ | (44,438 | ) | ||
Net loss
|
(45,908 | ) | (46,940 | ) | ||||
Currency translation adjustment
|
(30,333 | ) | (192,860 | ) | ||||
Comprehensive loss
|
$ | (76,241 | ) | $ | (239,800 | ) | ||
Comprehensive loss attributable to noncontrolling interests
|
2,843 | 2,629 | ||||||
Comprehensive loss attributable to CME Ltd.
|
$ | (73,398 | ) | $ | (237,171 | ) |
For the Three Months Ended March 31,
|
||||||||
2010
|
2009
|
|||||||
PER SHARE DATA (Note 14):
|
||||||||
Net loss per share:
|
||||||||
Continuing operations - Basic
|
$ | (0.61 | ) | $ | (0.84 | ) | ||
Continuing operations - Diluted
|
(0.61 | ) | (0.84 | ) | ||||
Discontinued operations – Basic
|
(0.06 | ) | (0.21 | ) | ||||
Discontinued operations - Diluted
|
(0.06 | ) | (0.21 | ) | ||||
Net loss attributable to CME Ltd. – Basic
|
(0.67 | ) | (1.05 | ) | ||||
Net loss attributable to CME Ltd. – Diluted
|
$ | (0.67 | ) | $ | (1.05 | ) | ||
Weighted average common shares used in computing per share amounts (000’s):
|
||||||||
Basic
|
63,537 | 42,337 | ||||||
Diluted
|
63,537 | 42,337 |
CME Ltd.
|
||||||||||||||||||||||||||||||||||||
Class A
Common Stock
|
Class B
Common Stock
|
Additional Paid-In Capital
|
Accumulated deficit
|
Accumulated Other Comprehensive Income
|
Noncontrolling Interest
|
Total Equity
|
||||||||||||||||||||||||||||||
Number of shares
|
Par value
|
Number of shares
|
Par value
|
|||||||||||||||||||||||||||||||||
BALANCE, December 31, 2009
|
56,046,176 | $ | 4,484 | 7,490,936 | $ | 599 | $ | 1,410,587 | $ | (333,993 | ) | $ | 95,912 | $ | (5,749 | ) | $ | 1,171,840 | ||||||||||||||||||
Stock-based compensation
|
- | - | - | - | 1,691 | - | - | - | 1,691 | |||||||||||||||||||||||||||
Dividends
|
- | - | - | - | - | - | - | (173 | ) | (173 | ) | |||||||||||||||||||||||||
Net loss
|
- | - | - | - | - | (42,294 | ) | - | (3,614 | ) | (45,908 | ) | ||||||||||||||||||||||||
Currency translation adjustment
|
- | - | - | - | - | - | (31,104 | ) | 771 | (30,333 | ) | |||||||||||||||||||||||||
BALANCE, March 31, 2010
|
56,046,176 | $ | 4,484 | 7,490,936 | $ | 599 | $ | 1,412,278 | $ | (376,287 | ) | $ | 64,808 | $ | (8,765 | ) | $ | 1,097,117 |
CME Ltd.
|
||||||||||||||||||||||||||||||||||||
Class A
Common Stock
|
Class B
Common Stock
|
Additional Paid-In Capital
|
Accumulated deficit
|
Accumulated Other Comprehensive Income
|
Noncontrolling Interest
|
Total Equity
|
||||||||||||||||||||||||||||||
Number of shares
|
Par value
|
Number of shares
|
Par value
|
|||||||||||||||||||||||||||||||||
BALANCE, December 31, 2008
|
36,024,273 | $ | 2,882 | 6,312,839 | $ | 505 | $ | 1,126,617 | $ | (236,836 | ) | $ | 202,090 | $ | 3,187 | $ | 1,098,445 | |||||||||||||||||||
Stock-based compensation
|
- | - | - | - | 1,663 | - | - | - | 1,663 | |||||||||||||||||||||||||||
Acquisition of noncontrolling interests
|
- | - | - | - | (23,173 | ) | - | - | - | (23,173 | ) | |||||||||||||||||||||||||
Net loss
|
- | - | - | - | - | (44,438 | ) | - | (2,502 | ) | (46,940 | ) | ||||||||||||||||||||||||
Currency translation adjustment
|
- | - | - | - | - | - | (192,733 | ) | (127 | ) | (192,860 | ) | ||||||||||||||||||||||||
BALANCE, March 31, 2009
|
36,024,273 | $ | 2,882 | 6,312,839 | $ | 505 | $ | 1,105,107 | $ | (281,274 | ) | $ | 9,357 | $ | 558 | $ | 837,135 |
For the Three Months Ended March 31,
|
||||||||
2010
|
2009
|
|||||||
CASH FLOWS FROM OPERATING ACTIVITIES:
|
||||||||
Net loss
|
$ | (45,908 | ) | $ | (46,940 | ) | ||
Adjustments to reconcile net loss to net cash (used in) / generated from operating activities:
|
||||||||
Loss from discontinued operations (Note 17)
|
3,922 | 8,835 | ||||||
Depreciation and amortization
|
80,764 | 55,337 | ||||||
Impairment charge (Note 3)
|
- | 81,843 | ||||||
Loss on disposal of fixed assets
|
103 | 258 | ||||||
Stock-based compensation (Note 13)
|
1,573 | 1,547 | ||||||
Change in fair value of derivatives (Note 11)
|
3,656 | (6,130 | ) | |||||
Foreign currency exchange gain, net
|
(9,557 | ) | (37,054 | ) | ||||
Net change in (net of effects of acquisitions and disposals of businesses):
|
||||||||
Accounts receivable
|
17,060 | 45,769 | ||||||
Program rights
|
(50,304 | ) | (50,665 | ) | ||||
Other assets
|
9,024 | (21,137 | ) | |||||
Accounts payable and accrued liabilities
|
(32,290 | ) | 26,226 | |||||
Income taxes payable
|
(3,472 | ) | (3,900 | ) | ||||
Deferred taxes
|
(3,275 | ) | (10,823 | ) | ||||
VAT and other taxes payable
|
2,930 | (8,738 | ) | |||||
Net cash (used in) / generated from continuing operating activities
|
(25,774 | ) | 34,428 | |||||
CASH FLOWS FROM INVESTING ACTIVITIES:
|
||||||||
Purchase of property, plant and equipment
|
(7,785 | ) | (7,438 | ) | ||||
Disposal of property, plant and equipment
|
- | 661 | ||||||
Investments in subsidiaries and unconsolidated affiliates
|
(142 | ) | (22,776 | ) | ||||
Net cash used in continuing investing activities
|
(7,927 | ) | (29,553 | ) | ||||
CASH FLOWS FROM FINANCING ACTIVITIES:
|
||||||||
Proceeds from credit facilities
|
148,331 | 260,806 | ||||||
Payment of credit facilities and capital leases
|
(81,928 | ) | (36,316 | ) | ||||
Excess tax benefits from share-based payment arrangements
|
177 | 116 | ||||||
Net cash received from continuing financing activities
|
66,580 | 224,606 | ||||||
NET CASH USED IN DISCONTINUED OPERATIONS – OPERATING ACTIVITIES
|
(5,692 | ) | (9,614 | ) | ||||
NET CASH USED IN DISCONTINUED OPERATIONS – INVESTING ACTIVITIES
|
(201 | ) | (380 | ) | ||||
NET CASH USED IN DISCONTINUED OPERATIONS – FINANCING ACTIVITIES
|
- | 164 | ||||||
Impact of exchange rate fluctuations on cash
|
(9,565 | ) | (15,725 | ) | ||||
Net increase in cash and cash equivalents
|
17,421 | 203,926 | ||||||
CASH AND CASH EQUIVALENTS, beginning of period
|
445,954 | 94,423 | ||||||
CASH AND CASH EQUIVALENTS, end of period
|
$ | 463,375 | $ | 298,349 |
Gross balance, December 31, 2009
|
Accumulated impairment losses
|
Balance, December 31, 2009
|
Additions/
Adjustments
|
Foreign currency
|
Balance, March 31, 2010
|
Accumulated impairment losses
|
Gross balance, March 31, 2010
|
|||||||||||||||||||||||||
Broadcast segment:
|
||||||||||||||||||||||||||||||||
Bulgaria
|
$ | 64,044 | $ | (64,044 | ) | $ | - | $ | - | $ | - | $ | - | $ | (64,044 | ) | $ | 64,044 | ||||||||||||||
Croatia
|
11,211 | (10,454 | ) | 757 | - | (42 | ) | 715 | (10,454 | ) | 11,169 | |||||||||||||||||||||
Czech Republic
|
936,268 | - | 936,268 | - | (24,811 | ) | 911,457 | - | 911,457 | |||||||||||||||||||||||
Romania
|
69,825 | - | 69,825 | - | (2,435 | ) | 67,390 | - | 67,390 | |||||||||||||||||||||||
Slovak Republic
|
62,990 | - | 62,990 | - | (4,053 | ) | 58,937 | - | 58,937 | |||||||||||||||||||||||
Slovenia
|
20,398 | - | 20,398 | - | (1,313 | ) | 19,085 | - | 19,085 | |||||||||||||||||||||||
Media Pro
Entertainment segment:
|
||||||||||||||||||||||||||||||||
Fiction (1)
|
18,537 | - | 18,537 | (128 | ) | (629 | ) | 17,780 | - | 17,780 | ||||||||||||||||||||||
Production services (1)
|
9,950 | - | 9,950 | - | (360 | ) | 9,590 | - | 9,590 | |||||||||||||||||||||||
Distribution and
Exhibition (1)
|
17,548 | - | 17,548 | - | (634 | ) | 16,914 | - | 16,914 | |||||||||||||||||||||||
Total
|
$ | 1,210,771 | $ | (74,498 | ) | $ | 1,136,273 | $ | (128 | ) | $ | (34,277 | ) | $ | 1 101,868 | $ | (74,498 | ) | $ | 1,176,366 |
Indefinite-Lived Broadcast Licenses
|
Amortized Broadcast Licenses
|
Trademarks
|
Customer Relationships
|
Other
|
Total
|
|||||||||||||||||||
Balance, December 31, 2009
|
$ | 58,506 | $ | 152,488 | $ | 74,580 | $ | 61,377 | $ | 6,292 | $ | 353,243 | ||||||||||||
Additions
|
- | - | - | - | - | - | ||||||||||||||||||
Amortization
|
- | (2,584 | ) | (385 | ) | (1,895 | ) | (285 | ) | (5,149 | ) | |||||||||||||
Foreign currency movements
|
(2,288 | ) | (4,383 | ) | (2,584 | ) | (3,225 | ) | (177 | ) | (12,657 | ) | ||||||||||||
Balance, March 31, 2010
|
$ | 56,218 | $ | 145,521 | $ | 71,611 | $ | 56,257 | $ | 5,830 | $ | 335,437 |
March 31, 2010
|
December 31, 2009
|
|||||||
Gross value
|
$ | 391,019 | $ | 405,140 | ||||
Accumulated amortization
|
(111,800 | ) | (110,403 | ) | ||||
Net book value of amortized intangible assets
|
$ | 279,219 | $ | 294,737 | ||||
Indefinite-lived broadcast licenses
|
56,218 | 58,506 | ||||||
Total broadcast licenses and other intangible assets, net
|
$ | 335,437 | $ | 353,243 |
Amortized Trademarks
|
Amortized Broadcast Licenses
|
Other Intangible Assets
|
Other Assets
|
Total
|
||||||||||||||||
Bulgaria
|
$ | 76 | $ | 75,788 | $ | 4,882 | $ | 1,097 | $ | 81,843 |
Carrying Value
|
Fair Value
|
|||||||||||||||
March 31, 2010
|
December 31, 2009
|
March 31, 2010
|
December 31, 2009
|
|||||||||||||
EUR 440.0 million 11.625% Senior Notes
|
$ | 598,212 | $ | 639,515 | $ | 646,453 | $ | 608,510 | ||||||||
EUR 150.0 million Floating Rate Senior Notes
|
202,185 | 216,090 | 169,835 | 153,424 | ||||||||||||
USD 475.0 million 3.50% Senior Convertible Notes
|
403,321 | 398,323 | 409,094 | 369,883 | ||||||||||||
$ | 1,203,718 | $ | 1,253,928 | $ | 1,225,382 | $ | 1,131,817 |
From:
|
Fixed Rate Notes
Redemption Price
|
|||
September 15, 2013 to September 14, 2014
|
105.813 | % | ||
September 15, 2014 to September 14, 2015
|
102.906 | % | ||
September 15, 2015 and thereafter
|
100.000 | % |
Stock price
|
Shares issued on conversion of Convertible Notes
|
Shares received on exercise of capped call options
|
Net shares issued
|
Value of shares issued (US$ ‘000)
|
|||||||||||||
$105.00 and below
|
$ | - | $ | - | $ | - | $ | - | |||||||||
110.00 | (205,628 | ) | 133,658 | (71,970 | ) | (7,917 | ) | ||||||||||
120.00 | (565,476 | ) | 367,559 | (197,917 | ) | (23,750 | ) | ||||||||||
130.00 | (869,963 | ) | 565,475 | (304,488 | ) | (39,583 | ) | ||||||||||
140.00 | (1,130,951 | ) | 735,118 | (395,833 | ) | (55,417 | ) | ||||||||||
151.20 | (1,382,274 | ) | 898,478 | (483,796 | ) | (73,150 | ) | ||||||||||
$ 200.00 | (2,148,807 | ) | 679,248 | (1,469,559 | ) | $ | (293,912 | ) |
Principal amount of liability component
|
Unamortized discount
|
Net carrying value
|
Equity Component
|
|||||||||||||
BALANCE, December 31, 2009
|
$ | (475,000 | ) | $ | 76,677 | $ | (398,323 | ) | $ | 110,752 | ||||||
Amortization of debt issuance discount for the three months ended March 31, 2010
|
- | (4,998 | ) | (4,998 | ) | - | ||||||||||
BALANCE, March 31, 2010
|
$ | (475,000 | ) | $ | 71,679 | $ | (403,321 | ) | $ | 110,752 |
March 31, 2010
|
December 31, 2009
|
|||||||
Third-party customers
|
$ | 167,329 | $ | 192,906 | ||||
Less allowance for bad debts and credit notes
|
(12,526 | ) | (13,201 | ) | ||||
Related parties
|
2,317 | 2,170 | ||||||
Less allowance for bad debts and credit notes
|
(1,079 | ) | (892 | ) | ||||
Total accounts receivable
|
$ | 156,041 | $ | 180,983 |
March 31, 2010
|
December 31, 2009
|
|||||||
Current:
|
||||||||
Prepaid program rights
|
$ | 42,713 | $ | 44,219 | ||||
Productions in progress
|
6,945 | 12,234 | ||||||
Other prepaid expenses
|
9,835 | 9,431 | ||||||
Income taxes recoverable
|
10,434 | 7,426 | ||||||
Deferred tax
|
6,607 | 4,948 | ||||||
Capitalized debt costs
|
5,636 | 5,591 | ||||||
VAT recoverable
|
3,633 | 6,625 | ||||||
Inventory
|
1,609 | 1,555 | ||||||
Other
|
990 | 1,178 | ||||||
Total other current assets
|
$ | 88,402 | $ | 93,207 | ||||
March 31, 2010
|
December 31, 2009
|
|||||||
Non-current:
|
||||||||
Capitalized debt costs
|
$ | 21,571 | $ | 22,816 | ||||
Deferred tax
|
7,473 | 10,977 | ||||||
Productions in progress
|
2,233 | 7,737 | ||||||
Other
|
2,791 | 2,969 | ||||||
Total other non-current assets
|
$ | 34,068 | $ | 44,499 |
March 31, 2010
|
December 31, 2009
|
|||||||
Land and buildings
|
$ | 163,964 | $ | 169,568 | ||||
Machinery, fixtures and equipment
|
199,573 | 206,954 | ||||||
Other equipment
|
32,295 | 33,260 | ||||||
Software licenses
|
37,194 | 37,176 | ||||||
Construction in progress
|
12,271 | 13,211 | ||||||
Total cost
|
$ | 445,297 | $ | 460,169 | ||||
Less: Accumulated depreciation
|
(189,231 | ) | (185,459 | ) | ||||
Total net book value
|
$ | 256,066 | $ | 274,710 | ||||
Assets held under capital leases (included in the above)
|
||||||||
Land and buildings
|
$ | 5,688 | $ | 6,079 | ||||
Machinery, fixtures and equipment
|
2,923 | 3,927 | ||||||
Total cost
|
8,611 | 10,006 | ||||||
Less: Accumulated depreciation
|
(1,882 | ) | (2,180 | ) | ||||
Net book value
|
$ | 6,729 | $ | 7,826 |
March 31, 2010
|
December 31, 2009
|
|||||||
Accounts payable
|
$ | 35,983 | $ | 42,854 | ||||
Programming liabilities
|
65,426 | 58,807 | ||||||
Duties and other taxes payable
|
18,504 | 18,927 | ||||||
Accrued staff costs
|
13,347 | 17,356 | ||||||
Accrued interest payable
|
5,584 | 26,686 | ||||||
Income taxes payable
|
3,996 | 3,895 | ||||||
Accrued production costs
|
6,563 | 7,439 | ||||||
Accrued legal contingencies
|
1,683 | 625 | ||||||
Accrued legal and professional fees
|
808 | 964 | ||||||
Authors’ rights
|
7,114 | 4,751 | ||||||
Other accrued liabilities
|
18,781 | 16,871 | ||||||
Total accounts payable and accrued liabilities
|
$ | 177,789 | $ | 199,175 |
March 31, 2010
|
December 31, 2009
|
||||||||
Credit facilities
|
(a) – (g)
|
$ | 182,812 | $ | 117,991 | ||||
Capital leases
|
5,266 | 5,949 | |||||||
Total credit facilities and capital leases
|
$ | 188,078 | $ | 123,940 | |||||
Less current maturities
|
(56,482 | ) | (117,910 | ) | |||||
Total non-current credit facilities and capital leases
|
$ | 131,596 | $ | 6,030 |
2010
|
$ | 55,279 | ||
2011
|
44,729 | |||
2012
|
81,620 | |||
2013
|
403,321 | |||
2014
|
202,646 | |||
2015 and thereafter
|
598,935 | |||
Total
|
$ | 1,386,530 |
2010
|
$ | 974 | ||
2011
|
1,211 | |||
2012
|
842 | |||
2013
|
550 | |||
2014
|
1,862 | |||
2015 and thereafter
|
579 | |||
$ | 6,018 | |||
Less: amount representing interest
|
(752 | ) | ||
Present value of net minimum lease payments
|
$ | 5,266 |
March 31, 2010
|
December 31, 2009
|
|||||||
Current:
|
||||||||
Payment on account - Ukraine sale
|
$ | 30,000 | $ | - | ||||
Deferred revenue
|
15,999 | 7,765 | ||||||
Consideration payable
|
1,431 | 1,614 | ||||||
Deferred tax
|
2,872 | 3,319 | ||||||
Other
|
312 | 142 | ||||||
Total other current liabilities
|
$ | 50,614 | $ | 12,840 | ||||
March 31, 2010
|
December 31, 2009
|
|||||||
Non-current:
|
||||||||
Deferred tax
|
$ | 65,738 | $ | 72,715 | ||||
Program rights
|
5,325 | 6,876 | ||||||
Fair value of derivatives
|
12,231 | 8,567 | ||||||
Income taxes payable
|
234 | 507 | ||||||
Other
|
191 | 206 | ||||||
Total other non-current liabilities
|
$ | 83,719 | $ | 88,871 |
Level 1
|
Unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted instruments.
|
Level 2
|
Quoted prices in markets that are not considered to be active or financial instruments for which all significant inputs are observable, either directly or indirectly.
|
Level 3
|
Prices or valuations that require inputs that are both significant to the fair value measurement and unobservable.
|
For the Three Months Ended March 31,
|
||||||||
2010
|
2009
|
|||||||
Stock-based compensation charged
|
$ | 1,573 | $ | 1,547 | ||||
Income tax benefit recognized
|
81 | 113 |
Date of Option Grant
|
Number of Options Granted
|
Risk-free interest rate (%)
|
Expected term (years)
|
Expected volatility
(%)
|
Fair value (US$/share)
|
Exercise Price (US$/share)
|
||||||||||||||||||
March 1, 2010
|
125,000 | 2.28 | 5.25 | 54.6 | 13.41 | 26.80 | ||||||||||||||||||
March 16, 2010
|
150,000 | 2.37 | 5.25 | 54.6 | 14.91 | 29.73 |
Shares
|
Weighted Average Exercise Price per Share
|
Weighted Average Remaining Contractual Term (years)
|
Aggregate Intrinsic Value
(US$)
|
|||||||||||||
Outstanding at January 1, 2010
|
2,000,750 | $ | 39.59 | 5.24 | $ | 5,645 | ||||||||||
Granted
|
275,000 | 28.40 | - | - | ||||||||||||
Forfeited
|
(53,750 | ) | 44.23 | - | - | |||||||||||
Outstanding at March 31, 2010
|
2,222,000 | $ | 38.09 | 5.36 | $ | 12,764 | ||||||||||
Vested or expected to vest
|
2,125,544 | 38.42 | 5.33 | 12,004 | ||||||||||||
Exercisable at March 31, 2010
|
1,072,375 | $ | 47.42 | 4.30 | $ | 5,018 |
For the Three Months Ended March 31,
|
||||||||
2010
|
2009
|
|||||||
Loss from continuing operations attributable to CME Ltd.
|
$ | (38,372 | ) | $ | (35,603 | ) | ||
Loss from discontinued operations
|
(3,922 | ) | (8,835 | ) | ||||
Net loss attributable to CME Ltd.
|
$ | (42,294 | ) | $ | (44,438 | ) | ||
Weighted average outstanding shares of common stock (basic and diluted) (000’s)
|
63,537 | 42,337 | ||||||
Net loss per share:
|
||||||||
Basic
|
$ | (0.67 | ) | $ | (1.05 | ) | ||
Diluted
|
$ | (0.67 | ) | $ | (1.05 | ) |
For the Three Months Ended March 31,
|
||||||||
2010
|
2009
|
|||||||
Interest on Senior Notes
|
$ | 18,824 | $ | 9,408 | ||||
Interest on Convertible Notes
|
4,156 | 4,156 | ||||||
Interest on capital leases
|
65 | 85 | ||||||
Other interest and fees
|
2,104 | 2,091 | ||||||
$ | 25,149 | $ | 15,740 | |||||
Amortization of capitalized debt issuance costs
|
1,381 | 1,130 | ||||||
Amortization of issuance discount on Convertible Notes
|
4,998 | 4,558 | ||||||
$ | 6,379 | $ | 5,688 | |||||
Total interest expense
|
$ | 31,528 | $ | 21,428 |
•
|
foreign currency exchange gains and losses;
|
•
|
change in fair value of derivatives;
|
•
|
stock-based compensation; and
|
•
|
certain unusual or infrequent items (e.g. impairments of assets or investments).
|
For the Three Months Ended March 31,
|
||||||||
Net Revenues
|
2010
|
2009
|
||||||
Broadcast:
|
||||||||
Bulgaria
|
$ | 940 | $ | 595 | ||||
Croatia
|
11,725 | 10,080 | ||||||
Czech Republic
|
54,300 | 55,456 | ||||||
Romania
|
36,547 | 35,521 | ||||||
Slovak Republic
|
18,090 | 20,462 | ||||||
Slovenia
|
13,823 | 12,411 | ||||||
Total Broadcast
|
$ | 135,425 | $ | 134,525 | ||||
New Media
|
$ | 2,021 | $ | 1,757 | ||||
Media Pro Entertainment
|
$ | 28,043 | $ | 14,411 | ||||
Central
|
- | - | ||||||
Elimination
|
(21,848 | ) | (14,373 | ) | ||||
Total Net Revenues
|
$ | 143,641 | $ | 136,320 |
For the Three Months Ended March 31,
|
||||||||
EBITDA
|
2010
|
2009
|
||||||
Broadcast:
|
||||||||
Bulgaria
|
$ | (9,070 | ) | $ | (6,415 | ) | ||
Croatia
|
881 | 132 | ||||||
Czech Republic
|
22,184 | 25,287 | ||||||
Romania
|
4,529 | 9,774 | ||||||
Slovak Republic
|
(3,305 | ) | 5,899 | |||||
Slovenia
|
3,084 | 3,011 | ||||||
Divisional costs
|
(486 | ) | - | |||||
Total Broadcast
|
$ | 17,817 | $ | 37,688 | ||||
New Media
|
$ | (3,384 | ) | $ | (1,564 | ) | ||
Media Pro Entertainment
|
$ | (2,033 | ) | $ | (1,437 | ) | ||
Central
|
(10,812 | ) | (4,259 | ) | ||||
Elimination
|
(747 | ) | (2,682 | ) | ||||
Total EBITDA
|
$ | 841 | $ | 27,746 | ||||
Reconciliation to Consolidated Statement of Operations:
|
||||||||
Loss from continuing operations
|
$ | (41,986 | ) | $ | (38,105 | ) | ||
Income tax credit
|
(2,391 | ) | (10,583 | ) | ||||
Other expense / (income)
|
270 | (104 | ) | |||||
Change in fair value of derivatives
|
3,656 | (6,130 | ) | |||||
Foreign currency exchange gain, net
|
(9,557 | ) | (37,054 | ) | ||||
Interest expense, net
|
30,875 | 20,692 | ||||||
Operating loss
|
$ | (19,133 | ) | $ | (71,284 | ) | ||
Depreciation of property, plant and equipment
|
14,825 | 11,500 | ||||||
Amortization of intangible assets
|
5,149 | 5,687 | ||||||
Impairment
|
- | 81,843 | ||||||
$ | 841 | $ | 27,746 |
March 31, 2010
|
March 31, 2009
|
|||||||
Revenues
|
$ | 16,888 | $ | 4,951 | ||||
Cost of Revenues
|
(19,473 | ) | (15,812 | ) | ||||
Selling, general and administrative expenses
|
(2,223 | ) | (2,603 | ) | ||||
Operating loss
|
(4,808 | ) | (13,464 | ) | ||||
Foreign exchange gain
|
891 | 2,211 | ||||||
Other income / (expense)
|
25 | (2 | ) | |||||
Loss before tax
|
(3,892 | ) | (11,255 | ) | ||||
(Provision) / credit for income tax
|
(30 | ) | 2,420 | |||||
Loss from discontinued operations
|
$ | (3,922 | ) | $ | (8,835 | ) |
Total
|
Less than 1 year
|
1-3 years
|
3-5 years
|
More than 5 years
|
||||||||||||||||
Programming Rights
|
$ |
452,028
|
$ |
110,158
|
$ |
268,565
|
$ |
69,956
|
$ |
3,349
|
March 31, 2010
|
||||
2010
|
$ | 4,740 | ||
2011
|
5,749 | |||
2012
|
5,391 | |||
2013
|
6,468 | |||
2014
|
3,999 | |||
2015 and thereafter
|
11,549 | |||
Total
|
$ | 37,896 |
Three months ended March 31, 2010
|
Three months ended March 31, 2009
|
|||||||
(US$ 000’s)
|
||||||||
Purchases of programming and services
|
$ | 1,292 | $ | 9,058 | ||||
Sales
|
$ | 333 | $ | 370 |
As at March 31, 2010
|
As at December 31, 2009
|
|||||||
(US$ 000’s)
|
||||||||
Accounts payable
|
$ | 886 | $ | 403 | ||||
Accounts receivable
|
$ | 1,447 | $ | 1,533 |
Three months ended March 31, 2010
|
Three months ended March 31, 2009
|
|||||||
(US$ 000’s)
|
||||||||
Purchases of programming
|
$ | 2,285 | $ | - |
As at March 31, 2010
|
As at December 31, 2009
|
|||||||
Accounts payable
|
$ | 40,116 | $ | 39,085 |
Issuer and Restricted subsidiaries
|
Unrestricted Subsidiaries
|
Inter-group eliminations
|
Total
|
|||||||||||||
Consolidated Statement of Operations:
|
||||||||||||||||
For the Three Months Ended March 31, 2010
|
||||||||||||||||
Net revenues
|
$ | 143,123 | $ | 954 | $ | (436 | ) | $ | 143,641 | |||||||
Depreciation of property, plant and equipment
|
13,220 | 894 | - | 14,114 | ||||||||||||
Amortization of broadcast licenses and other intangibles
|
5,149 | - | - | 5,149 | ||||||||||||
Operating (loss)
|
(9,083 | ) | (10,035 | ) | (15 | ) | (19,133 | ) | ||||||||
Net (loss) attributable to CME Ltd.
|
$ | (26,937 | ) | $ | (15,342 | ) | $ | (15 | ) | $ | (42,294 | ) | ||||
Consolidated Balance Sheet:
|
||||||||||||||||
As at March 31, 2010
|
||||||||||||||||
Cash and cash equivalents
|
$ | 252,311 | $ | 211,064 | $ | - | $ | 463,375 | ||||||||
Third Party Debt (1)
|
1,391,203 | 593 | - | 1,391,796 | ||||||||||||
Total assets
|
3,345,534 | 319,966 | (834,977 | ) | 2,830,523 | |||||||||||
Total CME Ltd. Equity
|
$ | 1,635,216 | $ | 182,887 | $ | (712,221 | ) | $ | 1,105,882 | |||||||
(1) Third party debt is defined as credit facilities and capital leases or Senior Debt with entities that are not part of the CME Ltd. consolidated group.
|
I.
|
Forward-looking Statements
|
II.
|
Overview
|
III.
|
Our Business
|
IV.
|
Analysis of the Results of Operations and Financial Position
|
V.
|
Liquidity and Capital Resources
|
VI.
|
Critical Accounting Policies and Estimates
|
For the Three Months Ended March 31,
(US$ 000's)
|
||||||||||||
2010
|
2009
|
Movement
|
||||||||||
Net revenues
|
$ | 143,641 | $ | 136,320 | 5.4 | % | ||||||
Cost of revenues
|
(134,329 | ) | (106,520 | ) | 26.1 | % | ||||||
Selling, general and administrative expenses
|
(28, 445 | ) | (19,241 | ) | 47.8 | % | ||||||
Impairment charge
|
- | (81,843 | ) |
Nm
(3)
|
||||||||
Operating loss
|
(19,133 | ) | (71,284 | ) | 73.2 | % | ||||||
Net loss
|
$ | (45,908 | ) | $ | (46,940 | ) | (2.2 | )% | ||||
Net cash (used in) / generated by continuing operating activities
|
$ | (25,774 | ) | $ | 34,428 | (174.9 | )% |
•
|
foreign currency exchange gains and losses;
|
•
|
change in fair value of derivatives;
|
•
|
stock-based compensation; and
|
•
|
certain unusual or infrequent items (e.g. impairments of assets or investments).
|
EBITDA
|
||||||||||||||||
For the Three Months Ended March 31, (US$ 000's)
|
||||||||||||||||
Movement
|
||||||||||||||||
2010
|
2009
|
% Act
(1)
|
% Lfl
(2)
|
|||||||||||||
Broadcast:
|
||||||||||||||||
Bulgaria
|
$ | (9,070 | ) | $ | (6,415 | ) | (41.4 | )% |
(35.8
|
)% | ||||||
Croatia
|
881 | 132 |
Nm
(3)
|
Nm
(3)
|
||||||||||||
Czech Republic
|
22,184 | 25,287 | (12.3 | ) % | (22.2 | )% | ||||||||||
Romania
|
4,529 | 9,774 | (53.7 | ) % | (57.9 | )% | ||||||||||
Slovak Republic
|
(3,305 | ) | 5,899 | (156.0 | ) % | (153.7 | )% | |||||||||
Slovenia
|
3,084 |
3,011
|
2.4
|
% |
(1.8
|
)% | ||||||||||
Divisional Operating Costs
|
(486 | ) | - |
Nm
(3)
|
Nm
(3)
|
|||||||||||
Total Broadcast
|
$ | 17,817 | $ |
37,688
|
(52.7
|
) % |
(57.6
|
)% | ||||||||
New Media
|
(3,384 | ) | (1,564 | ) | (116.4 | )% | (99.5 | )% | ||||||||
Media Pro Entertainment
|
(2,033 | ) | (1,437 | ) | (41.5 | )% | (47.8 | )% | ||||||||
Central
|
(10,812 | ) | (4,259 | ) | (153.9 | )% | (151.4 | )% | ||||||||
Elimination
|
(747 | ) | (2,682 | ) | (72.1 | )% | (72.5 | )% | ||||||||
Consolidated EBITDA
|
$ | 841 | $ | 27,746 | (97.0 | ) % |
(97.4
|
)% | ||||||||
(1) Actual (“%Act”) reflects the percentage change between two periods.
|
||||||||||||||||
(2) Like for Like (“%Lfl”) or constant currency reflects the impact of applying the current period average exchange rates to the prior period revenues and costs.
|
||||||||||||||||
(3) Number is not meaningful.
|
·
|
On April 7, 2010, we completed the disposal of 100.0% of our Ukraine operations to Harley Trading Limited, a company beneficially owned by Igor Kolomoisky. We received cash consideration of US$ 300.0 million plus the reimbursement of US$ 8.0 million of cash operating expenses incurred between signing and closing (see Part I, Note 17, “Discontinued Operations” and Note 21, “Subsequent Events”).
|
·
|
On April 19, 2010, we acquired the bTV group in Bulgaria from News Corporation. The total cash consideration was US$ 400.0 million plus a payment of US$ 13.1 million for a working capital adjustment (see Part I, Note 21, “Subsequent Events”).
|
·
|
On February 23, 2010, David Sach was appointed as our Chief Financial Officer, effective March 1, 2010. Mr. Sach succeeds Charles Frank, who served as interim Chief Financial Officer from July 2009.
|
·
|
Ratings for our outstanding debt instruments and our corporate credit were upgraded as at April 26, 2010 (see V (d) “Cash Outlook”).
|
Impairment Charge
|
|||||||||
For the Three Months Ended March 31, (US$ 000's)
|
|||||||||
2010
|
2009
|
% Act
(1)
|
|||||||
Impairment charge
|
$ | - | $ | 81,483 |
Nm
(2)
|
||||
(1) Actual (“%Act”) reflects the percentage change between two years.
(2) Number is not meaningful.
|
Three months ended March 31,
|
||||||||
2010
|
2009
|
|||||||
Bulgarian Lev
|
6 | % | 5 | % | ||||
Croatian Kuna
|
6 | % | 8 | % | ||||
Czech Koruna
|
3 | % | 6 | % | ||||
Euro
|
7 | % | 5 | % | ||||
New Romanian Lei
|
4 | % | 12 | % |
Summarized Condensed Consolidated Balance Sheet (US$ 000’s)
|
||||||||||||
March 31, 2010
|
December 31, 2009
|
Movement
|
||||||||||
Current assets
|
$ | 903,173 | $ | 881,461 | 2.5 | % | ||||||
Non-current assets
|
1,927,350 | 1,991,326 | (3.2 | )% | ||||||||
Current liabilities
|
314,373 | 352,118 | (10.7 | )% | ||||||||
Non-current liabilities
|
1,419,033 | 1,348,829 | 5.2 | % | ||||||||
CME Ltd. shareholders’ equity
|
1,105,882 | 1,177,589 | (6.1 | )% | ||||||||
Noncontrolling interests in consolidated subsidiaries
|
$ | (8,765 | ) | $ | (5,749 | ) | 52.5 | % |
For the Three Months Ended March 31, (US$ 000's)
|
||||||||
2010
|
2009
|
|||||||
Net cash (used in) / generated from continuing operating activities
|
$ | (25,774 | ) | $ | 34,428 | |||
Net cash used in continuing investing activities
|
(7,927 | ) | (29,553 | ) | ||||
Net cash received from continuing financing activities
|
66,580
|
224,606 | ||||||
Net cash used in discontinued operations – operating activities
|
(5,692 | ) | (9,614 | ) | ||||
Net cash used in discontinued operations – investing activities
|
(201 | ) | (380 | ) | ||||
Net cash generated in discontinued operations – financing activities
|
- | 164 | ||||||
Impact of exchange rate fluctuations on cash
|
(9,565 | ) | (15,725 | ) | ||||
Net increase in cash and cash equivalents
|
$ | 17,421 | $ | 203,926 |
Payments due by period (US$ 000’s)
|
||||||||||||||||||||
Total
|
Less than 1 year
|
1-3 years
|
3-5 years
|
More than 5 years
|
||||||||||||||||
Long-Term Debt – principal
|
$ | 1,454,377 | $ | 55,279 | $ | 601,349 | $ | 202,646 | $ | 595,103 | ||||||||||
Long-Term Debt – interest (1)
|
482,036 | 86,267 | 190,735 | 150,452 | 54,582 | |||||||||||||||
Unconditional Purchase Obligations
|
468,397 | 124,413 | 269,622 | 71,013 | 3,349 | |||||||||||||||
Operating Leases
|
37,358 | 6,191 | 8,901 | 8,324 | 13,942 | |||||||||||||||
Capital Lease Obligations
|
6,018 | 1,145 | 2,067 | 923 | 1,883 | |||||||||||||||
Other Long-Term Obligations
|
460 | 460 | - | - | - | |||||||||||||||
ASC 740 Obligations
|
551 | 19 | 532 | - | - | |||||||||||||||
Consideration payable
|
1,431 | 1,431 | - | - | - | |||||||||||||||
Total Contractual Obligations
|
$ | 2,450,628 | $ | 275,205 | $ | 1,073,206 | $ | 433,358 | $ | 668,859 |
Senior and Convertible Notes
|
Corporate
|
Outlook
|
|
S&P
|
B
|
B
|
stable
|
Moody’s
|
B3
|
B2
|
stable
|
Expected Maturity Dates
|
2010
|
2011
|
2012
|
2013
|
2014
|
Thereafter
|
||||||||||||||||||
Total debt in Euro (000's)
|
||||||||||||||||||||||||
Fixed rate
|
- | - | - | - | - | 440,000 | ||||||||||||||||||
Average interest rate (%)
|
- | - | - | - | - | 11.63 | % | |||||||||||||||||
Variable rate
|
22,520 | - | - | - | 150,000 | - | ||||||||||||||||||
Average interest rate (%)
|
3.54 | % | - | - | - | 2.62 | % | - | ||||||||||||||||
Total debt in US$ (000's)
|
||||||||||||||||||||||||
Fixed rate
|
- | - | - | 475,000 | - | - | ||||||||||||||||||
Average interest rate (%)
|
- | - | - | 3.50 | % | - | - | |||||||||||||||||
Total debt in CZK (000's)
|
||||||||||||||||||||||||
Fixed rate
|
- | - | - | - | - | - | ||||||||||||||||||
Average interest rate (%)
|
- | - | - | - | - | - | ||||||||||||||||||
Variable rate
|
420,000 | 840,000 | 1,540,000 | - | - | - | ||||||||||||||||||
Average interest rate (%)
|
6.34 | % | 6.34 | % | 6.34 | % | - | - | - |
Yearly interest charge if interest rates increase by (US$ 000s):
|
||||||||||||||||||||||||||||
Value of Debt as at March 31, 2010
(US$ 000's)
|
Interest Rate as at March 31, 2010
|
Yearly Interest Charge
(US$ 000’s)
|
1 | % | 2 | % | 3 | % | 4 | % | 5 | % | ||||||||||||||||
23,254
(EUR 172.5 million)
|
2.73 | % | 6,358 | 8,683 | 11,009 | 13,334 | 15,659 | 17,985 | ||||||||||||||||||||
148,399
(CZK 2,800 million)
|
6.34
|
% |
9,409
|
10,893
|
12,377
|
13,861
|
15,344
|
16,828
|
||||||||||||||||||||
Total
|
15,767
|
19,576
|
23,386
|
27,195
|
31,003
|
34,813
|
10.1
|
Deed relating to the Sale and Purchase of Certain Media Interests in Bulgaria by and among News Netherlands B.V., News Corporation, CME Media Enterprises B.V. and Central European Media Enterprises Ltd. dated February 18, 2010.
|
|
10.2+
|
Contract of Employment between CME Media Services Limited and David Sach, dated February 26, 2010.
|
|
10.3+
|
Contract of Employment between CME Media Services Limited and Andrei Boncea, dated May 3, 2010.
|
|
10.4
|
Amended and Restated Sale and Purchase Agreement between CME Media Enterprises B.V., CME Development Financing B.V., Top Tone Media Holdings Limited and Krassimir Guergov, dated April 19, 2010.
|
|
10.5
|
Investment Agreement between CME Media Enterprises B.V. and Top Tone Media Holdings Limited, dated April 22, 2010.
|
|
10.6
|
Deed of Termination and Release between CME Media Enterprises B.V., Top Tone Media Holdings Limited and Krassimir Guergov, dated April 22, 2010.
|
|
10.7+
|
Contract of Employment between CME Media Services Limited and Petr Dvorak, dated May 1, 2010.
|
|
31.01
|
Certification of Principal Executive Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
31.02
|
Certification of Principal Financial Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
32.01
|
Certifications of Principal Executive Officer and Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (furnished only).
|
Date: May 5, 2010
|
/s/ David Sach
|
|
David Sach
|
||
Chief Financial Officer
|
||
(Principal Financial Officer)
|
Deed relating to the Sale and Purchase of Certain Media Interests in Bulgaria by and among News Netherlands B.V., News Corporation, CME Media Enterprises B.V. and Central European Media Enterprises Ltd. dated February 18, 2010.
|
||
Contract of Employment between CME Media Services Limited and David Sach, dated February 26, 2010.
|
||
Contract of Employment between CME Media Services Limited and Andrei Boncea, dated May 3, 2010.
|
||
Amended and Restated Sale and Purchase Agreement between CME Media Enterprises B.V., CME Development Financing B.V., Top Tone Media Holdings Limited and Krassimir Guergov, dated April 19, 2010.
|
||
Investment Agreement between CME Media Enterprises B.V. and Top Tone Media Holdings Limited, dated April 22, 2010.
|
||
Deed of Termination and Release between CME Media Enterprises B.V., Top Tone Media Holdings Limited and Krassimir Guergov, dated April 22, 2010.
|
||
Contract of Employment between CME Media Services Limited and Petr Dvorak, dated May 1, 2010.
|
||
Certification of Principal Executive Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
||
Certification of Principal Financial Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
||
Certifications of Principal Executive Officer and Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (furnished only).
|
CONTENTS
|
||
Clause
|
Page
|
|
1.
|
Interpretation
|
1
|
2.
|
Sale and Purchase of the Shares
|
2
|
3.
|
Conditions Precedent
|
2
|
4.
|
Pre-Completion Covenants
|
4
|
5.
|
Completion
|
7
|
6.
|
Consideration
|
7
|
7.
|
Adjustment to Consideration
|
7
|
8.
|
Post-Completion Covenants
|
9
|
9.
|
Protective Covenants
|
9
|
10.
|
Guarantees and Indemnities
|
10
|
11.
|
Seller's Warranties and Indemnities
|
10
|
12.
|
Purchaser's and Purchaser's Guarantor's Warranties
|
14
|
13.
|
Announcements and Confidentiality
|
15
|
14.
|
Guarantee by Purchaser's Guarantor
|
16
|
15.
|
Guarantee by Seller's Guarantor
|
17
|
16.
|
Bulgaria SPV
|
18
|
17.
|
Notices
|
18
|
18.
|
Assignments
|
20
|
19.
|
Gross Up and Withholding
|
20
|
20.
|
Payments
|
20
|
21.
|
General
|
21
|
22.
|
Whole Agreement
|
21
|
23.
|
Governing Law and Arbitration
|
22
|
24.
|
Language
|
22
|
Schedules
|
||
1.
|
The Companies
|
|
2.
|
The Subsidiaries
|
|
3.
|
Seller's Warranties
|
|
4.
|
Warranty Claims
|
|
5.
|
Completion
|
|
|
Part 1
Seller's Obligations
|
|
|
Part 2
Purchaser's Obligations
|
|
6.
|
Completion Statement
|
|
Part 1
Completion Statement
|
|
|
|
Part 2
Net Debt
|
|
|
Part 3
Working Capital
|
|
|
Part 4
Specific Policies to be used in preparing the Completion Statement
|
|
7.
|
Independent Accountants
|
|
8.
|
Interpretation
|
|
9.
|
Form of Deed of Adherence
|
|
Signatories
|
||
Appendix
|
||
1.
|
Agreed Form Documents
|
|
2.
|
Programming Schedule
|
|
3.
|
Monthly Estimate and Aggregate Costs and Expenses of the Target Companies (Excluding the Balkan Media Group)
|
|
(1)
|
NEWS NETHERLANDS B.V.
a company incorporated under the laws of the Netherlands entered into the Commercial register at the Chamber of Commerce of Amsterdam under company number 32055414 and whose registered address is at Pilotenstraat 39, 1059 CH Amsterdam, the Netherlands (the
Seller
);
|
(2)
|
NEWS CORPORATION
, a company incorporated under the laws of Delaware with its principal place of business at 1211 Avenue of Americas, New York, New York 10036, United States of America (the
Seller's Guarantor
);
|
(3)
|
CME MEDIA ENTERPRISES B.V.
,
a company organised under the laws of the Netherlands, registered under number 34349555 with the Trade Register and having its registered office at Dam 5B, Amsterdam JS, 1012, the Netherlands (the
Purchaser
); and
|
(4)
|
CENTRAL EUROPEAN MEDIA ENTERPRISES LTD.
, a company incorporated under the laws of Bermuda whose registered office is at Mintflower Place, 4th floor, Par-La-Ville Rd, Hamilton, Bermuda (the
Purchaser's Guarantor
),
|
(A)
|
The Seller is legally and beneficially entitled to all the issued share capital of Balkan News Corporation and to 75 per cent. of the issued share capital of TV Europe. The Seller is also able to procure the sale of the remaining 25 per cent. of the issued share capital of TV Europe. Further details of each company are set out at Schedule 1.
|
(B)
|
The Seller wishes to sell, or procure the sale of, and the Purchaser wishes to purchase all the issued share capital of Balkan News Corporation and TV Europe, in each case on the terms and subject to the conditions set out in this Agreement.
|
(C)
|
The Seller's Guarantor is the ultimate holding company of the Seller and is willing to guarantee the obligations of the Seller under this Agreement.
|
(D)
|
The Purchaser's Guarantor is the ultimate holding company of the Purchaser and is willing to guarantee the obligations of the Purchaser under this Agreement.
|
1.
|
INTERPRETATION
|
1.1
|
In addition to terms defined elsewhere in this Agreement, the definitions and other provisions in Schedule 8 apply throughout this Agreement, unless the contrary intention appears.
|
1.2
|
In this Agreement, unless the contrary intention appears, a reference to a clause, subclause, schedule or paragraph is a reference to a clause, subclause, schedule or paragraph of or to this Agreement. The schedules form part of this Agreement.
|
1.3
|
References to
this Agreement
shall be construed as references to this Deed.
|
1.4
|
The headings in this Agreement do not affect its interpretation.
|
2.
|
SALE AND PURCHASE OF THE SHARES
|
2.1
|
Subject to the terms and conditions of this Agreement, the Seller agrees to sell, or in the case of the Shares being sold by Novacorp Limited, procure the sale of, the Shares to the Purchaser and the Purchaser relying on the Seller's Warranties and indemnities contained in this Agreement and the Tax Deed, agrees to purchase the Shares.
|
2.2
|
The Shares shall be sold with full title guarantee free from Encumbrances and together with all rights attaching to them as at the date of this Agreement (including, without limitation, the right to receive all dividends and distributions declared, made or paid after Completion).
|
2.3
|
The Seller shall procure that on or prior to Completion any and all rights of pre-emption over the Shares are waived irrevocably by the persons entitled thereto.
|
2.4
|
The Purchaser shall not be obliged to complete the purchase of any of the Shares unless the purchase of all Shares is completed simultaneously.
|
2.5
|
The Consideration for the sale of the Shares shall be determined in accordance with clauses 6 and 7 of this Agreement.
|
3.
|
CONDITIONS PRECEDENT
|
3.1
|
The sale and purchase of the Shares is conditional upon (i) satisfaction or waiver of the condition set out in (a) below on or prior to the Long Stop Date; and (ii) that no event set out in (b) or (c) below has occurred of which the Purchaser has notified the Seller in writing and which remains outstanding or has not been remedied by the earlier of the Effective Time and the Long Stop Date (the
Conditions
):
|
|
(a)
|
the entry into effect of the written approval by the BCPC for the purchase of the Shares by the Purchaser;
|
|
(b)
|
no injunction, judgment, decision, order, decree or ruling of any nature of any court or by any Governmental Authority being outstanding or change in Applicable Law that prohibits the consummation of the transactions contemplated by this Agreement; and
|
|
(c)
|
no event has occurred which has or is reasonably likely to have a Material Adverse Effect which has not been remedied by the Seller within thirty (30) days of such event first occurring.
|
3.2
|
The Purchaser shall use all reasonable endeavours to ensure the satisfaction of the Condition set out in subclause 3.1(a).
|
3.3
|
Without prejudice to subclause 3.2, the Purchaser shall with the reasonable cooperation of the Seller procure that all Initial Notifications made to the BCPC shall be submitted not later than ten (10) Business Days following the date of this Agreement and shall further procure that all additional information and documents requested by the BCPC or any other relevant authority shall be provided and complied with promptly throughout the relevant notification process. Subject to Applicable Law, the Seller shall reasonably co-operate with and promptly provide such information regarding the businesses and affairs of any member of the Target Group as the Purchaser or the BCPC may require in connection with the notifications which the Purchaser is required to make to the BCPC and any supplementary information requested by the BCPC or the Purchaser (except in the case of information provided to the Purchaser, that in relation to any such information, business secrets and other confidential information may be redacted so long as the Seller acts reasonably in identifying such material for redaction). Save as required by the BCPC or Applicable Law, the Seller shall not without the prior written approval of the Purchaser communicate with the BCPC or make any filing, submission or notification to the BCPC in each case, in connection with the transactions contemplated by this Agreement. The Purchaser undertakes to include a request in the Initial Notifications made to the BCPC for the BCPC to permit immediate implementation of its written approval (to the extent that such approval is given).
|
3.4
|
For the purposes of subclause 3.3, each Party agrees to:
|
|
(a)
|
keep all other Parties promptly informed of communications with the BCPC (including with respect to the complaint filed by Balkan News Corporation with respect to CableTEL and Eurocom on 27 January 2010) by arranging and participating in a call which shall take place at least weekly from the date of this Agreement until satisfaction of the Condition set out in subclause 3.1(a) between representatives of the Seller and the Purchaser to provide information about any meetings or phone calls with the BCPC or any members of its administration;
|
|
(b)
|
give the other Parties reasonable notice of all material meetings and, where practicable to do so, all material telephone calls with the BCPC such that the other Parties (or the other Parties' advisers) may elect to participate in them (except to the extent that the BCPC expressly requests that a Party should not be present at the meeting); and
|
|
(c)
|
provide the other Parties with drafts of all material written communications intended to be sent to the BCPC, give the other Parties a reasonable opportunity where practicable to comment on them and provide the other Parties with final copies of all such communications (except that in relation to all disclosure under this subclause, business secrets and other confidential material may be redacted so long as the other Parties act reasonably in identifying such material for redaction).
|
3.5
|
Each Party shall use all reasonable endeavours to procure (so far as it is so able to procure) that the condition in subclause 3.1(a) is satisfied as soon as possible, but no later than 10 July 2010 (the
Long Stop Date
). If the Condition in subclause 3.1(a) is not satisfied on or before the Long Stop Date:
|
|
(a)
|
except for this subclause 3.5, clauses 1, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23 and 24 and the provisions of Schedule 8, all the provisions of this Agreement shall lapse and cease to have effect;
|
|
(b)
|
neither the lapsing of these provisions nor their ceasing to have effect shall affect any accrued rights or liabilities of any of the Parties in respect of damages for non performance of any obligation under this Agreement falling due for performance prior to such lapse or cessation; and
|
|
(c)
|
in the event that only the Condition in subclause 3.1(a) remains unsatisfied at the Long Stop Date, the Purchaser shall promptly pay to the Seller the sum of US$20,000,000.
|
3.6
|
The exclusive remedy of the Seller in respect of any claims of the Seller against the Purchaser pursuant to clauses 3.2, 3.3 or 3.4 of this Agreement shall be the payment of the sum of US$20,000,000 under subclause 3.5(c).
|
3.7
|
The maximum liability of the Purchaser in respect of any and all claims arising under this Agreement shall be limited to, in the aggregate, forty (40)% of the Consideration including any amount that may be available under subclauses 3.5(c) and 3.6 above.
|
3.8
|
The Purchaser shall keep the Seller fully informed and up to date with respect to its progress towards satisfaction of the Condition in subclause 3.1(a) and the Purchaser shall give written notice to the Seller of the satisfaction of the Condition in subclause 3.1(a) promptly on becoming aware of the same.
|
3.9
|
The Purchaser may at any time waive in whole or in part and conditionally or unconditionally the Condition set out in subclause 3.1(c) by notice in writing to the Seller.
|
4.
|
PRE-COMPLETION COVENANTS
|
4.1
|
Subject to subclause 4.2, until Completion, the Seller shall, to the extent permitted by Applicable Law (including but not limited to any competition law) procure that, except with the written consent of the Purchaser (such consent not to be unreasonably withheld or delayed), no member of the Target Group shall depart in any material respect from the ordinary and usual course of its day-to-day business.
|
4.2
|
Without prejudice to the generality of subclause 4.1, the Seller undertakes to procure that between the date of this Agreement and Completion each Target Group Company (other than Balkan Media Group):
|
|
(a)
|
shall take all reasonable steps to preserve and protect the assets necessary for the operation of the business of the Target Group Companies including preserving the validity of all Intellectual Property Rights owned or used by the Target Group in the operation of their businesses;
|
|
(b)
|
shall make all insurance claims in relation to the Target Group Company (other than Balkan Media Group) (i) as soon as reasonably practicable and (ii) in accordance with the requirements of the relevant policy;
|
|
(c)
|
shall not without the prior written consent of the Purchaser (such consent not to be unreasonably withheld or delayed):
|
|
(i)
|
subject to subclause 4.2(ix)(E), enter into, or exercise an option in relation to, or amend, any agreement or series of related agreements, or incur any commitment unless any such new agreement or series of related agreements, amendment or exercise of an option (A) is capable of being terminated on six months notice or less and (B) involves or may involve an amount of less than US$500,000;
|
|
(ii)
|
acquire or agree to acquire any share, shares or other interest in any company, partnership or other venture;
|
|
(iii)
|
except as contemplated by subclause 4.6(a), incur any additional borrowings or incur any other financial indebtedness other than those in the ordinary course of business;
|
|
(iv)
|
create, allot or issue any share capital or, other than as permitted by subclause 4.6(a), loan capital of any Target Group Company or any option to subscribe for the same;
|
|
(v)
|
repay, redeem or repurchase any share capital or, other than as permitted by subclause 4.6(a), loan capital of any Target Group Company (other than Balkan Media Group);
|
|
(vi)
|
except as contemplated by subclauses 4.6(b) and 4.6(c) declare, make or pay any dividend or other distribution to shareholders of any Target Group Company;
|
|
(vii)
|
take steps to procure payment by any debtor which is materially inconsistent with past practice;
|
|
(viii)
|
delay making payment to any trade creditors which is materially inconsistent with past practice;
|
|
(ix)
|
in relation to any Property:
|
|
(A)
|
carry out any material structural alteration or addition to, or materially effect any change of use of, such Property that would require the permission, approval or consent of a Governmental Authority in Bulgaria or a material amendment to an existing permission, approval or consent other than any protocol or act that is issued in the normal course of construction and is required by Applicable Law in Bulgaria other than where an alteration or addition or material change of use of any Property has been Fairly Disclosed in the Disclosure Letter;
|
|
(B)
|
terminate or serve any notice to terminate, surrender or accept any surrender of or waive the terms of any lease, tenancy or licence which is material in the context of the relevant Target Group Company;
|
|
(C)
|
enter into or vary any agreement, lease, tenancy, licence or other commitment which is material in the context of the relevant Target Group Company;
|
|
(D)
|
sell, convey, transfer, assign or charge any Property or grant any rights or easements over any Property or enter into any covenants or other Encumbrance affecting any Property or agree to do any of the foregoing;
|
|
(E)
|
incur any commitment with respect to any Property in excess of US$100,000.
|
|
(x)
|
save as required by Applicable Law:
|
|
(A)
|
make any material amendment to the terms and conditions of employment (including, without limitation, remuneration, pension entitlements and other benefits) of any Senior Employee (other than minor increases in the ordinary and usual course of business which the Seller shall notify to the Purchaser as soon as reasonably possible); or
|
|
(B)
|
engage or appoint any additional Senior Employee;
|
|
(xi)
|
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 undertaking in any such case other than in the ordinary and usual course of business;
|
|
(xii)
|
other than in relation to (A) any amount which becomes due following any audit with respect to Tax, or (B) any amount which falls due, up to an aggregate amount equal to US$100,000, with respect to Tax which relates to the period prior to Completion and except as required by Applicable Law, make, change or rescind any material claim or election relating to Tax; settle or compromise any material claim, action, litigation, proceeding, arbitration, investigation or audit with respect to Tax; make any material change to any of its methods, policies, principles or practices of Tax accounting or methods of reporting or claiming income, losses, or deductions for Tax purposes (including, without limitation, with respect to depreciation or amortisation); or amend any Tax Return in any material respect; request any ruling or clearance in relation to any Tax matter from any Tax Authority; enter into any agreement with any Tax Authority, or terminate or rescind any agreement with a Tax Authority that is in effect on the date of this Agreement; or prepare, file or submit, any Tax Return that is materially inconsistent with past practice; in each case to the extent that any of the foregoing could reasonably be expected to adversely affect the Purchaser, or any Target Group Company in a material manner following Completion.
|
4.3
|
Without prejudice to the generality of subclause 4.1, the Seller undertakes to procure that between the date of this Agreement and Completion, the Target Companies (other than Balkan Media Group):
|
|
(a)
|
shall not incur costs and expenses in an amount which is more than 20 per cent. greater than (i) the relevant monthly estimate; or (ii) the aggregate costs and expenses, both as set out in Appendix 3, without first consulting the Purchaser; and
|
|
(b)
|
other than in respect of Radiocompany C.J., shall use all reasonable endeavours to operate in accordance with the programming schedule appended to this Agreement.
|
4.4
|
The Seller shall procure that, between the date of this Agreement and Completion, the Escrow Account shall be established and that the Escrow Amount shall be paid into the Escrow Account.
|
4.5
|
Without prejudice to the generality of subclause 4.1 and to the extent permitted by Applicable Law (including but not limited to any competition law), prior to Completion the Seller shall procure that the Target Group Companies (excluding the Balkan Media Group) shall provide the Purchaser's auditors with the information that the Purchaser's auditors reasonably require for the purposes of preparing audited financial statements of the Target Group that are required under certain reporting regulations to which the Purchaser's Group is subject, provided that the obligations of the Seller under this subclause 4.5 shall not extend to providing information which is reasonably regarded as confidential to the activities of the Seller otherwise than in relation to the Target Group Companies.
|
4.6
|
Prior to Completion, the Seller or any member of the Seller's Group shall:
|
|
(a)
|
be entitled to enter into an inter-company loan with any member of the Target Group, provided that any such loan be repaid or settled prior to Completion (except any loan from Balkan News Corporation to Triada to fund the ordinary and usual course of Triada's day-to-day business);
|
|
(b)
|
be entitled to procure that Balkan News Corporation declares aggregate dividends payable in cash of no more than BGN 42,000,000, provided that any such dividends shall be paid in full prior to Completion;
|
|
(c)
|
procure that Balkan News Corporation declares dividends in specie to the Seller of the Consultant Loan and the RCJ Loan respectively, provided that any such dividends shall be made in full prior to Completion; and
|
|
(d)
|
procure that the Amendment Agreement shall be entered into by Balkan News Corporation and Twentieth Century Fox International Television, Inc.
|
4.7
|
Prior to Completion the Purchaser undertakes that, subject to subclause 4.5, no member of the Purchaser's Group or any of their employees, officers, directors, agents or advisors shall contact or approach any employee of any Target Group Company without the prior consent of the Seller.
|
4.8
|
The Seller agrees to provide the Purchaser's Guarantor or the Purchaser, as applicable, with such information as the Purchaser's Guarantor or the Purchaser determines to be reasonably necessary or appropriate to comply with applicable anti-money laundering laws, rules and regulations of the applicable jurisdictions, to respond to requests for information concerning the identity of the Purchaser's shareholders from any Governmental Authority within the applicable jurisdictions in connection with its anti-money laundering compliance procedures, or to update such information.
|
5.
|
COMPLETION
|
5.1
|
Except for execution of the Deed of Transfer which shall occur simultaneously in Amsterdam, the Netherlands, Completion shall take place at the offices of the Seller's Solicitors at 11 a.m. (London time) on the fourth Business Day after which the Condition in subclause 3.1(a) is satisfied or waived or at such other place, at such other time and/or on such other date as the Seller and the Purchaser may agree, provided that:
|
|
(a)
|
neither the Seller has notified the Purchaser nor the Purchaser has notified the Seller that any event has occurred as set out in subclause 3.1(b) which remains outstanding at the Effective Time; or
|
|
(b)
|
the Purchaser has not notified the Seller of any event which has a Material Adverse Effect (which has not been remedied in accordance with subclause 3.1(c) before the Effective Time).
|
5.2
|
At Completion:
|
|
(a)
|
the Seller shall observe and perform the provisions of Part 1 of Schedule 5; and
|
|
(b)
|
the Purchaser shall observe and perform the provisions of Part 2 of Schedule 5.
|
5.3
|
The Seller may waive some or all of the obligations of the Purchaser set out in Part 2 of Schedule 5 and the Purchaser may waive some or all of the obligations of the Seller set out in Part 1 of Schedule 5.
|
6.
|
CONSIDERATION
|
6.1
|
The consideration for the sale of the Shares and the covenants given by the Seller to the Purchaser in clause 9 of this Agreement shall be US$400 million in cash subject to any adjustments in clause 7 (the
Consideration
).
|
7.
|
ADJUSTMENT TO CONSIDERATION
|
7.1
|
The Seller shall give notice to the Purchaser not less than four (4) Business Days before Completion of the Estimated Net Debt (setting out the indebtedness of which it is constituted) presented in the format shown in Part 2 of Schedule 6 and Estimated Working Capital presented in the format shown in Part 3 of Schedule 6.
|
7.2
|
The amount of the Consideration payable at Completion (the
Closing Payment
) shall be adjusted as follows:
|
|
(a)
|
if the Estimated Net Debt exceeds zero, the amount of the Consideration shall be reduced by the amount by which the Estimated Net Debt exceeds zero;
|
|
(b)
|
if the Estimated Net Debt is less than zero, the Consideration shall be increased by the amount by which the Estimated Net Debt is less than zero;
|
|
(c)
|
if the Estimated Working Capital is less than the Normalised Working Capital, the Consideration shall be reduced by the amount by which the Estimated Working Capital is less than the Normalised Working Capital; and
|
|
(d)
|
if the Estimated Working Capital is more than the Normalised Working Capital, the Consideration shall be increased by the amount by which the Estimated Working Capital is more than the Normalised Working Capital.
|
7.3
|
The Closing Payment shall be adjusted (if necessary) after Completion within ten (10) Business Days of the Completion Statement being agreed in accordance with Schedule 6 and Schedule 7 as follows:
|
|
(a)
|
if the Actual Net Debt exceeds the Estimated Net Debt, the Closing Payment shall be reduced by the amount by which the Actual Net Debt exceeds the Estimated Net Debt;
|
|
(b)
|
if the Actual Net Debt is less than the Estimated Net Debt, the Closing Payment shall be increased by the amount by which the Actual Net Debt is less than the Estimated Net Debt;
|
|
(c)
|
if the Actual Working Capital is less than the Estimated Working Capital, the Closing Payment shall be reduced by the amount by which the Actual Working Capital is less than the Estimated Working Capital; and
|
|
(d)
|
if the Actual Working Capital exceeds the Estimated Working Capital, the Closing Payment shall be increased by the amount by which the Actual Working Capital exceeds the Estimated Working Capital.
|
7.4
|
Any reduction to be made to the Consideration under subclause 7.2 shall be offset against any increase in the Consideration under such subclause and any reduction to be made to the Closing Payment under subclause 7.3 shall be offset against any increase in the Closing Payment under such subclause.
|
7.5
|
Within two (2) Business Days of the last of the adjustments contemplated in subclauses 7.3 and 7.4 above being finalised, either the Seller shall repay to the Purchaser an amount equal to any decrease in the Closing Payment or the Purchaser shall pay to the Seller an amount equal to any increase in the Closing Payment as appropriate.
|
7.6
|
Any portions of the Closing Payment (including in relation to subclauses 7.2 and 7.3 above) which are calculated in BGN or any currencies other than US$ shall, prior to any payment being made, be converted into US$ using the closing mid-point rate as set out in the Financial Times first published on the Business Day prior to Completion (the
Converted Amount
), and shall be paid in accordance with this clause 7.
|
8.
|
POST-COMPLETION COVENANTS
|
8.1
|
Immediately following Completion, and no later than two (2) months after Completion, the Purchaser shall procure that no member of the Target Group:
|
|
(a)
|
uses or displays (including on or in its business stationery, documents, signs, promotional materials or website) any name, mark or logo which is the same as or similar to and is likely to be confused or associated with, any name, mark or logo which is valid and subsisting at Completion and which is owned by a member of the Seller's Group other than pursuant to a valid license or other approval by the Seller or any other member of the Seller's Group; or
|
|
(b)
|
represents that the Seller or any other member of the Seller's Group retains any connection with such member of the Target Group,
|
8.2
|
As soon as reasonably practicable (and, in any event, within fifteen (15) Business Days) after Completion, the Purchaser shall deliver to the Seller a certified copy of the articles of association of Balkan News Corporation and a certificate from the Bulgarian commercial register, reflecting the change of name of that Target Group Company so that there is no longer a reference to "News" or any other inference of any kind to the Seller.
|
9.
|
PROTECTIVE COVENANTS
|
9.1
|
In consideration for the agreement by the Purchaser to acquire the Shares, the Seller covenants with the Purchaser and each member of the Target Group that neither the Seller nor any member of the Seller's Group shall, for a period of 24 months after Completion:
|
|
(a)
|
carry on, be engaged in or hold any shares, partnership, consortium or joint venture interests, voting securities, equity linked securities or other economic participation rights or debt securities (
Economic Interests
) (or any interest in any Economic Interests) in any business which is of the same or similar type to the Target Group Companies now carried on and which is or is likely to be in competition with any part of the business of the Target Group Companies in Bulgaria;
|
|
(b)
|
induce or attempt to induce any person who is a Senior Employee of a member of the Target Group to leave the employment of that company or hire any person who is a Senior Employee of a member of the Target Group.
|
9.2
|
The restrictions in subclause 9.1(a) shall not:
|
|
(a)
|
prevent the Seller or any subsidiary of the Seller from holding shares or debentures in a listed company which confer not more than 5 per cent. of the votes which could normally be cast at a general meeting of that company;
|
|
(b)
|
apply (or as the case may be shall cease to apply) to the extent that the Seller or any subsidiary of the Seller after Completion acquires any company or business and, as a result of that acquisition, acquires a company or business which falls within the terms of subclause 9.1(a) (the
Relevant Interest
) provided that the Relevant Interest does not generate more than 10 per cent. of the revenues of the company or business acquired according to the latest financial statements of that company or business. If however the Relevant Interest generates more than 10 per cent. of the revenues of the company or business acquired according to the latest financial statements of that company or business, then the Seller or its relevant subsidiary shall divest the Relevant Interest within six months as from the date of the acquisition;
|
|
(c)
|
prevent (i) the continued operation of existing cable and pay television business of the Seller's Group or the operation of new cable or pay television channels owned or operated by the Seller's Group (provided that any such channel is based on a format distributed internationally); (ii) the continued operation of existing outdoor advertising business of the Seller's Group; (iii) the delivery of content to any other television provider in Bulgaria by the Seller's Group; (iv) the Seller or any member of the Seller' Group from operating a pay TV platform within Bulgaria; or (v) the Seller or any subsidiary or affiliate of the Seller from carrying on any other business or range of business carried on by it (other than the businesses of the Target Group Companies) at the date of this Agreement; or
|
|
(d)
|
prevent the Seller or any subsidiary of the Seller from publishing any general recruitment advertisement in any local or national newspaper or other publication or on any website, or from negotiating with any person who replies to any such advertisement or who initiates any contact with the Seller or any subsidiary of the Seller provided no member of the Seller's Group encourages any such person to initiate contact.
|
9.3
|
Subclause 9.1 may be enforced by each member of the Target Group against the Seller or any subsidiary of the Seller under the Contract (Rights of Third Parties) Act 1999. The provisions of subclause 9.1 may be varied by agreement between the Seller and the Purchaser (and the Purchaser may also release or compromise in whole or in part any liability in respect of rights or claims contemplated by subclause 9.1) without the consent of any subsidiary of the Seller or any member of the Target Group.
|
9.4
|
The Seller agrees that the restrictions contained in this clause 9 are no greater than is reasonable and necessary for the protection of the interests of the Purchaser and the Target Group but if any such restriction shall be held to be void but would be valid if deleted in part or reduced in application, such restriction shall apply with such deletion or modification as may be necessary to make it valid and enforceable.
|
10.
|
GUARANTEES AND INDEMNITIES
|
10.1
|
The Seller shall procure that on Completion each member of the Target Group is released in full from all guarantees and indemnities given by or binding upon that company in respect of any liability or obligation of any member of the Seller's Group and pending such release, the Seller shall indemnify the Target Group member against all liabilities under those guarantees and indemnities.
|
10.2
|
The Purchaser shall procure that as from Completion each member of the Seller's Group is released in full from all guarantees and indemnities which have been given by that member in respect of any liability or obligation of any member of the Target Group and pending such release the Purchaser shall indemnify that member against all liabilities under those guarantees and indemnities.
|
11.
|
SELLER'S WARRANTIES AND INDEMNITIES
|
11.1
|
The Seller warrants to the Purchaser that, except as Fairly Disclosed to the Purchaser in the Disclosure Letter, each of the statements set out in Schedule 3 is, subject to subclause 11.2, true and accurate at the date of this Agreement and will be true and accurate at Completion.
|
11.2
|
Subclause 11.1 shall apply as if:
|
|
(a)
|
none of the Seller's Warranties, other than those set out in paragraphs 1.15, 1.19 and 1.30 of Schedule 3, relate in any way to Intellectual Property Rights;
|
|
(b)
|
none of the Seller's Warranties, other than those set out in paragraphs 1.16, 1.19 and 1.30 of Schedule 3, relate in any way to IT Systems;
|
|
(c)
|
none of the Seller's Warranties, other than those set out in paragraphs 1.12, 1.13 and 1.19 of Schedule 3, relate in any way to the Properties or any of them;
|
|
(d)
|
none of the Seller's Warranties, other than those set out in paragraph 1.14 of Schedule 3, relate in any way to Environmental Matters; and
|
|
(e)
|
none of the Seller's Warranties, other than those set out in paragraphs 1.23 to 1.29 of Schedule 3, relate in any way to Taxation
|
11.3
|
The Seller's Warranties and any Warranty Claim shall be subject to the limitations and other provisions set out in subclauses 11.2 to 11.8 (inclusive), 11.10 to 11.14 (inclusive) and Schedule 4 (including for the avoidance of doubt, the limitations and other provisions incorporated by reference to the Tax Deed).
|
11.4
|
If after the signing of this Agreement:
|
|
(a)
|
the Seller shall become aware that any of the Seller's Warranties was untrue, inaccurate or misleading in any material respect as of the signing of this Agreement; or
|
|
(b)
|
any event shall occur or matter shall arise of which the Seller becomes aware which results or may result in any of the Seller's Warranties being untrue, inaccurate or misleading in any material aspect at Completion,
|
11.5
|
Any notification pursuant to subclause 11.4(a) shall not operate as a disclosure pursuant to subclause 11.1 of this Agreement and the Seller's Warranties shall not be subject to such notification.
|
11.6
|
Save in the case of dishonesty or fraud, the Seller undertakes to the Purchaser and to the Target Group Companies and their respective directors, officers and agents to waive any rights, remedies or claims which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by the Target Group Companies or their respective directors, officers or agents in connection with assisting the Seller in the giving of any Warranty or the preparation of the Disclosure Letter and the Tax Deed.
|
11.7
|
The Seller shall indemnify and keep indemnified the Purchaser from and against all costs, claims, demands, damages, expenses, penalties, fines, liabilities and losses, including a reduction in the cash generated by the Target Group Companies (other than Balkan Media Group) (collectively,
Losses
) whatsoever arising out of or in connection with any of the Target Broadcasting Licenses not having been validly issued or not being in full force and effect at Completion. The Purchaser and the Purchaser's Guarantor acknowledge and agree that the Purchaser shall only be entitled to bring a claim with respect to any of the Target Broadcasting Licenses not having been validly issued or not being in full force and effect at Completion pursuant to this subclause 11.7 and shall not be entitled to bring a Warranty Claim in respect of such matter.
|
11.8
|
The Purchaser shall not be entitled to bring any claim for Losses in respect of the indemnity set out in subclause 11.7 nor any Warranty Claim in respect of the matters referred to in subclause 11.7 following Completion if the Purchaser has actual knowledge on or before Completion that (i) the Target Broadcasting Licences have not been validly issued or are not in full force and effect at Completion or that the Target Broadcasting Licenses will not be or are not reasonably likely to be validly issued and in full force and effect at Completion (including, without limitation, to the extent the Purchaser receives notice of such event from the Seller); (ii) such fact or circumstance has or is reasonably likely to have a Material Adverse Effect; and (iii) the Purchaser elected not to serve a notice on the Seller in accordance with subclause 5.1(b) of this Agreement in connection with such event.
|
11.9
|
The Seller shall indemnify and keep indemnified the Purchaser from and against all Losses whatsoever arising out of or in connection with the Consultant or any person connected with the Consultant:
|
|
(a)
|
having any legal or beneficial ownership interest in, or any Encumbrance, voting or other rights over, any shares in the share capital of any Target Group Company (excluding Balkan Media Group and the shares in Radiocompany C.J. held by R1 OOD) which does not terminate on Completion;
|
|
(b)
|
having any legal or beneficial ownership interest in, any Encumbrance over or possession or control of any of the assets included in the Accounts or acquired by any of the Target Group Companies since the Accounts Date which does not cease or terminate as a result of Completion (excluding Balkan Media Group and the shares in Radiocompany C.J. held by R1 OOD);
|
|
(c)
|
being engaged in any litigation, arbitration or administrative proceeding involving any Target Group Company (excluding Balkan Media Group) which is in progress and which is material in relation to the Target Group (other than in relation to matters which are in the normal course of business of the Target Group Companies or matters which cease or terminate as a result of Completion);
|
|
(d)
|
so far as the Seller is aware, having any past, present or future charges, complaints, causes of action, demands or other claims of any nature whatsoever arising out of or relating to any contract or agreement between any Target Group Company (excluding Balkan Media Group) and the Consultant or any person connected with the Consultant (other than in relation to matters which are in the normal course of business of the Target Group Companies or will terminate with all outstanding liabilities and obligations fully settled at Completion);
|
|
(e)
|
being a party to any contract with any Target Group Company (other than Balkan Media Group) that:
|
|
(i)
|
is not on an arm's length basis;
|
|
(ii)
|
is of a long term nature that is unlikely to have been fully performed in accordance with its terms more than 12 months after the date on which it was entered into or undertaken (other than any such contract which is in the normal course of business of the Target Group Companies); and
|
|
(iii)
|
restricts the freedom of any Target Group Company to carry on its business from Completion in Bulgaria other than in respect of any contract or agreement which in the normal course of business between Balkan News Corporation and Piero 97 MA AD, the shareholders' agreement entered into between Balkan News Corporation and R1 OOD in respect of Radiocompany C.J. or the shareholders' agreement entered into between Balkan News Corporation and the other shareholders of Balkan Media Group in respect of Balkan Media Group.
|
11.10
|
The Purchaser and the Purchaser's Guarantor acknowledge and agree that the Purchaser shall only be entitled to bring a claim with respect to any of the matters referred to in subclause 11.9 pursuant to subclause 11.9 of this Agreement and shall not be entitled to bring any Warranty Claim in respect of any such matters.
|
11.11
|
The liability of the Seller in respect of the indemnities set out in subclauses 11.7 and 11.9 shall terminate on the first anniversary after Completion except in respect of any claim of which written notice is given to the Seller specifying the matter or circumstances in reasonable detail (including, without limitation, the Purchaser's estimate, on a without prejudice basis, of the amount of such indemnity claim) as soon as reasonably practicable (and in any event within 30 days) after it becomes aware of that matter or circumstance. Failure to give notice within such period shall not affect the rights of the Purchaser in respect of subclauses 11.7 or 11.9 except to the extent that the Seller shall not be liable for any Losses in respect of a claim to the extent that any such Losses are increased as a result of such failure to give notice. Following receipt by the Seller of the Purchaser's notice in accordance with this subclause 11.1, the Seller shall promptly provide written notice to the Purchaser as to whether it is accepting or disputing any such indemnity claim. The liability of the Seller in respect of any claim under subclause 11.7 or 11.9 shall in any event terminate if arbitration proceedings contemplated in clause 23 in respect of it have not been commenced in accordance with clause 23 within nine months after the giving of written notice by the Seller to the Purchaser that it is disputing any claim under subclause 11.7 or 11.9.
|
11.12
|
The provisions of paragraphs 1.2, 3 (other than 3.4), 6, 7, 9, 10, 11, 12 and 13 of Schedule 4 shall apply
mutatis mutandis
to the indemnities set out in subclauses 11.7 and 11.9. The provisions of paragraph 14 of Schedule 4 shall also apply
mutatis mutandis
to the indemnity set out in subclause 11.9.
|
11.13
|
The Purchaser agrees to take all reasonable steps and provide all reasonable assistance to avoid or mitigate any Losses which in the absence of mitigation might arise as a result of any breach by the Seller of subclauses 11.7 and 11.9 subject to the Seller indemnifying the Purchaser for all Losses in respect of any such mitigation.
|
11.14
|
The liability of the Seller in respect of:
|
|
(a)
|
subclause 11.7 shall be limited to one hundred (100) per cent. of the Consideration less the aggregate amount of any and all Warranty Claims, claims under the Tax Deed or any claim under the indemnity set out in subclause 11.9 which have been paid to the Purchaser; and
|
|
(b)
|
subclause 11.9 shall be limited to forty (40) per cent. of the Consideration less the aggregate amount of any and all Warranty Claims, claims under the Tax Deed or any claim under the indemnity set out in subclause 11.7 which have been paid to the Purchaser.
|
11.15
|
The Seller's Guarantor warrants to the Purchaser that each of the statements set out below is true and accurate as at the date of this Agreement and will be true and accurate immediately prior to and at Completion:
|
|
(a)
|
it has the power to execute and deliver this Agreement, and each of the other Transaction Documents to which it is or will be a party, and to perform its obligations under each of them and has taken all action necessary to authorise such execution and delivery and the performance of such obligations;
|
|
(b)
|
this Agreement constitutes, and each of the other Transaction Documents to which it is or will be a party will, when executed, constitute legal, valid and binding obligations of the Seller's Guarantor, as the case may be, in accordance with its terms;
|
|
(c)
|
the execution and delivery by the Seller's Guarantor, as the case may be, of this Agreement and the execution and delivery by the Seller's Guarantor of each of the other Transaction Documents to which it is or will be a party and the performance of the obligations of the Seller's Guarantor under it and each of them do not and will not conflict with or constitute a default under any provision of:
|
|
(i)
|
any agreement or instrument to which the Seller's Guarantor is a party; or
|
|
(ii)
|
the constitutional documents of the Seller 's Guarantor; or
|
|
(iii)
|
any law, lien, lease, order, judgment, award, injunction, decree, ordinance or regulation or any other restriction of any kind or character by which the Seller's Guarantor is bound; or
|
|
(iv)
|
so far as it is aware, any Applicable Law;
|
|
(d)
|
save for those authorisations and approvals set out in subclause 3.1 of this Agreement, all authorisations from, and notices or filings with, any governmental or other authority that are necessary to enable the Seller's Guarantor, as the case may be to execute, deliver and perform its obligations under this Agreement and each of the other Transaction Documents to which it is or will be a party have been obtained or made (as the case may be) and are in full force and effect and all conditions of each such authorisation have been complied with;
|
|
(e)
|
it is a corporation validly existing under the laws of Delaware;
|
|
(f)
|
it is not actually aware of any matter or circumstance which is inconsistent with any of the Seller's Warranties or makes any of them untrue or inaccurate.
|
12.
|
PURCHASER'S AND PURCHASER'S GUARANTOR'S WARRANTIES
|
12.1
|
Each of the Purchaser and the Purchaser's Guarantor warrants to the Seller that each of the statements set out below is true and accurate as at the date of this Agreement and will be true and accurate immediately prior to and at Completion:
|
|
(a)
|
it has the power to execute and deliver this Agreement, and each of the other Transaction Documents to which it is or will be a party, and to perform its obligations under each of them and has taken all action necessary to authorise such execution and delivery and the performance of such obligations;
|
|
(b)
|
this Agreement constitutes, and each of the other Transaction Documents to which it is or will be a party will, when executed, constitute legal, valid and binding obligations of the Purchaser and the Purchaser's Guarantor, as the case may be, in accordance with its terms;
|
|
(c)
|
the execution and delivery by the Purchaser or the Purchaser's Guarantor, as the case may be, of this Agreement and the execution and delivery by the Purchaser, the Purchaser's Guarantor or any Bulgaria SPV, as the case may be, of each of the other Transaction Documents to which it is or will be a party and the performance of the obligations of the Purchaser, the Purchaser's Guarantor or any Bulgaria SPV, as the case may be, under it and each of them do not and will not conflict with or constitute a default under any provision of:
|
|
(i)
|
any agreement or instrument to which Purchaser, the Purchaser's Guarantor or any Bulgaria SPV is a party; or
|
|
(ii)
|
the constitutional documents of the Purchaser, the Purchaser's Guarantor or any Bulgaria SPV; or
|
|
(iii)
|
any law, lien, lease, order, judgment, award, injunction, decree, ordinance or regulation or any other restriction of any kind or character by which the Purchaser, the Purchaser's Guarantor or any Bulgaria SPV is bound; or
|
|
(iv)
|
so far as it is aware, any Applicable Law;
|
|
(d)
|
save for those authorisations and approvals set out in subclause 3.1 of this Agreement, all authorisations from, and notices or filings with, any governmental or other authority that are necessary to enable the Purchaser, the Purchaser's Guarantor or any Bulgaria SPV, as the case may be to execute, deliver and perform its obligations under this Agreement and each of the other Transaction Documents to which it is or will be a party have been obtained or made (as the case may be) and are in full force and effect and all conditions of each such authorisation have been complied with;
|
|
(e)
|
it is a corporation validly existing under the laws of the Netherlands (in the case of the Purchaser) and Bermuda (in the case of the Purchaser's Guarantor); and
|
|
(f)
|
the Purchaser has (and at Completion will have) immediately available on an unconditional basis (subject only to Completion) the necessary cash resources to meet its obligations under this Agreement, and each of the other Transaction Documents to which it is or will be a party.
|
13.
|
ANNOUNCEMENTS AND CONFIDENTIALITY
|
13.1
|
The Purchaser shall procure that no member of the Purchaser's Group for the time being, and no adviser or other person connected with any such member, shall make any announcement, other than the Purchaser's Announcement, concerning the sale or purchase of the Shares or any related or ancillary matter before, on or after Completion. The Purchaser shall also procure that no member of the Target Group and no adviser or other person connected with any such member of the Target Group shall make any announcement concerning the sale or purchase of the Shares or any related or ancillary matter on or after Completion.
|
13.2
|
The Seller shall procure that no member of the Seller's Group for the time being, and no adviser or other person connected with any such member, shall make any announcement, other than the Seller's Announcement, concerning the sale or purchase of the Shares or any related or ancillary matter before, on or after Completion. The Seller shall also procure that no member of the Target Group and no adviser or other person connected with any such member of the Target Group shall make any announcement concerning the sale or purchase of the Shares or any related or ancillary matter before Completion.
|
13.3
|
Except as required by Applicable Law, the Purchaser:
|
|
(a)
|
shall, and shall procure that each other member of the Purchaser's Group for the time being shall, keep confidential all information provided to any member of the Purchaser's Group by or on behalf of the Seller or otherwise obtained by any member of the Purchaser's Group in connection with this Agreement which relates to the Seller or any other member of the Seller's Group except to the extent the information is in or comes into the public domain other than as a result of a breach of any undertaking or duty of confidentiality by the Purchaser; and
|
|
(b)
|
shall procure that, if after Completion any member of the Target Group holds confidential information relating to the Seller or any other member of the Seller's Group, that company shall after Completion keep that information confidential and shall return that information to the Seller or destroy it, in either case without retaining copies except to the extent the information is in or comes into the public domain other than as a result of a breach of any undertaking or duty of confidentiality by such company.
|
13.4
|
Except as required by Applicable Law, the Seller:
|
|
(a)
|
shall, and shall procure that each other member of the Seller's Group for the time being shall, keep confidential all information provided to any member of the Seller's Group by or on behalf of the Purchaser or otherwise obtained by any member of the Seller's Group in connection with this Agreement which relates to the Purchaser or any other member of the Purchaser's Group except to the extent the information is in or comes into the public domain other than as a result of a breach of any undertaking or duty of confidentiality by the Seller; and
|
|
(b)
|
shall procure that, no member of the Seller's Group disclose or divulge to any third party any information of a secret or confidential nature relating exclusively to the business or affairs of any member of the Target Group, except to the extent the information is in or comes into the public domain other than as a result of a breach of any undertaking or duty of confidentiality by the Seller or any other subsidiary of the Seller.
|
13.5
|
Nothing in this subclause prevents any announcement being made or any confidential information being disclosed (or being retained and not returned or destroyed):
|
|
(a)
|
where such announcement contains, or the confidential information disclosed and/or retained comprises, only information set out in the Seller's Announcement or Purchaser's Announcement; or
|
|
(b)
|
to the extent required by Applicable Law, any court of competent jurisdiction or any competent regulatory body or stock exchange, but if a person is so required to make any announcement or to disclose any confidential information, the relevant Party shall promptly notify the other Party, where practicable and lawful to do so, before the announcement is made or disclosure occurs (as the case may be) and shall co-operate with the other Party regarding the timing and content of such announcement or disclosure (as the case may be) or any action which the other Party may reasonably elect to take to challenge the validity of such requirement.
|
14.
|
GUARANTEE BY PURCHASER'S GUARANTOR
|
14.1
|
In consideration of the Seller entering into this Agreement, the Purchaser's Guarantor, as primary obligor for the Purchaser, unconditionally and irrevocably guarantees, by way of continuing guarantee to the Seller, the payment and performance by the Purchaser, when due, of all amounts and obligations under this Agreement and the other Transaction Documents. This guarantee shall remain in full force and effect until all such amounts and obligations have been irrevocably paid and discharged in full.
|
14.2
|
The Purchaser's Guarantor's obligations under this clause 14:
|
|
(a)
|
constitute direct, primary and unconditional obligations to pay on demand by the Seller any sum which the Purchaser is liable to pay under this Agreement or any other Transaction Document and to perform on demand any obligation of the Purchaser under this Agreement or any other Transaction Document without requiring the Seller first to take any steps against the Purchaser or any other person; and
|
|
(b)
|
shall not be affected by any matter or thing which but for this provision might operate to affect or prejudice those obligations, including:
|
|
(i)
|
any time or indulgence granted to, or composition with, the Purchaser or any other person; or
|
|
(ii)
|
any amendment of this Agreement; or
|
|
(iii)
|
the taking, variation, renewal or release of, or refusal or neglect to perfect or enforce, any right, remedy or security against the Purchaser or any other person; or
|
|
(iv)
|
any legal limitation, disability or other circumstance relating to the Purchaser or any unenforceability or invalidity of any obligation of the Purchaser under this Agreement or any other Transaction Document.
|
15.
|
GUARANTEE BY SELLER'S GUARANTOR
|
15.1
|
In consideration of the Purchaser entering into this Agreement, the Seller's Guarantor, as primary obligor for the Seller, unconditionally and irrevocably guarantees, by way of continuing guarantee to the Purchaser, the payment and performance by the Seller, when due, of all amounts and obligations under this Agreement and the other Transaction Documents. This guarantee shall remain in full force and effect until all such amounts and obligations have been irrevocably paid and discharged in full.
|
15.2
|
The Seller's Guarantor's obligations under this clause 15:
|
|
(a)
|
constitute direct, primary and unconditional obligations to pay on demand by the Purchaser any sum which the Seller is liable to pay under this Agreement or any other Transaction Document and to perform on demand any obligation of the Seller under this Agreement or any other Transaction Document without requiring the Purchaser first to take any steps against the Seller or any other person; and
|
|
(b)
|
shall not be affected by any matter or thing which but for this provision might operate to affect or prejudice those obligations, including:
|
|
(i)
|
any time or indulgence granted to, or composition with, the Seller or any other person; or
|
|
(ii)
|
any amendment of this Agreement; or
|
|
(iii)
|
the taking, variation, renewal or release of, or refusal or neglect to perfect or enforce, any right, remedy or security against the Seller or any other person; or
|
|
(iv)
|
any legal limitation, disability or other circumstance relating to the Seller or any unenforceability or invalidity of any obligation of the Seller under this Agreement or any other Transaction Document.
|
16.
|
BULGARIA SPV
|
16.1
|
The Parties acknowledge and agree that at any time during the period commencing on the date of this Agreement and ending on the date of Completion, the Purchaser shall, subject to subclause 16.2 and the provisions of clause 18, have the right to designate one or more Wholly-Owned CME Companies (each, a
Bulgaria
SPV
) in the Purchaser's place as the purchaser of the Shares under this Agreement and in respect of the Transaction Documents (the
Designation
) by at least five (5) Business Days' advance notice in writing to the Seller of its wish to effect the Designation (the
Designation Notice
). For the avoidance of doubt, following such Designation, the Seller shall have duly discharged its obligation under the Agreement to transfer or procure the transfer of the Shares, by the Shares being transferred to such Bulgaria SPV.
|
16.2
|
Prior to and as a condition to the Designation taking effect each Bulgaria SPV shall enter into a deed of adherence in the form set out in Schedule 9 (the
Deed of Adherence
).
|
17.
|
NOTICES
|
17.1
|
Any notice or other communication to be given under this Agreement must be in writing (which includes fax, but not any other form of Electronic Communication) and must be delivered or sent by post or fax to the Party to whom it is to be given as follows:
|
|
(a)
|
to the Seller at:
|
|
(b)
|
to the Seller's Guarantor at:
|
|
(c)
|
to the Purchaser at:
|
|
(d)
|
to the Purchaser's Guarantor at:
|
17.2
|
Any notice or other communication shall be deemed to have been given:
|
|
(a)
|
if delivered, on the date of delivery; or
|
|
(b)
|
if sent by post, on the second Business Day after it was put into the post; or
|
|
(c)
|
if sent by fax, on the date of transmission, if transmitted before 3.00 p.m. (local time at the country of destination) on any Business Day, and in any other case on the Business Day following the date of transmission.
|
17.3
|
In proving the giving of a notice or other communication, it shall be sufficient to prove that delivery was made or that the envelope containing the communication was properly addressed and posted by prepaid recorded delivery post or by prepaid airmail or that the fax was properly addressed and transmitted, as the case may be.
|
17.4
|
This clause shall not apply in relation to the service of any claim form, notice, order, judgment or other document relating to or in connection with any proceedings, suit or action arising out of or in connection with this Agreement.
|
18.
|
ASSIGNMENTS
|
18.1
|
None of the rights or obligations under this Agreement may be assigned or transferred without the prior written consent of all the Parties and any such purported assignment or transfer shall be void provided however, that the Purchaser may assign its rights and obligations under this Agreement to any other member of the Purchaser's Group in accordance with clause 16 and if it does so:
|
|
(a)
|
the Purchaser must give prior notice in writing to the Seller of this assignment;
|
|
(b)
|
as between the Seller, the Purchaser and the Purchaser's Guarantor, the Seller may nevertheless enforce this Agreement and the Tax Deed against the Purchaser and the Purchaser's Guarantor as if the assignment had not occurred;
|
|
(c)
|
the assignment shall be without cost to the Seller and shall not in any way operate so as to increase the liability or reduce the rights of any of the parties under this Agreement or the Tax Deed; and
|
|
(d)
|
prior to the assignee ceasing to be a member of the Purchaser's Group for the time being, the Purchaser shall procure that the benefit of this Agreement and the Tax Deed is re-assigned to the Purchaser or assigned to another member of the Purchaser's Group.
|
19.
|
GROSS UP AND WITHHOLDING
|
19.1
|
All sums payable by any person (the
Payer
) to another person (the
Recipient
) under this Agreement shall be paid free of all deductions and withholdings, except those required by Applicable Law.
|
19.2
|
If any deduction or withholding is required by Applicable Law to be made from a sum payable under this Agreement, or if the Recipient incurs Tax on a sum (other than the Consideration) paid to it under this Agreement (or would have incurred Tax on such sum, but for the use of any Relief, as that term is defined in the Tax Deed), the Payer shall pay the Recipient a sum which will leave the Recipient in the same after tax position as it would have been in, had no tax been imposed, or no deduction or withholding required.
|
20.
|
PAYMENTS
|
20.1
|
Unless otherwise expressly stated (or as otherwise agreed in the case of a given payment), each payment to be made to the Seller or the Purchaser under this Agreement shall be made in US$ by transfer of the relevant amount into the relevant account on or before the date the payment is due for value on that date. The relevant account for a given payment shall be provided by the applicable Party to the other not less than three (3) Business Days before the date that payment is due.
|
20.2
|
If a Party defaults in making any payment when due of any sum payable under this Agreement, it shall pay interest on that sum from (and including) the date on which payment is due until (but excluding) the date of actual payment (after as well as before judgment) at an annual rate of two per cent. above the base rate from time to time of Barclays Bank PLC, which interest shall accrue from day to day and be compounded monthly.
|
21.
|
GENERAL
|
21.1
|
Each of the obligations, warranties and undertakings in respect of the Shares set out in this Agreement (excluding any obligation which is fully performed at Completion) shall continue in force after Completion.
|
21.2
|
Time is not of the essence in relation to any obligation under this Agreement unless:
|
|
(a)
|
time is expressly stated to be of the essence in relation to that obligation; or
|
|
(b)
|
one Party fails to perform an obligation by the time specified in this Agreement and another Party serves a notice on the defaulting Party requiring it to perform the obligation by a specified time and stating that time is of the essence in relation to that obligation.
|
21.3
|
Except as otherwise expressly provided in this Agreement, each Party shall pay the costs and expenses incurred by it in connection with the entering into and completion of this Agreement, save that the Purchaser alone shall be responsible for any stamp duty or similar tax imposed in connection with the transfer of any of the Shares.
|
21.4
|
This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any Party (including any duly authorised representative of a Party) may enter into this Agreement by executing a counterpart. Facsimile signatures shall be valid and binding to the same extent as original signatures.
|
21.5
|
The rights of each Party under this Agreement:
|
|
(a)
|
may be exercised as often as necessary;
|
|
(b)
|
except as otherwise expressly provided by this Agreement, are cumulative and not exclusive of rights and remedies provided by law; and
|
|
(c)
|
may be waived only in writing and specifically.
|
21.6
|
Except as expressly stated in this Agreement, a person who is not a Party to this Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.
|
22.
|
WHOLE AGREEMENT
|
22.1
|
This Agreement and the other Transaction Documents contain the whole agreement between the Parties relating to the transactions contemplated by the Transaction Documents and supersede all previous agreements, whether oral or in writing, between the Parties relating to these transactions. Except as required by statute, no terms shall be implied (whether by custom, usage or otherwise) into this Agreement.
|
22.2
|
Each Party acknowledges that in agreeing to enter into this Agreement and the other Transaction Documents it has not relied on any express or implied representation, warranty, collateral contract or other assurance (except those repeated in the Transaction Documents) made by or on behalf of any other Party before the entering into of this Agreement. Each Party waives all rights and remedies which, but for this subclause 22.2, might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.
|
22.3
|
Nothing in this clause limits or excludes any liability for fraud.
|
23.
|
GOVERNING LAW AND ARBITRATION
|
23.1
|
This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by English law.
|
23.2
|
Any disputes, claims or controversy arising out of or related to this Agreement, (other than any dispute to be determined by the Independent Accountant in accordance with Schedules 6 and 7) including any question as to its formation, validity, interpretation or termination, which cannot be resolved by negotiations between the Parties shall be settled by arbitration on an
ad hoc
basis in accordance with the Rules of the London Court of International Arbitration, which are deemed to be incorporated by reference into this clause, except to the extent modified by this clause. The tribunal shall consist of three (3) arbitrators. The Purchaser and the Seller shall each nominate one (1) arbitrator and the third (3
rd
) arbitrator shall be appointed by the two (2) arbitrators nominated by the Parties. Either of the Purchaser or the Seller shall have the right to initiate the proceedings. Any party wishing to commence an arbitration shall deliver a document requesting the commencement of an arbitration (a
Request for Arbitration
) in accordance with clause 17 of this Agreement. The arbitration shall be treated as commenced for all purposes on the date the Request for Arbitration is deemed to have been given in accordance with clause 17 of this Agreement.
|
23.3
|
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.
|
23.4
|
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.
|
LANGUAGE
|
1.
|
In this Agreement:
|
|
a.
|
gives or is reasonably likely to give rise in the aggregate to costs, claims, demands, damages, expenses, penalties, fines, liabilities and losses, including a reduction in the cash generated by the Target Group Companies (other than Balkan Media Group), in excess of US$70 million (or equivalent amount); and
|
|
b.
|
is not caused by:
|
|
(i)
|
a change in interest rates, exchange rates or securities or commodity prices or in economic, business, capital market, financial, market or political conditions generally, or in the industries in which the Target Group Companies (other than Balkan Media Group) operate;
|
|
(ii)
|
changes in Applicable Law (other than any change in Bulgarian Law which results in or is reasonably likely to result in
the loss or surrender of any Operating Licences held by Balkan News Corporation), generally accepted accounting principles or official interpretations of the foregoing;
|
|
(iii)
|
matters to the extent Fairly Disclosed in the Disclosure Letter or set out in paragraph 3 of Schedule 4; or
|
|
(iv)
|
any change which also affects businesses that compete with the business of any of the Target Group Companies;
|
|
(a)
|
the aggregate amount of external financial indebtedness (other than Trade Debts) owing by such companies, including overdrafts, bank loans, notes, debentures, bonds and amounts owing under finance leases together with accrued interest thereon;
plus
|
|
(b)
|
the Net Inter-Company Debt; less
|
|
(c)
|
the aggregate amount of cash in hand or at bank and cash equivalents held by such companies (excluding advances to employees and the Escrow Amount) together with accrued interest thereon,
|
2.
|
Where any statement in Schedule 3 or in the Disclosure Letter is qualified by the expression
so far as the Seller is aware
or
to the best of the Seller's knowledge, information and belief
or any similar expression, that statement shall be deemed to refer to the actual knowledge of the Seller after due and careful enquiry of the following individuals: Gary Davey, Vessela Dimova, Marc Heller, Boian Kalchev, Thomas Mockridge, Liza Newnham, Apostol Pentchev, Vicky Valerieva Politova, Emma Young, Vera Stoyanova and Janet Zaharieva.
|
3.
|
In this Agreement any reference, express or implied, to an enactment (which includes any legislation in any jurisdiction) includes:
|
|
(a)
|
that enactment as amended, extended or applied by or under any other enactment (before or after signature of this Agreement);
|
|
(b)
|
any enactment which that enactment re-enacts (with or without modification); and
|
|
(c)
|
any subordinate legislation made (before or after signature of this Agreement) under that enactment, including (where applicable) that enactment as amended, extended or applied as described in subparagraph (a), or under any enactment which it re-enacts as described in subparagraph (b),
|
4.
|
In this Agreement:
|
|
(a)
|
words denoting persons include bodies corporate and unincorporated associations of persons;
|
|
(b)
|
references to an individual or a natural person include his estate and personal representatives; and
|
|
(c)
|
subject to clause 18, references to a Party to this Agreement include the successors or assigns (immediate or otherwise) of that Party.
|
EXECUTED as a deed by
NEWS CORPORATION
acting by Tom Mockridge, its officer,
in the presence of:
|
)
)
)
|
/s/ Thomas Mockridge
|
|
Witness's Signature
|
/s/ Marc Heller
|
||
Name:
|
Marc Heller
|
||
Address:
|
|||
EXECUTED as a deed by
NEWS NETHERLANDS B.V.
acting by Jeffrey Palker,
its attorney in the presence of:
|
)
)
)
|
/s/ Jeffrey Palker
|
|
Witness's Signature
|
/s/ Angelina Elliott
|
||
Name:
|
Angelina Elliott
|
||
Address:
|
|||
EXECUTED as a deed by
CME MEDIA ENTERPRISES B.V.
acting by Alphons van Spaendonck and
Pan-Invest B.V., represented by G. van den
Berg each a managing director
in the presence of:
|
)
)
)
)
)
|
/s/ Gerben van den Berg
Managing Director
|
|
Witness's Signature
|
/s/ MA van den Berg-van Wijlen
/s/ N.T. van Spaendonck- Hesselink
|
||
Name:
|
MA van den Berg-van
Wijlen
N.T. van
Spaendonck-
Hesselink
|
/s/ Alphons van Spaendonck
Managing Director
|
|
Address:
|
|||
EXECUTED as a deed by
CENTRAL EUROPEAN MEDIA ENTERPRISES LTD.
acting by ADRIAN SARBU,
i
ts Chief Executive Officer in the presence of:
|
)
)
)
|
/s/ Adrian Sarbu
Chief Executive Officer
|
|
Witness's Signature
|
/s/ Costinela Rosu
|
||
Name:
|
Costinela Rosu
|
||
Address:
|
|||
DATED
|
February 26, 2010
|
CONTRACT OF EMPLOYMENT
|
||
Name and Address of Employer:
|
CME Media Services Limited, Krizeneckeho nam. 1078/5, 15200 Prague 5 – Barrandov, Czech Republic (the “
Company
”)
|
|
Name and Address of Employee:
|
David Sach, residing at [address redacted].
|
|
Date this Contract takes effect:
|
February 26, 2010
|
1
|
COMMENCEMENT OF AND CONDITIONS TO EMPLOYMENT
|
1.1
|
Your employment with the Company shall commence on February 26, 2010, or such other date as agreed between you and the President and Chief Executive Officer of the CME Group, subject to compliance with clause 1.2 below (the “
Commencement Date
”). No previous period of employment shall count as continuous employment.
|
1.2
|
You shall establish to the Company’s satisfaction (through production of original documents reasonably requested by us) that you are entitled to live and work in the Czech Republic without any additional approvals. You will notify the Company immediately if you cease to be so entitled at any time during your employment with the Company.
|
1.3
|
You represent and warrant that you are not bound by or subject to any contract, court order, agreement, arrangement or undertaking which in any way restricts or prohibits you from entering into this Contract or performing your duties under it.
|
2
|
JOB TITLE AND DUTIES
|
2.1
|
Your job title is Chief Financial Officer, reporting directly to the President and Chief Executive Officer of the CME Group. For purposes of this Contract, the “
CME Group
” shall mean Central European Media Enterprises Ltd. (“
CME Ltd.
”) and/or any Associated Company (as defined below).
|
2.1.1
|
You will perform such functions and undertake such responsibilities as are customarily associated with such a position as your main duties.
|
2.2
|
You shall use your best endeavours to promote and protect the interests of the CME Group and shall not do anything that is harmful to those interests.
|
2.3
|
You shall devote the whole of your working time (unless prevented by ill-health or accident or otherwise directed by the Company) to the duties of this Contract and you shall not be directly or indirectly interested or concerned in any manner in any other business (other than holding as a bona-fide personal investment equity in any company whose shares are listed on any recognised exchange or does not otherwise contravene clause 18) except with the Company’s prior written consent. If such consent is given, you must provide the Company with the number of hours worked for any other employer each month.
|
3
|
PLACE OF WORK
|
3.1
|
You will be based in the Company’s branch office in Prague, Czech Republic. However, it is agreed that your position will require that you spend extensive time travelling for the proper performance of your duties.
|
4
|
REMUNERATION
|
4.1
|
From the Commencement Date, your basic salary is EUR 450,000 per year, payable monthly in arrears by credit transfer into your bank account after all necessary deductions for relevant taxes and social security payments. Your salary shall be payable in Czech koruna (CZK) based on the EUR-CZK exchange rate in effect on the Commencement Date in respect of the period through December 31, 2010 and on each January 1 in respect of each year thereafter. In the event the amount of salary you would have been entitled to receive in Czech korunas in any calendar year, following conversion of such amount using the average CZK-EUR exchange rate for such calendar year, is greater than the amount you did receive, the difference will be added to your salary payable in the first month of the following calendar year. In the event the amount of salary you would have been entitled to receive in Czech korunas in any calendar year, following conversion of such amount using the average CZK-EUR exchange rate for such calendar year, is less than the amount you did receive, the difference will be withheld from your basic salary payable in the first month of the following calendar year.
|
4.2
|
Your salary will be reviewed on an annual basis. The first review will take place on or about the first anniversary of your Commencement Date. Any increase is entirely at the Company’s discretion.
|
4.3
|
You shall be entitled to participate in the CME Management Compensation Policy in effect from time to time (the “
Policy
”). The amount, if any, of any bonus awarded pursuant to the Policy will accrue from the Commencement Date and shall be determined by the President and Chief Executive Officer of the CME Group, pursuant to the rules of the Policy. Any bonus awarded will be based on a figure representing 100% of your gross annual salary.
|
5
|
OTHER BENEFITS
|
5.1
|
You are entitled to membership of such insurance schemes (each referred to below as an “
insurance scheme
”) provided by the Company from time to time, including:
|
|
5.1.1
|
a medical and dental expenses insurance scheme providing such cover for you and your spouse/partner and any children under the age of eighteen (18) as the Company may from time to time notify to you;
|
|
5.1.2
|
a salary continuance on long-term disability insurance scheme providing such cover for you as the Company may from time to time notify to you; and
|
|
5.1.3
|
a life insurance scheme providing such cover for you as the Company may from time to time notify to you.
|
5.2
|
Benefits shall be subject to the terms of any applicable insurance policy and are conditional upon your complying with and satisfying any applicable requirements of the insurers or other benefits provider. Copies of these rules and policies and particulars of the requirements shall be provided to you on request. The Company shall not have any liability to pay any benefit to you under any insurance scheme unless it receives payment of the benefit from the insurer under the scheme.
|
5.3
|
Any insurance scheme which is provided for you is also subject to the Company’s right to alter the cover provided or any term of the scheme or to cease to provide (without replacement) the scheme at any time if in the reasonable opinion of the Company your state of health is or becomes such that the Company is unable to insure the benefits under the scheme at the normal premiums applicable.
|
5.4
|
The provision of any insurance scheme or any benefits hereunder does not in any way prevent the Company from lawfully terminating this Contract in accordance with the provisions in clause 9 even if to do so would deprive you of membership of or cover under any such scheme or benefit.
|
5.5
|
For a period of three years from the Commencement Date, provided you continue to be employed by the Company throughout such period, the Company shall pay you a monthly rental allowance of the Czech koruna equivalent of EUR 4,705.88
to be payable in monthly instalments at the same time and by the same method as your salary is paid (the “
Monthly Allowance
”). Such payment is subject to the same foreign exchange adjustment calculation as set out in clause 4.1 above.
|
5.6
|
The Company agrees to use reasonable efforts to cause CME Ltd. to grant you 125,000 options to purchase shares of Class A Common Stock of CME Ltd. on or about the Commencement Date in accordance with CME Ltd.’s Amended and Restated Stock Incentive Plan (the “
Plan
”). The exercise price for such options shall be the closing price of the shares of Class A Common Stock of CME Ltd. on the NASDAQ Stock Market on the date of grant. Such grant of options shall vest in four equal instalments over a period of four years and shall otherwise be subject to the Plan.
|
5.7
|
The Company will use commercially reasonable efforts to ensure that you are qualified as an officer under any directors’ and officers’ liability insurance policy taken out by the CME group.
|
6
|
EXPENSES
|
7
|
HOURS OF WORK
|
8
|
HOLIDAYS
|
8.1
|
You are entitled to 25 days’ holiday per annum (in addition to public holidays).
|
8.2
|
Your entitlement to holiday accrues pro rata on an annual basis as calculated from 1 April until 31 March (inclusive) each year (the “
Holiday Year
”).
|
8.3
|
On termination, you will be paid only for accrued vacation in the relevant Holiday Year and not for vacation carried over from the previous year.
|
8.4
|
The Company may refuse to allow you to take holiday in circumstances where it would be inconvenient to the business of the Company. If, in exceptional circumstances, the Company is forced to cancel holiday previously booked by you, all reasonable and properly documented accommodation, reservation and travel expenses incurred by you in connection therewith up to the date of cancellation that are not otherwise refundable will be reimbursed by the Company.
|
9
|
TERMINATION
|
9.1
|
You may terminate this Contract at any time on giving the Company twelve months’ notice in writing. The Company is required to give you twelve months’ notice in writing.
|
9.2
|
In the event you give notice of termination pursuant to this clause 9, the Company may elect to provide you with payment in lieu of notice. This payment will be comprised solely of your basic salary (at the rate payable when this option is exercised) in respect of the portion of the notice period remaining at the time the Company exercises this option and any earned but unpaid bonus awarded in accordance with clause 4.2 hereof. All payments made pursuant to this clause 9.2 shall be subject to deductions for income tax and social security contributions as appropriate. You will not, under any circumstances, have any right to payment in lieu of notice unless the Company has exercised its option to pay in lieu of notice.
|
9.3
|
If the Company gives notice of termination (other than Termination for Cause (as defined below)), the Contract will terminate with immediate effect and the Company will make a payment in lieu of notice. In the event of any such termination without cause by the Company, payment will be comprised of your basic salary (at the rate payable when this option is exercised), target bonus, Monthly Allowance and holiday in respect of the notice period, together with any accrued bonus as of the notice date and any earned but unpaid bonus awarded in accordance with clause 4.2 hereof. In addition, you shall be entitled to medical and dental insurance as provided in clause 5.1.1 for a period of twelve months following the date on which this Contract is terminated pursuant to this clause 9.3. All payments made pursuant to this clause 9.3 shall be subject to deductions for income tax and social security contributions as appropriate. At the election of the Company, such payments will be made at the times the Company would have made payments to you had notice not been given.
|
9.4
|
The Company may terminate this Contract due to Termination for Cause without notice, payment in lieu of notice or any other payment whatsoever. “Termination for Cause” means your (i) conviction of a felony or entering a plea of nolo contendere (or its equivalent) with respect to a charged felony; (ii) gross negligence, recklessness, dishonesty, fraud, wilful malfeasance or wilful misconduct in the performance of your duties under this Contract; (iii) wilful misrepresentation to the shareholders or directors of CME Ltd. that is injurious to CME Ltd.; (iv) wilful failure without reasonable justification to comply with a reasonable written instruction or resolution of the Board of Directors of CME Ltd.; or (v) a material breach of your duties or obligations under this Contract. The Company may, in its reasonable judgment, suspend you on full pay during any investigation that the Company may undertake into any fact or circumstance which could lead to your Termination for Cause. Notwithstanding the foregoing, a termination shall not be treated as Termination for Cause unless the Company has delivered a written notice to you stating that it intends to terminate your employment due to Termination for Cause and specifying the basis for such termination.
|
9.5
|
On (i) the date of termination of this Contract pursuant to clause 9.3, or (ii) the effective date of a Change of Control (as defined in Annex 1 hereto), all options and restricted stock units granted to you pursuant to the Plan shall become automatically exercisable for a period of twelve months from such date, after which they shall expire.
|
9.6
|
Upon the termination by whatever means of this Contract you shall immediately return to the Company all documents, computer media and hardware, credit cards, mobile phones and communication devices, keys and all other property belonging to or relating to the business of the Company which is in your possession or under your power or control and you must not retain copies of any of the above.
|
10
|
SUSPENSION
|
10.1
|
The Company may suspend you from your duties on full pay to allow the Company to investigate any bona-fide complaint made against you in relation to your employment with the Company.
|
10.2
|
Provided you continue to enjoy your full contractual benefits and receive your pay in accordance with this Contract, the Company may in its absolute discretion do all or any of the following during the notice period or any part of the notice period, after you or the Company have given notice of termination to the other, without breaching this Contract or incurring any liability or giving rise to any claim against it:
|
|
10.2.1
|
exclude you from the premises of any company of the CME Group;
|
|
10.2.2
|
require you to carry out only specified duties (consistent with your status, role and experience) or to carry out no duties;
|
|
10.2.3
|
announce to any of its employees, suppliers, customers and business partners that you have been given notice of termination or have resigned (as the case may be);
|
|
10.2.4
|
prohibit you from communicating in any way with any or all of the suppliers, customers, business partners, employees, agents or representatives of the CME Group until your employment has terminated except to the extent that you are authorised by the General Counsel of CME Ltd. in writing; and
|
|
10.2.5
|
require you to comply with any other reasonable conditions imposed by the Company.
|
10.3
|
You will continue to be bound by all obligations owed to the Company under this Contract until termination of this Contract in accordance with clause 9 or such later date as provided herein.
|
11
|
CONFIDENTIAL INFORMATION
|
11.1
|
You agree during and after the termination of your employment not to use or disclose to any person (and shall use your best endeavours to prevent the use, publication or disclosure of ) any confidential information:
|
|
11.1.1
|
concerning the business of the CME Group and which comes to your knowledge during the course of or in connection with your employment or your holding office with the Company; or
|
|
11.1.2
|
concerning the business of any client or person having dealings with the CME Group and which is obtained directly or indirectly in circumstances where the CME Group is subject to a duty of confidentiality.
|
11.2
|
For the purposes of clause 11.1.1 above, information of a confidential or secret nature includes but is not limited to information disclosed to you or known, learned, created or observed by you as a consequence of or through your employment with the Company, not generally known in the relevant trade or industry about the Company or any member of the CME Group’s business activities, services and processes, including but not limited to information concerning advertising, sales promotion, publicity, sales data, research, programming and plans for programming, finances, accounting, methods, processes, business plans (including prospective or pending licence applications or investments in licence holders or applicants), client or supplier lists and records, potential client or supplier lists, and client or supplier billing.
|
11.3
|
This clause shall not apply to information which is:
|
|
11.3.1
|
used or disclosed in the proper performance of your duties or with the consent of the Company;
|
|
11.3.2
|
ordered to be disclosed by a court of competent jurisdiction or otherwise required to be disclosed by law or pursuant to the rules of any applicable stock exchange; or
|
|
11.3.3
|
in or comes into the public domain (otherwise than due to a default by you).
|
12
|
INTELLECTUAL PROPERTY
|
12.1
|
You shall assign with full title your entire interest in any Intellectual Property Right (as defined below) to the Company to hold as absolute owner.
|
12.2
|
You shall communicate to the Company full particulars of any Intellectual Property Right in any work or thing created by you and you shall not use, license, assign, purport to license or assign or disclose to any person or exploit any Intellectual Property Right without the prior written consent of the Company.
|
12.3
|
In addition to and without derogation of the covenants imposed by the Law of Property (Miscellaneous Provisions) Act 1994, you shall prepare and execute such instruments and do such other acts and things as may be necessary or desirable (at the request and expense of the Company) to enable the Company (or its nominee) to obtain protection of any Intellectual Property Right vested in the Company in such parts of the world as may be specified by the Company (or its nominee) and to enable the Company to exploit any Intellectual Property Right vested in it to its best advantage.
|
12.4
|
You hereby irrevocably appoint the Company to be your attorney in your name and on your behalf to sign, execute or do any instrument or thing and generally to use your name for the purpose of giving to the Company (or its nominee) the full benefit of the provisions of this clause and a certificate in writing signed by any director or the secretary of the Company that any instrument or act relating to such Intellectual Property Right falls within the authority conferred by this clause shall be conclusive evidence that such is the case in favour of any third party.
|
12.5
|
You hereby waive all of your moral rights (as defined in the Copyright, Designs and Patents Act 1988) in respect of any act by the Company and any act of a third party done with the Company’s authority in relation to any Intellectual Property Right which is or becomes the property of the Company.
|
12.6
|
“
Intellectual Property Right
” means a copyright, know-how, trade secret and any other intellectual property right of any nature whatsoever throughout the world (whether registered or unregistered and including all applications and rights to apply for the same) which:
|
|
12.6.1
|
relates to the business or any product or service of the Company; and
|
|
12.6.2
|
is invented, developed, created or acquired by you (whether alone or jointly with any other person) during the period of your employment with the Company;
|
13
|
INDEMNITY
|
13.1
|
The Company will indemnify you and pay on your behalf all Expenses (as defined below) incurred by you in any Proceeding (as defined below), whether the Proceeding which gave rise to the right of indemnification pursuant to this Contract occurred prior to or after the date of this Contract provided that you shall promptly notify the Company of such Proceeding and the Company shall be entitled to participate in such Proceeding and, to the extent that it wishes, jointly with you, assume the defence thereof with counsel of its choice. This indemnification shall not apply if it is determined by a court of competent jurisdiction in a Proceeding that any losses, claims, damages or liabilities arose primarily out of your gross negligence, wilful misconduct or bad faith.
|
13.2
|
The term “
Proceeding
” shall include any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether brought in the name of the Company or otherwise and whether of a civil, criminal, administrative or investigative nature, including, but not limited to, actions, suits or proceedings brought under or predicated upon any securities laws, in which you may be or may have been involved as a party or otherwise, and any threatened, pending or completed action, suit or proceeding or any inquiry or investigation that you in good faith believe might lead to the institution of any such action, suit or proceeding or any such inquiry or investigation, in each case by reason of the fact that you are or were serving at the request of the Company as a director, officer or manager of any other Associated Company, whether or not you are serving in such capacity at the time any liability or expense is incurred for which indemnification or reimbursement can be provided under this Contract.
|
13.3
|
The term "
Expenses
” shall include, without limitation thereto, expenses (including, without limitation, attorneys fees and expenses) of investigations, judicial or administrative proceedings or appeals, damages, judgments, fines, penalties or amounts paid in settlement by or on behalf of you and any expenses of establishing a right to indemnification under this Contract.
|
13.4
|
The Expenses incurred by you in any Proceeding shall be paid by the Company as incurred and in advance of the final disposition of the Proceeding at your written request. You hereby agree and undertake to repay such amounts if it shall ultimately be decided in a Proceeding that you are not entitled to be indemnified by the Company pursuant to this Contract or otherwise.
|
13.5
|
The indemnification and advancement of Expenses provided by this Contract shall not be deemed exclusive of any other rights to which you may be entitled under the Company’s Articles of Association or the constituent documents of any other Associated Company for which you are serving as a director, officer or manager at the request of the Company, the laws under which the Company was formed, or otherwise, and may be exercised in any order you elect and prior to, concurrently with or following the exercise of any other such rights to which you may be entitled, including pursuant to directors’ and officers’ insurance maintained by the Company, both as to action in official capacity and as to action in another capacity while holding such office, and the exercise of such rights shall not be deemed a waiver of any of the provisions of this Contract. To the extent that a change in law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded under this Contract, it is the intent of the parties hereto that you shall enjoy by this Contract the greater benefit so afforded by such change. The provisions of this clause shall survive the expiration or termination, for any reason, of this Contract and shall be separately enforceable.
|
14
|
COLLECTIVE AGREEMENTS/WORKFORCE AGREEMENTS
|
15
|
DATA PROTECTION
|
15.1
|
You acknowledge that the Company will hold personal data relating to you. Such data will include your employment application, address, references, bank details, performance appraisals, work, holiday and sickness records, next of kin, salary reviews, remuneration details and other records (which may, where necessary, include sensitive data relating to your health and data held for equal opportunities purposes). The Company will hold such personal data for personnel administration and management purposes and to comply with its obligations regarding the retention of your records. Your right of access to such data is as prescribed by law.
|
15.2
|
By signing this Contract, you agree that the Company may process personal data relating to you for personnel administration and management purposes and may, when necessary for those purposes, make such data available to its advisors, to third parties providing products and/or services to the Company and as required by law.
|
16
|
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
|
17
|
MONITORING OF COMPUTER SYSTEMS
|
17.1
|
The Company will monitor messages sent and received via the email and voicemail system to ensure that employees are complying with the Company’s Information Technology policy.
|
17.2
|
The Company reserves the right to retrieve the contents of messages for the purpose of monitoring whether the use of the email system is in accordance with the Company’s best practice, whether use of the computer system is legitimate, to find lost messages or to retrieve messages lost due to computer failure, to assist in the investigations of wrongful acts or to comply with any legal obligation.
|
17.3
|
You should be aware that no email or voicemail sent or received through the Company’s system is private. The Company reserves and intends to exercise its right to review, audit, intercept, access and disclose on a random basis all messages created from it or sent over its computer system for any purpose. The contents of email or voicemail so obtained by the Company in the proper exercise of these powers may be disclosed without your permission. You should be aware that the emails or voicemails or any document created on the Company’s computer system, however confidential or damaging, may have to be disclosed in court or other proceedings. An email which has been trashed or deleted can still be retrieved.
|
17.4
|
The Company further reserves and intends to exercise its right to monitor all use of the internet through its information technology systems, to the extent authorised by law. By your signature to this Contract, you consent to any such monitoring.
|
18
|
POST-EMPLOYMENT RESTRICTIONS
|
18.1
|
For the duration of your employment with the Company and for a period of twelve (12) months after the termination thereof for any cause, you shall not:
|
18.2
|
either on your own account or on behalf of any other person, firm or company, directly or indirectly, carry on or be engaged, concerned or interested in any business the same as that of the CME Group or which is competitive with any business in which the CME Group is engaged (including, without limitation, securing broadcasting licenses, operating television stations and other broadcasting, the production of programming and other content, other programming services or distribution services) and with which you were actively involved at any time in the twelve months preceding the termination of your employment within the territories in which the CME Group operates or is considering to operate (the “
Territory
”);
|
18.3
|
seek to do business and/or do business, perform any services or supply any goods or seek to do so, in competition with any company of the CME Group with any person, firm or company who at any time during the twelve months preceding the termination of your employment was a client, customer or supplier of any company of the CME Group and with whom during that period you or another person on your behalf had contact or dealings in the ordinary course of business or were aware of in the course of your employment;
|
18.4
|
interfere or seek to interfere or take such steps as may or are calculated to interfere with the continuance of supplies (whether services or goods) or any rights of purchase, sale, import, distribution or agency enjoyed by or supplied to any company of the CME Group, or the terms on which they are so supplied or enjoyed, from any person, firm or company supplying or offering rights to any company of the CME Group at any time during the period of twelve months prior to such termination;
|
18.5
|
solicit, entice or procure or endeavour to solicit, entice or procure any employee of the CME Group to breach his contract of employment or any person to breach his contract for services with the Company or any Associated Company;
|
18.6
|
in relation to a business the same as or competitive with the CME Group in the Territory, solicit, employ, engage or offer or cause to be employed or engaged, whether directly or indirectly, any employee, director or consultant of any company of the CME Group engaged or employed at the date of termination of your employment or at any time during the twelve months preceding such termination who has knowledge of confidential aspects of the business of the CME Group, and with whom, at any time during the period of twelve months prior to such termination, you had material dealings and/or
|
18.7
|
you shall not at any time falsely represent yourself as being connected with or interested in the Company or any Associated Company or in the business of the CME Group.
|
18.8
|
Each of the restrictions in this clause shall be enforceable independently of each other and its validity shall not be affected if any of the others is invalid. If any of the restrictions is void but would be valid if some part of the restriction were deleted, the restriction in question shall apply with such modification as may be necessary to make it valid.
|
18.9
|
The restrictions set forth in this clause 18 shall not apply if the Company is in breach of this Contract.
|
18.10
|
For the purposes of this Contract, “
Associated Company
” shall mean a subsidiary (as defined by the Companies Act 1985 as amended) and any other company which is for the time being a holding company (as defined by the Companies Act 1985 as amended) of the Company or another subsidiary of such holding company.
|
19
|
GENERAL
|
19.1
|
You hereby authorise the Company to deduct from any salary payable to you any sums owing by you to the Company.
|
19.2
|
This Contract shall be governed by and construed in accordance with English law. The parties agree to submit to the non-exclusive jurisdiction of the English courts in respect of any dispute hereunder.
|
Signed as a Deed by CME Media Services Limited acting by:
|
|||
Daniel Penn, Director
|
/s/ Daniel Penn
|
||
Dave Sturgeon, Director
|
/s/ Dave Sturgeon
|
||
Signed as a Deed by David Sach
|
/s/ David Sach
|
||
in the presence of:
|
|||
Witness signature:
|
/s/ Omega Minus
|
||
Name:
|
|||
Address:
|
|||
Occupation:
|
Sanctuary Business Center
|
(i)
|
any “person” or “group” of related persons (as defined in Section 13(d) and 14(d)(2) of the U.S. Securities Exchange Act of 1934, as amended), other than one or more Permitted Holders, is or becomes the beneficial owner, directly or indirectly, of securities representing more than 50% of the combined voting power of the then outstanding securities of CME Ltd. entitled to vote generally in the election of directors;
|
(ii)
|
the date on which the majority of the members of the Board of Directors of CME Ltd. are not Incumbent Directors;
|
(iii)
|
a reorganization, merger, amalgamation or consolidation involving CME Ltd., unless securities representing more than 50% of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors of CME Ltd. or the company resulting from such transaction (or the parent of such company) are held subsequent to such transaction by the person or persons who were the beneficial holders of the outstanding voting securities entitled to vote generally in the election of directors of CME Ltd. immediately prior to such transaction; or
|
(iv)
|
the sale, transfer or other disposition of all or substantially all of the assets of CME Ltd.
|
DATED
|
3 May 2010
|
CONTRACT OF EMPLOYMENT
|
Name and Address of Employer:
|
CME Media Services Limited, 5 Fleet Place, London EC4M 7RD, United Kingdom (the “
Company
”)
|
|
Name and Address of Employee:
|
Andrei Boncea
[address redacted]
|
|
Date this Contract takes effect:
|
3 May 2010
|
1
|
COMMENCEMENT OF AND CONDITIONS TO EMPLOYMENT
|
1.1
|
Your employment with the Company shall commence on 3 May 2010 or such other date as agreed between you and the President and Chief Executive Officer of the CME group, subject to compliance with clause 1.2 below (the “
Commencement Date
”). No previous period of employment shall count as continuous employment.
|
1.2
|
You shall establish to the Company’s satisfaction (through production of original documents reasonably requested by us) that you are entitled to live and work in the Czech Republic without any additional approvals. You will notify the Company immediately if you cease to be so entitled at any time during your employment with the Company.
|
1.3
|
You represent and warrant that you are not bound by or subject to any contract, court order, agreement, arrangement or undertaking which in any way restricts or prohibits you from entering into this Contract or performing your duties under it.
|
2
|
JOB TITLE AND DUTIES
|
2.1
|
Your job title is Head of Media Pro Entertainment reporting to the President and Chief Executive Officer of the CME group.
|
2.2
|
Your main duties are:
|
|
2.2.1
|
managing the operations of Media Pro Entertainment;
|
|
2.2.2
|
acting as statutory director of such entities of the CME group as may be determined from time to time;
|
|
2.2.3
|
undertaking such additional tasks in respect of the business of the CME group as the President and Chief Executive Officer of the CME group directs from time to time; and
|
|
2.2.4
|
travel to such countries as directed by the President and Chief Executive Officer of the CME group to undertake tasks specified by the President and Chief Executive Officer of the CME group. In addition to your main duties you will be required to carry out such other duties consistent with your position as the Company may from time to time reasonably require.
|
2.3
|
You shall use your best endeavours to promote and protect the interests of the CME group and shall not do anything that is harmful to those interests.
|
2.4
|
You shall devote the whole of your working time (unless prevented by ill-health or accident or otherwise directed by the Company) to the duties of this Contract and you shall not be directly or indirectly interested or concerned in any manner in any other business (other than holding as a bona-fide personal investment equity in any company whose shares are listed on any recognised exchange or does not otherwise contravene clause 17) except with the Company’s prior written consent. If such consent is given, you must provide the Company with the number of hours worked for any other employer each month.
|
3
|
PLACE OF WORK
|
3.1
|
You will be based in the Company’s Prague branch office or at such other location as the Company may from time to time reasonably require. However, it is agreed that your position will require that you spend extensive time travelling for the proper performance of your duties.
|
3.2
|
The duties of this appointment shall relate primarily to the countries in which the CME group operates. You may also be required to travel to other destinations from time to time as reasonably required by the Company for the proper performance of your duties.
|
4
|
REMUNERATION
|
4.1
|
Your basic salary is EUR 488,000 per year, payable monthly in arrears from the period commencing April 1, 2010 by credit transfer into your bank account after all necessary deductions for relevant taxes and social security payments. Your salary will be reviewed on an annual basis. The first review will take place on or about the first anniversary of your Commencement Date. Any increase is entirely at the Company’s discretion.
|
4.2
|
You shall also be entitled to a one-off payment in the amount of EUR 58,282. Such amount shall be paid at the same time and by the same method as your first salary payment is paid and shall be subject to all necessary deductions for relevant taxes and social security payments.
|
4.3
|
You shall be entitled to participate in the CME Management Compensation Policy in effect from time to time (the “
Policy
”). The amount, if any, of any bonus awarded pursuant to the Policy shall be determined by the President and Chief Executive Officer of the CME group, pursuant to the rules of the Policy. Any bonus awarded will be based on a figure representing 75% of your gross annual salary.
|
5
|
OTHER BENEFITS
|
5.1
|
You are entitled to membership of such insurance schemes (each referred to below as an “
insurance scheme
”) provided by the Company from time to time, including a medical and dental expenses insurance scheme providing such cover for you and your spouse/partner and any children under the age of eighteen (18) as the Company may from time to time notify to you.
|
5.2
|
Benefits shall be subject to the terms of any applicable insurance policy and are conditional upon your complying with and satisfying any applicable requirements of the insurers or other benefits provider. Copies of these rules and policies and particulars of the requirements shall be provided to you on request. The Company shall not have any liability to pay any benefit to you under any insurance scheme unless it receives payment of the benefit from the insurer under the scheme.
|
5.3
|
Any insurance scheme which is provided for you is also subject to the Company’s right to alter the cover provided or any term of the scheme or to cease to provide (without replacement) the scheme at any time if in the reasonable opinion of the Company your state of health is or becomes such that the Company is unable to insure the benefits under the scheme at the normal premiums applicable.
|
5.4
|
The provision of any insurance scheme or any benefits hereunder does not in any way prevent the Company from lawfully terminating this Contract in accordance with the provisions in clause 9 even if to do so would deprive you of membership of or cover under any such scheme or benefit.
|
6
|
EXPENSES
|
|
The Company shall reimburse you for all reasonable expenses incurred by you in the proper performance of your duties under this Contract on production of appropriate receipts in accordance with the CME Group Expenses Policy in effect from time to time.
|
7
|
HOURS OF WORK
|
|
Your normal working hours are 40 hours per week Monday to Friday together with such additional hours as may be necessary for the proper performance of your duties. This may include working in the evenings, outside normal office hours, at weekends or on public holidays. No additional pay or time off will be permitted.
|
8
|
HOLIDAYS
|
8.1
|
You are entitled to 25 days’ holiday per annum (in addition to public holidays).
|
8.2
|
Your entitlement to holiday accrues pro rata on an annual basis as calculated from 1 April until 31 March (inclusive) each year (the “
Holiday Year
”).
|
8.3
|
On termination, you will be paid only for accrued vacation in the relevant Holiday Year and not for vacation carried over from the previous year.
|
8.4
|
The Company may also refuse to allow you to take holiday in circumstances where it would be inconvenient to the business of the Company. If, in exceptional circumstances, the Company is forced to cancel holiday previously booked by you, all reasonable and properly documented accommodation, reservation and travel expenses incurred by you in connection therewith up to the date of cancellation that are not otherwise refundable will be reimbursed by the Company.
|
9
|
TERMINATION
|
9.1
|
The Company may terminate this Contract on giving you 12 months’ notice in writing to expire at any time. You are required to give the Company the same period of notice, to expire at any time.
|
9.2
|
The Company may at any time and in its absolute discretion (whether or not any notice of termination has been given under clause 9.1 above) terminate this Contract with immediate effect and make a payment in lieu of notice. This payment will be comprised solely of your basic salary (at the rate payable when this option is exercised) in respect of the portion of the notice period remaining at the time the Company exercises this option and shall be subject to deductions for income tax and social security as appropriate. You will not, under any circumstances, have any right to payment in lieu unless the Company has exercised its option to pay in lieu of notice.
|
9.3
|
At the election of the Company, the payment in lieu of notice will be made at the times the Company would have made payments to you had notice not been given or on expiry of the remainder of the period of notice.
|
9.4
|
Your employment may be terminated by the Company for Cause at any time without notice or payment in lieu of notice. For purposes of this Contract, “
Cause
” shall mean (i) the commission by you of any act or omission that would constitute a felony or an indictable offence under United States federal, state or equivalent foreign law; (ii) your gross negligence, recklessness, dishonesty, fraud, disclosure of trade secrets,or confidential information, willful malfeasance or willful misconduct in the performance of services to the Company; (iii) willful misrepresentation by you which is injurious to the Company; (iv) your willful failure without reasonable justification to comply with reasonable directions of the President and Chief Executive Officer of the CME group; or (v) a willful and material breach of your duties or obligations under this Contract.
|
9.5
|
Upon the termination by whatever means of this Contract you shall immediately return to the Company all documents, computer media and hardware, credit cards, mobile phones and communication devices, keys and all other property belonging to or relating to the business of the Company which is in your possession or under your power or control and you must not retain copies of any of the above.
|
10
|
SUSPENSION
|
10.1
|
The Company may suspend you from your duties on full pay to allow the Company to investigate any bona-fide complaint made against you in relation to your employment with the Company.
|
10.2
|
Provided you continue to enjoy your full contractual benefits and receive your pay in accordance with this Contract, the Company may in its absolute discretion do all or any of the following during the notice period or any part of the notice period, after you or the Company have given notice of termination to the other, without breaching this Contract or incurring any liability or giving rise to any claim against it:
|
|
10.2.1
|
exclude you from the premises of any company of the CME group;
|
|
10.2.2
|
require you to carry out only specified duties (consistent with your status, role and experience) or to carry out no duties;
|
|
10.2.3
|
announce to any of its employees, suppliers, customers and business partners that you have been given notice of termination or have resigned (as the case may be);
|
|
10.2.4
|
prohibit you from communicating in any way with any or all of the suppliers, customers, business partners, employees, agents or representatives of the CME group until your employment has terminated except to the extent that you are authorised by the General Counsel of the CME group in writing; and
|
|
10.2.5
|
require you to comply with any other reasonable conditions imposed by the Company.
|
10.3
|
You will continue to be bound by all obligations owed to the Company under this Contract until termination of this Contract in accordance with clause 9 or such later date as provided herein.
|
11
|
CONFIDENTIAL INFORMATION
|
11.1
|
You agree during and after the termination of your employment not to use or disclose to any person (and shall use your best endeavours to prevent the use, publication or disclosure of) any confidential information:
|
|
11.1.1
|
concerning the business of the CME group and which comes to your knowledge during the course of or in connection with your employment or your holding office with the CME group; or
|
|
11.1.2
|
concerning the business of any client or person having dealings with the CME group and which is obtained directly or indirectly in circumstances where the CME group is subject to a duty of confidentiality.
|
11.2
|
For the purposes of clause 11.1.1 above, information of a confidential or secret nature includes but is not limited to information disclosed to you or known, learned, created or observed by you as a consequence of or through your employment with the Company, not generally known in the relevant trade or industry about the Company or any member of the CME group’s business activities, services and processes, including but not limited to information concerning advertising, sales promotion, publicity, sales data, research, programming and plans for programming, finances, accounting, methods, processes, business plans (including prospective or pending licence applications or investments in licence holders or applicants), client or supplier lists and records, potential client or supplier lists, and client or supplier billing.
|
11.3
|
This clause shall not apply to information which is:
|
|
11.3.1
|
used or disclosed in the proper performance of your duties or with the consent of the Company;
|
|
11.3.2
|
ordered to be disclosed by a court of competent jurisdiction or otherwise required to be disclosed by law or pursuant to the rules of any applicable stock exchange; or
|
12
|
INTELLECTUAL PROPERTY
|
12.1
|
You shall assign with full title your entire interest in any Intellectual Property Right (as defined below) to the Company to hold as absolute owner.
|
12.2
|
You shall communicate to the Company full particulars of any Intellectual Property Right in any work or thing created by you and you shall not use, license, assign, purport to license or assign or disclose to any person or exploit any Intellectual Property Right without the prior written consent of the Company.
|
12.3
|
In addition to and without derogation of the covenants imposed by the Law of Property (Miscellaneous Provisions) Act 1994, you shall prepare and execute such instruments and do such other acts and things as may be necessary or desirable (at the request and expense of the Company) to enable the Company (or its nominee) to obtain protection of any Intellectual Property Right vested in the Company in such parts of the world as may be specified by the Company (or its nominee) and to enable the Company to exploit any Intellectual Property Right vested in it to its best advantage.
|
12.4
|
You hereby irrevocably appoint the Company to be your attorney in your name and on your behalf to sign, execute or do any instrument or thing and generally to use your name for the purpose of giving to the Company (or its nominee) the full benefit of the provisions of this clause and a certificate in writing signed by any director or the secretary of the Company that any instrument or act relating to such Intellectual Property Right falls within the authority conferred by this clause shall be conclusive evidence that such is the case in favour of any third party.
|
12.5
|
You hereby waive all of your moral rights (as defined in the Copyright, Designs and Patents Act 1988) in respect of any act by the Company and any act of a third party done with the Company’s authority in relation to any Intellectual Property Right which is or becomes the property of the Company.
|
12.6
|
“
Intellectual Property Right
” means a copyright, know-how, trade secret and any other intellectual property right of any nature whatsoever throughout the world (whether registered or unregistered and including all applications and rights to apply for the same) which:
|
|
12.6.1
|
relates to the business or any product or service of the Company; and
|
|
12.6.2
|
is invented, developed, created or acquired by you (whether alone or jointly with any other person) during the period of your employment with the Company;
|
|
and for these purposes and for the purposes of the other provisions of this clause 13, references to the Company shall be deemed to include references to any Associated Company (as defined in clause 17.11 below).
|
13
|
COLLECTIVE AGREEMENTS/WORKFORCE AGREEMENTS
|
|
There are no collective agreements or workforce agreements applicable to you or which affect your terms of employment.
|
14
|
DATA PROTECTION
|
14.1
|
You acknowledge that the Company will hold personal data relating to you. Such data will include your employment application, address, references, bank details, performance appraisals, work, holiday and sickness records, next of kin, salary reviews, remuneration details and other records (which may, where necessary, include sensitive data relating to your health and data held for equal opportunities purposes). The Company will hold such personal data for personnel administration and management purposes and to comply with its obligations regarding the retention of your records. Your right of access to such data is as prescribed by law.
|
14.2
|
By signing this Contract, you agree that the Company may process personal data relating to you for personnel administration and management purposes and may, when necessary for those purposes, make such data available to its advisors, to third parties providing products and/or services to the Company and as required by law.
|
15
|
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
|
|
Unless the right of enforcement is expressly granted, it is not intended that a third party should have the right to enforce the provisions of this Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
|
16
|
MONITORING OF COMPUTER SYSTEMS
|
16.1
|
The Company will monitor messages sent and received via the email and voicemail system to ensure that employees are complying with the CME group’s Information Technology policy in effect from time to time.
|
16.2
|
The Company reserves the right to retrieve the contents of messages for the purpose of monitoring whether the use of the email system is in accordance with the Company’s best practice, whether use of the computer system is legitimate, to find lost messages or to retrieve messages lost due to computer failure, to assist in the investigations of wrongful acts or to comply with any legal obligation.
|
16.3
|
You should be aware that no email or voicemail sent or received through the Company’s system is private. The Company reserves and intends to exercise its right to review, audit, intercept, access and disclose on a random basis all messages created from it or sent over its computer system for any purpose. The contents of email or voicemail so obtained by the Company in the proper exercise of these powers may be disclosed without your permission. You should be aware that the emails or voicemails or any document created on the Company’s computer system, however confidential or damaging, may have to be disclosed in court or other proceedings. An email which has been trashed or deleted can still be retrieved.
|
16.4
|
The Company further reserves and intends to exercise its right to monitor all use of the internet through its information technology systems, to the extent authorised by law. By your signature to this Contract, you consent to any such monitoring.
|
17
|
POST-EMPLOYMENT RESTRICTIONS
|
17.1
|
For the duration of your employment with the Company and for a period of six (6) months after the termination thereof for any cause, you shall not:
|
17.2
|
either on your own account or on behalf of any other person, firm or company, directly or indirectly, carry on or be engaged, concerned or interested in any business the same as that of the CME group or which is competitive with any CME Business (as hereinafter defined)
and with which you were actively involved at any time in the twelve months preceding the termination of your employment within the territories in which the CME group operates or is considering to operate (the “
Territory
”);
|
17.3
|
seek to do business and/or do business, perform any services or supply any goods or seek to do so, in competition with any company of the CME group with any person, firm or company who at any time during the twelve months preceding the termination of your employment was a client, customer or supplier of any company of the CME group and with whom during that period you or another person on your behalf had contact or dealings in the ordinary course of business or were aware of in the course of your employment;
|
17.4
|
interfere or seek to interfere or take such steps as may or are calculated to interfere with the continuance of supplies (whether services or goods) or any rights of purchase, sale, import, distribution or agency enjoyed by or supplied to any company of the CME group, or the terms on which they are so supplied or enjoyed, from any person, firm or company supplying or offering rights to any company of the CME group at any time during the period of twelve months prior to such termination;
|
17.5
|
solicit, entice or procure or endeavour to solicit, entice or procure any employee of the CME group to breach his contract of employment or any person to breach his contract for services with the Company or any Associated Company;
|
17.6
|
in relation to any CME Business in the Territory, solicit, employ, engage or offer or cause to be employed or engaged, whether directly or indirectly, any employee, director or consultant of any company of the CME group engaged or employed at the date of termination of your employment or at any time during the twelve months preceding such termination who has knowledge of confidential aspects of the business of the CME group, and with whom, at any time during the period of twelve months prior to such termination, you had material dealings and/or
|
17.7
|
you shall not at any time falsely represent yourself as being connected with or interested in the Company or any Associated Company or in the business of the CME group.
|
17.8
|
For the duration of your employment with the Company, you shall not, either on your own account or through any other person, firm or company, directly or indirectly, carry on, accept or be engaged, concerned or interested in, any opportunity (a “
Corporate Opportunity
”) in Central and Eastern Europe and any other country that Central European Media Enterprises Ltd. (“
CME Ltd.
”) has identified from time to time (i) which is in the line of business of any company of the CME group from time to time (including, without limitation, securing broadcasting licenses, operating television stations, broadcasting on any distribution platform, selling advertising on any platform, developing and operating internet sites, providing production services, producing programming and other content for broadcast on any platform or for exhibition, distributing or licensing content for exhibition, home entertainment or otherwise, providing other programming services, owning and operating cinemas) (each a “
CME Business
”) or in any Ancillary Business (ii) which arises or becomes known to you as a result of your employment by the Company, or (iii) in which it can reasonably be expected that the CME group has an interest or expectancy (including any Ancillary Business) unless (a) you have presented the Corporate Opportunity to the Board of Directors of CME Ltd. in reasonable detail and (b) the Board of Directors has decide not to pursue such Corporate Opportunity after such presentation by you.
|
|
For purposes of this clause, “
Ancillary Business
” means any business or opportunity that is related to any CME Business, can reasonably be expected to a customer or supplier of goods or services of any such CME Business in the usual and ordinary course of business, or is otherwise necessary to support the primary activities of any CME Business.
|
17.9
|
Each of the restrictions in this clause shall be enforceable independently of each other and its validity shall not be affected if any of the others is invalid. If any of the restrictions is void but would be valid if some part of the restriction were deleted, the restriction in question shall apply with such modification as may be necessary to make it valid.
|
17.10
|
The restrictions set forth in this clause 17 shall not apply if the Company is in breach of this Contract.
|
17.11
|
For the purposes of this Contract, “
Associated Company
” shall mean a subsidiary (as defined by the Companies Act 1985 as amended) and any other company which is for the time being a holding company (as defined by the Companies Act 1985 as amended) of the Company or another subsidiary of such holding company.
|
18
|
INDEMNITY
|
18.1
|
The Company will indemnify you and pay on your behalf all Expenses (as defined below) incurred by you in any Proceeding (as defined below), whether the Proceeding which gave rise to the right of indemnification pursuant to this Contract occurred prior to or after the date of this Contract provided that you shall promptly notify the Company of such Proceeding and the Company shall be entitled to participate in such Proceeding and, to the extent that it wishes, jointly with you, assume the defence thereof with counsel of its choice. This indemnification shall not apply if it is determined by a court of competent jurisdiction in a Proceeding that any losses, claims, damages or liabilities arose primarily out of your gross negligence, wilful misconduct or bad faith.
|
18.2
|
The term “
Proceeding
” shall include any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether brought in the name of the Company or otherwise and whether of a civil, criminal, administrative or investigative nature, including, but not limited to, actions, suits or proceedings brought under or predicated upon any securities laws, in which you may be or may have been involved as a party or otherwise, and any threatened, pending or completed action, suit or proceeding or any inquiry or investigation that you in good faith believe might lead to the institution of any such action, suit or proceeding or any such inquiry or investigation, in each case by reason of the fact that you are or were serving at the request of the Company as a director, officer or manager of any other Associated Company, whether or not you are serving in such capacity at the time any liability or expense is incurred for which indemnification or reimbursement can be provided under this Contract.
|
18.3
|
The term “
Expenses
” shall include, without limitation thereto, expenses (including, without limitation, attorneys fees and expenses) of investigations, judicial or administrative proceedings or appeals, damages, judgments, fines, penalties or amounts paid in settlement by or on behalf of you and any expenses of establishing a right to indemnification under this Contract.
|
18.4
|
The Expenses incurred by you in any Proceeding shall be paid by the Company as incurred and in advance of the final disposition of the Proceeding at your written request. You hereby agree and undertake to repay such amounts if it shall ultimately be decided in a Proceeding that you are not entitled to be indemnified by the Company pursuant to this Contract or otherwise.
|
18.5
|
The indemnification and advancement of Expenses provided by this Contract shall not be deemed exclusive of any other rights to which you may be entitled under the Company’s Articles of Association or the constituent documents of any other Associated Company for which you are serving as a director, officer or manager at the request of the Company, the laws under which the Company was formed, or otherwise, and may be exercised in any order you elect and prior to, concurrently with or following the exercise of any other such rights to which you may be entitled, including pursuant to directors’ and officers’ insurance maintained by the Company, both as to action in official capacity and as to action in another capacity while holding such office, and the exercise of such rights shall not be deemed a waiver of any of the provisions of this Contract. To the extent that a change in law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded under this Contract, it is the intent of the parties hereto that you shall enjoy by this Contract the greater benefit so afforded by such change. The provisions of this clause shall survive the expiration or termination, for any reason, of this Contract and shall be separately enforceable.
|
19
|
GENERAL
|
19.1
|
You hereby authorise the Company to deduct from any salary payable to you any sums owing by you to the Company.
|
19.2
|
As from the effective date of this Contract, all other agreements or arrangements between you and the Company shall cease to have effect.
|
19.3
|
This Contract shall be governed by and construed in accordance with English law. The parties agree to submit to the non-exclusive jurisdiction of the English courts in respect of any dispute hereunder.
|
Signed as a Deed by CME Media Services Limited acting by:
|
||
Daniel Penn, Director
|
/s/ Daniel Penn
|
|
Dave Sturgeon, Director
|
/s/ Dave Sturgeon
|
|
Signed as a Deed by Andrei Boncea
|
/s/ Andrei Boncea
|
|
in the presence of:
|
||
Witness signature:
|
/s/ Velciu Gilda Valentina
|
|
Name:
|
Velciu Gilda Valentina
|
|
Address:
|
||
Occupation:
|
Business Administration Director
|
Page
|
||
1
|
Definitions and Interpretation
|
4
|
2
|
Transaction and Consideration
|
8
|
3
|
Conditions to Obligations at Closing
|
9
|
4
|
Closing
|
10
|
5
|
Obligations Prior to Closing
|
12
|
6
|
Representations and Warranties
|
12
|
7
|
Further Undertakings
|
14
|
8
|
Anti-Money Laundering and Anti-Corruption
|
15
|
9
|
Status of Agreement and Effect
|
15
|
10
|
Confidentiality
|
16
|
11
|
Trade Restrictions
|
16
|
12
|
Notices
|
17
|
13
|
Set-Off
|
19
|
14
|
Entire Agreement
|
19
|
15
|
Third Party Rights
|
19
|
16
|
Amendments
|
20
|
17
|
Waiver
|
20
|
18
|
Costs and Expenses
|
20
|
19
|
Joint and Several Liability
|
20
|
20
|
Assignment
|
20
|
21
|
No Partnership
|
20
|
22
|
Severability
|
20
|
23
|
Further Assurance
|
21
|
24
|
Counterparts
|
21
|
25
|
Governing Law and Jurisdiction
|
21
|
26
|
Dispute Resolution
|
21
|
Schedule 1 Deed of Termination
|
Sch 1-1
|
|
Schedule 2 Investment Agreement
|
Sch 2-1
|
(1)
|
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
");
|
(2)
|
CME DEVELOPMENT FINANCING B.V.,
a company organized under the laws of the Netherlands, and having its seat at Dam 5b, JS 1012 Amsterdam, the Netherlands ("
CME DF
");
|
(3)
|
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 3
rd
Floor, Omar Hodge Building, Wickhams Cay I, P.O. Box 362, Road Town, Tortola, British Virgin Islands ("
Top Tone Holdings
"); and
|
(4)
|
KRASSIMIR GUERGOV
, a citizen of the Republic of Bulgaria, residing at 19, Oborishte Str., 1504 Sofia, Bulgaria, holder of identity card no. 184961630 issued by the Republic of Bulgaria (the "
Consultant
");
|
(A)
|
CME ME owns 80% of the issued share capital of Top Tone Media (as defined below) and 80% of the issued share capital of Zopal (as defined below), Top Tone Holdings own 20% of the issued share capital of Top Tone Media and 20% of the issued share capital of Zopal;
|
(B)
|
CME ME has entered into a Shareholders Agreement with Top Tone Holdings and Equip (as defined below) (the "
Top Tone Parties
") dated 1 August 2008 (the "
Pro.BG Shareholders Agreement
") to regulate the business and affairs of the Pro.BG Group (as defined below);
|
(C)
|
CME ME has entered into a Master Share Purchase Agreement dated 28 July 2008 with Top Tone Holdings (the "
MSPA
");
|
(D)
|
CME ME has entered into a Consultancy Deed with the Consultant dated 1 August 2008 (the "
Consultancy Deed
");
|
(E)
|
CME ME has entered into a Letter Agreement with the Top Tone Parties and the Consultant dated 1 August 2008 (the "
Letter Agreement
" and together with the Pro.BG Shareholders Agreement, the MSPA and the Consultancy Deed, the "
Pro.BG Agreements
");
|
(F)
|
CME ME intends that its wholly-owned subsidiary CME Bulgaria B.V., a company organized in the Netherlands ("
CME BG
"), acquire 100% of the issued share capital of Balkan News Corporation and 100% of the issued share capital of TV Europe (the "
bTV Transaction
") pursuant to a Deed relating to the Sale and Purchase of Certain Media Interests in Bulgaria among CME ME, Central European Media Enterprises Ltd., News Netherlands B.V. and News Corporation dated 18 February 2010 ("
bTV SPA
"), as adhered to by CME BG pursuant to a deed of adherence dated 14 April 2010 by and among CME BG, CME ME, News Netherlands B.V. and News Corporation;
|
(G)
|
CME DF is a wholly-owned subsidiary of CME ME;
|
(H)
|
In connection with and subject to the completion of the bTV Transaction:
|
|
(i)
|
Top Tone Holdings wishes to sell and CME DF wishes to purchase the Shares (as defined below) on the terms and subject to the conditions set out in this Agreement;
|
|
(ii)
|
CME ME, Top Tone Holdings and the Consultant wish to amend certain agreements reached between themselves by terminating certain provisions of the Pro.BG Agreements; and
|
|
(iii)
|
CME ME wishes to sell and Top Tone Holdings wishes to purchase the CME BG Shares (as defined below) on the terms and subject to the conditions set out in this Agreement,
|
(I)
|
CME ME, Top Tone Holdings and the Consultant entered into a Sale and Purchase Agreement on 18 February 2010 (the "
SPA
"); and
|
(J)
|
The Parties wish to amend and restate the SPA on the terms set out in this Agreement.
|
1
|
Definitions and Interpretation
|
1.1
|
In this Agreement:
|
"
Affiliate
"
|
of a person means, in relation to any corporate entity, any person that directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such person and in relation to any individual, any family member of such individual;
|
"
Agreed Form
"
|
means, in relation to a document, the form of that document which has been initialed for the purposes of identification only by either CME ME or CME DF, on the one hand, and Top Tone Holdings on the other with such alterations as may be agreed from time to time between the Parties for any reason;
|
"
Anti-Money
Laundering Laws
"
|
has the meaning set forth in Clause 6.3.1;
|
"
Applicable Law
"
|
means all laws, ordinances, regulations, judgments, decrees, decisions, writs, awards, orders or, directives of any governmental authority, and international treaties or any other agreements to which a governmental authority is a party, to the extent applicable to the Parties, this Agreement, the Investment Agreement or the business of the Parties;
|
"
Balkan Media
Group
"
|
means Balkan Media Group AD, a company incorporated under the laws of Bulgaria;
|
"
Balkan News
Corporation
"
|
means Balkan News Corporation EAD, a company organized under the laws of Bulgaria, which is to be renamed bTV Media Group EAD;
|
"
BCPC
"
|
means the Bulgarian Commission for the Protection of Competition;
|
"
bTV SPA
"
|
has the meaning set forth in the Recitals;
|
"
bTV Transaction
"
|
has the meaning set forth in the Recitals;
|
"
Business Day
"
|
means a day (other than a Saturday or a Sunday) on which commercial banks are open for general business in, Sofia, New York and London (other than solely for services via the internet);
|
"
Call
"
|
has the meaning set forth in the Investment Agreement;
|
"
Closing
"
|
means the completion of the sale and purchase of the Shares as described in Clause 4;
|
"
Closing Date
"
|
has the meaning set forth in Clause 4.2.1;
|
"
CME BG
"
|
has the meaning set forth in the Recitals;
|
"
CME BG Shares
"
|
has the meaning set forth in Clause 2.3(i);
|
"
CME Group
"
|
means Central European Media Enterprises Ltd. and its subsidiaries;
|
"
Consultancy Deed
"
|
has the meaning set forth in the Recitals;
|
"
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;
|
"
Deed of Termination
"
|
means the deed of termination to be entered into between CME ME, Top Tone Holdings and KG in substantially the form set out in Schedule 1;
|
"
Drag Along Right
"
|
has the meaning set forth in the Investment Agreement;
|
"
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 incorporated under the laws of the British Virgin Islands;
|
"
Execution Date
"
|
means the date hereof;
|
"
Existing Dispute
"
|
has the meaning set forth in Clause 26.3;
|
"
Investment Agreement
"
|
means the investment agreement to be entered into between the Parties in respect of their Ownership Interests and in accordance with Clause 2.4;
|
"
Letter Agreement
"
|
has the meaning set forth in the Recitals;
|
"
Long Stop Date
"
|
has the meaning set forth in the bTV SPA;
|
"
MSPA
"
|
has the meaning set forth in the Recitals;
|
"
Ownership Interests
"
|
has the meaning set forth in the Investment Agreement;
|
"
Put
"
|
has the meaning set forth in the Investment Agreement;
|
"
Pro.BG Agreements
"
|
has the meaning set forth in the Recitals;
|
"
Pro.BG Business
"
|
means the broadcasting operations of the Pro.BG Group;
|
"
Pro.BG Group
"
|
means Top Tone Media and Zopal and their respective subsidiaries;
|
"
Pro.BG Shareholders
Agreement
"
|
has the meaning set forth in the Recitals;
|
"
Radiocompany C.J.
"
|
means Radiocompany C.J OOD, a company incorporated under the laws of Bulgaria;
|
"
Related Dispute
"
|
has the meaning set forth in Clause 26.3;
|
"
Share Option
"
|
has the meaning set forth in the Investment Agreement;
|
"
Shares
"
|
means the Top Tone Media Shares and the Zopal Shares;
|
"
Tag-Along Right
"
|
has the meaning set forth in the Investment Agreement;
|
"
Top Tone Media
"
|
means Top Tone Media S.A., a public limited liability company (société anonyme) organized under the laws of Luxembourg with registered number B 124257 and having its registered office at
13-
15 Avenue de la Liberté, L-1931 Luxembourg;
|
"
Top Tone Media Shares
"
|
means the 620 ordinary shares in Top Tone Media with a par value of EUR10 per share in the share capital of Top Tone Media held by Top Tone Holdings;
|
"
Top Tone Parties
"
|
has the meaning set forth in the Recitals;
|
"
Transaction
"
|
has the meaning set forth in the Recitals;
|
"
Transaction Documents
"
|
means this Agreement, the Deed of Termination, the Investment Agreement and any other document or agreement which the Parties designate as such;
|
"
TV Europe
"
|
means TV Europe B.V., a company incorporated under the laws of the Netherlands;
|
"
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;
|
"
Working Hours
"
|
means the hours of 9:00 a.m. to 5:00 p.m. on a Business Day;
|
"
Zopal
"
|
means Zopal S.A., a public limited liability company (société anonyme) organized under the laws of Luxembourg with registered number B 139431 and having its registered office at
13-
15 Avenue de la Liberté, L-1931 Luxembourg; and
|
"
Zopal Shares
"
|
means the 20 ordinary shares in Zopal with a par value of EUR310 per share in the share capital of Zopal held by Top Tone Holdings.
|
1.2
|
In construing this Agreement, unless otherwise specified:
|
|
(a)
|
references to Clauses and Schedules are to clauses of, and schedules to, this Agreement;
|
|
(b)
|
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);
|
|
(c)
|
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;
|
|
(d)
|
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);
|
|
(e)
|
references to time are to Central European Time;
|
|
(f)
|
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;
|
|
(g)
|
headings, recitals and titles are for convenience only and do not affect the interpretation of this Agreement;
|
|
(h)
|
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; and
|
|
(i)
|
references to a "
Party
" or the "
Parties
" shall be construed as to include and each of its or their permitted successors and permitted assignees.
|
2
|
Transaction
and Consideration
|
2.1
|
Purchase of the Shares
|
|
(i)
|
Subject to the terms and conditions herein, including the satisfaction of the conditions set out in Clause 3, Top Tone Holdings agrees to sell the Shares and CME DF, relying on the Warranties and undertakings contained in this Agreement, agrees to purchase the Shares.
|
|
(ii)
|
The Shares shall be sold with full title guarantee free from all Encumbrances and together with all rights attaching to them as at the date of this Agreement.
|
|
(iii)
|
Top Tone Holdings shall procure that on or prior to Closing any and all rights of pre-emption over the Shares (other than any pre-emption rights held by CME ME) are waived irrevocably by the persons entitled thereto.
|
|
(iv)
|
CME DF shall not be obliged to complete the purchase of any of the Shares unless the purchase of all of the Shares is completed simultaneously.
|
|
(v)
|
The consideration payable to Top Tone Holdings for the sale of the Shares shall be €1.
|
2.2
|
Deed of Termination
|
2.3
|
Purchase of CME BG Shares
|
|
(i)
|
Subject to the terms and conditions herein, CME ME shall sell to Top Tone Holdings 1,200 ordinary shares in CME BG representing 6% of the issued share capital in CME BG on the Closing Date (the "
CME BG Shares
").
|
|
(ii)
|
The consideration payable to CME ME for the sale of the CME BG Shares shall be US$17,700,000.
|
2.4
|
CME ME and Top Tone Holdings undertake to enter into the Investment Agreement at Closing. The Investment Agreement shall be in the Agreed Form as attached in Schedule 2 of this Agreement.
|
3
|
Conditions to Obligations at Closing
|
3.1
|
The Closing is conditional on the satisfaction or waiver by CME ME pursuant to Clause 3.2 of all of the following conditions on or prior to the Long Stop Date:
|
|
3.1.1
|
Completion (as defined in the bTV SPA) of the bTV Transaction having occurred;
|
|
3.1.2
|
Top Tone Holdings 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 Top Tone Holdings;
|
|
3.1.3
|
the Warranties given by Top Tone Holdings and the Consultant shall be true and accurate in all material respects as of the Closing Date, or, if not true, shall have been remedied to the reasonable satisfaction of CME ME;
|
|
3.1.4
|
CME ME, Top Tone Holdings and the Consultant hereto shall have entered into the Deed of Termination with respect to the termination of rights and obligations in the Pro.BG Shareholders Agreement and the Consultancy Deed as set forth therein;
|
|
3.1.5
|
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;
|
|
3.1.6
|
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
|
|
3.1.7
|
the receipt by CME ME of a waiver in the Agreed Form from the Consultant in respect of all past, present or future charges, complaints, causes of action, demands or other claims of any nature whatsoever it or any of its Affiliates may have with respect to or against Balkan News Corporation, TV Europe, Triada, Balkan Media Group, Radiocompany C.J. relating to or arising under the provision of any consultancy, advisory or similar services by the Consultant or any of its Affiliates to such entities or the legal and beneficial ownership in or any Encumbrance over any share capital in any such entity prior to the Closing.
|
3.2
|
CME ME may at any time waive, in whole or in part, conditionally or unconditionally, any condition set out in Clause 3.1 above by notice in writing to Top Tone Holdings.
|
3.3
|
If any condition specified in Clause 3.1 is not satisfied (or has not been waived by CME ME pursuant to Clause 3.2) on or before the Long Stop Date, except for this Clause 3.3 and Clauses 1, 10, 12 to 26, all of the provisions of this Agreement shall, unless otherwise agreed by the Parties in writing, lapse and cease to have effect and neither the lapsing of these provisions nor their ceasing to have effect shall affect any accrued rights or liabilities of the Parties in respect of damages for non-performance of any obligation under this Agreement falling due for performance prior to such lapse or cessation.
|
4
|
Closing
|
4.1
|
The Closing shall take place in London at the offices of Dewey & LeBoeuf LLP at 1 Minister Court, Mincing Lane, London EC3R 7YL, or at such other location as agreed by the Parties following the satisfaction or waiver of the conditions set out in Clause 3.1.
|
4.2
|
The Parties shall cause:
|
|
4.2.1
|
the Closing to occur promptly after the date on which the conditions in Clause 3.1 have been satisfied or waived (the "
Closing Date
"); and
|
4.3
|
On the Closing Date,
|
|
4.3.1
|
CME DF shall pay to Top Tone Holdings €1.
|
|
4.3.2
|
CME ME shall:
|
|
(i)
|
pay to Top Tone Holdings US$17,980,000 as set out in the Deed of Termination;
|
|
(ii)
|
cause the CME BG Shares to be transferred to Top Tone Holdings;
|
|
(iii)
|
deliver to the Consultant on behalf of Top Tone Holdings and the Consultant the Deed of Termination duly executed by CME ME;
|
|
(iv)
|
deliver to Top Tone Holdings the Investment Agreement duly executed by CME ME; and
|
|
(v)
|
deliver to Top Tone Holdings a closing certificate in a form to be agreed by the Parties.
|
|
4.3.3
|
Top Tone Holdings shall:
|
|
(i)
|
deliver to CME DF instruments of transfer in respect of the Shares, duly executed and completed in favour of CME DF;
|
|
(ii)
|
deliver to CME DF any and all duly executed powers of attorney or other authorities under which any of the transfers have been executed;
|
|
(iii)
|
deliver to CME DF certified copies of the minutes recording the resolution of the board of directors of Top Tone Holdings authorizing the sale of the Shares and the execution of the transfers in respect of them;
|
|
(iv)
|
deliver to CME DF a closing certificate a form to be agreed by the Parties and, if reasonably requested by CME DF, other confirmations of the satisfaction of the conditions set out in Clause 3.1;
|
|
(v)
|
deliver to CME DF any share certificates representing the Shares duly endorsed in the Agreed Form;
|
|
(vi)
|
pay to CME ME US$17,700,000 as set out in Clause 2.3(ii);
|
|
(vii)
|
deliver to CME ME the Deed of Termination duly executed by Top Tone Holdings;
|
|
(viii)
|
deliver to CME ME the Investment Agreement duly executed by Top Tone Holdings; and
|
|
(ix)
|
deliver to CME ME any other Transaction Documents required to be executed by Top Tone Holdings.
|
|
4.3.4
|
The Consultant shall deliver to CME ME:
|
|
(ii)
|
any other Transaction Documents required to be executed by the Consultant so executed, as applicable.
|
4.4
|
All deliveries of documents and actions contemplated by this Clause 4 to take place at Closing shall be deemed to have taken place simultaneously as part of a single transaction, none of which shall be considered to have taken place unless and until all such actions shall have taken place.
|
5
|
Obligations Prior to Closing
|
5.1
|
From and including the Execution Date and up to and including the earlier of the Closing Date and the Long Stop Date, each of the Parties shall (on its own behalf and on behalf of any Affiliate):
|
|
5.1.1
|
take all reasonable steps or provide reasonable support, and not fail to take any actions, in respect of any proposed change in Applicable Law that is reasonably likely to have a detrimental effect on the Pro.BG Business;
|
|
5.1.2
|
not cause or do any act or thing, the commission of which would constitute a breach of any Warranty given by that Party or any of its Affiliates contained herein or which would make any such Warranty inaccurate at the Closing Date; and
|
|
5.1.3
|
to take such other actions as are required in order for such Party to consummate the transactions contemplated hereby and to give full effect to this Agreement.
|
6
|
Representations and Warranties
|
6.1
|
Top Tone Holdings hereby represents and warrants to CME ME and CME DF as of the Execution Date and as of the Closing Date that:
|
|
6.1.1
|
it is a corporation validly existing under the laws of the British Virgin Islands and it has the full power, authority and right to enter into and carry out its obligations hereunder;
|
|
6.1.2
|
the Transaction Documents to which it is a party constitute its valid and legally binding obligations;
|
|
6.1.3
|
the entry into and performance by it of each Transaction Document to which it is a party and the transactions contemplated by such Transaction Document do not and will not conflict with:
|
|
(i)
|
any law or regulation or judicial or other order;
|
|
(ii)
|
its constitutional documents; or
|
|
(iii)
|
any document which is binding on it or on any of its assets;
|
|
6.1.4
|
the Shares constitute the whole of the issued, allotted and paid up share capital in Top Tone Media and Zopal owned by Top Tone Holdings;
|
|
6.1.5
|
Top Tone Holdings is entitled to sell and transfer to CME ME the full legal and beneficial ownership of the Shares on the terms of this Agreement and has the right to exercise all voting rights in respect of the Holding Shares;
|
|
6.1.6
|
the Shares are free from all Encumbrances;
|
|
6.1.7
|
Top Tone Holdings is not aware of any notice of any request to correct or rectify the shareholders registers of Top Tone Media or Zopal;
|
|
6.1.8
|
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 Shares under this Agreement;
|
|
6.1.9
|
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 Shares; and
|
|
6.1.10
|
all consents for the transfer of the Shares have been obtained.
|
6.2
|
The Consultant hereby represents and warrants to CME ME and CME DF as of the Execution Date and as of the Closing Date that:
|
|
6.2.1
|
it has the full power, authority and right to enter into and carry out its obligations hereunder;
|
|
6.2.2
|
the Transaction Documents to which it is a party constitute its valid and legally binding obligations;
|
|
6.2.3
|
the entry into and performance by it of each Transaction Document to which it is a party and the transactions contemplated by such Transaction Document do not and will not conflict with:
|
|
(i)
|
any law or regulation or judicial or other order; or
|
|
(ii)
|
any document which is binding on it or on any of its assets.
|
6.3
|
Each of Top Tone Holdings and the Consultant hereby represents and warrants to CME ME and CME DF as of the Execution Date and as of the Closing Date that:
|
|
6.3.1
|
the Shares did not derive from, are not related to, and were not purchased with funds deriving from any activity that is deemed criminal under U.K. Law, U.S. Law, Bermuda Law, Dutch Law, Bulgarian Law or the Applicable Law of the jurisdiction in which such activity takes place. Transfer to CME ME of the Shares shall not cause CME to be in violation of any applicable laws against money laundering (
Anti-Money Laundering Laws
); and
|
|
6.3.2
|
Top Tone Holdings and the Consultant have since January 1, 2005 been in compliance with the requirements of U.S. Foreign Corrupt Practices Act of 1977, as amended, and the requirements of all applicable anti-corruption law. Since January 1, 2005, Top Tone Holdings and the Consultant have not, directly or indirectly, offered, promised, authorized or made any unlawful contribution, gift, entertainment or other unlawful payment to any foreign or domestic government official or employee, or any political party, party official, political candidate or official of any public international organization. The Consultant is not and has not since January 1, 2005 been an official, officer, director or employee of and does not act and has not since January 1, 2005 acted in an official capacity for or on behalf of any foreign or domestic government or government-owned or controlled entity.
|
6.4
|
Each of CME ME and CME DF hereby represents and warrants to Top Tone Holdings and the Consultant as of the Execution Date and as of the Closing Date that:
|
|
6.4.1
|
it is a corporation validly existing under the laws of the Netherlands and it has the full power, authority and right to enter into and carry out its obligations hereunder;
|
|
6.4.2
|
the Transaction Documents to which it is a party constitute its valid and legally binding obligations;
|
|
6.4.3
|
the entry into and performance by it of each Transaction Document to which it is a party and the transactions contemplated by such Transaction Document do not and will not conflict with:
|
|
(i)
|
any law or regulation or judicial or other order;
|
|
(ii)
|
its constitutional documents; or
|
|
(iii)
|
any document which is binding on it or on any of its assets; and
|
6.5
|
At Closing the CME BG Shares (if not newly issued) shall be transferred with full title guarantee free from all Encumbrances.
|
6.6
|
Each of the warranties set out in Clauses 6.1.1, 6.1.2, 6.1.3 and 6.2.1, 6.2.2 and 6.2.3 above are deemed to be repeated by Top Tone Holdings and the Consultant, as applicable, upon the exercise and upon the completion of the Share Option, the Drag Along Right the Tag Along Right, the Put or the Call.
|
7
|
Further Undertakings
|
7.1
|
In connection with the implementation of the bTV Transaction, Top Tone Holdings hereby irrevocably and unconditionally waives any rights, remedies or claims which it may have against CME ME or any other member of the CME Group in respect of the Pro.BG Shareholders Agreement including but not limited to clauses 9.1, 9.2 and 10 of the Pro.BG Shareholders Agreement.
|
7.2
|
Without prejudice to Clause 7.1 above, in connection with the implementation of the bTV Transaction Top Tone Holdings and the Consultant hereby agrees to (i) fully cooperate with and promptly provide CME ME with such information regarding the businesses and affairs of Top Tone Holdings as CME ME or the BCPC may require in connection with the bTV Transaction and (ii) accept all such undertakings, conditions or obligations adopted or imposed by the BCPC in order to address any serious competition concern which is notified to CME ME by the BCPC in relation to the bTV Transaction.
|
7.3
|
The Parties agree that if CME ME reasonably determines that an alternative acquisition structure to that set out in Clause 2 provides preferable tax and accounting treatment, the Parties shall cooperate in good faith to agree on and implement an alternative structure or make any appropriate changes to the existing structure and accordingly this Agreement and any of the relevant Transaction Documents. All such changes shall in all material respects result in maintaining the same balance of commercial and economic interests of the Parties as existed before making any such changes.
|
8
|
Anti-Money Laundering and Anti-Corruption
|
8.1
|
Top Tone Holdings and the Consultant acknowledge that Central European Media Enterprises Ltd. and each member of the CME Group have since 1 August 2008 complied and will continue to comply with the Anti-Money Laundering Laws, including taking any action necessary to do so.
|
8.2
|
Top Tone Holdings and the Consultant agree not to offer, promise, authorize or make, directly or indirectly, any unlawful contribution, gift, entertainment or other unlawful payment to any foreign or domestic government official or employee, or any political party, party official, political candidate or official of any public international organization.
|
8.3
|
Top Tone Holdings agrees to provide CME ME with such information as CME determines to be necessary or appropriate to comply with the Anti-Money Laundering Laws or to respond to requests for information concerning the identity of CME's shareholders from any governmental authority, self-regulatory organization or financial institution in connection with its anti-money laundering compliance procedures, or to update such information. In addition, each of Top Tone Holdings and the Consultant and their respective Affiliates is not and has not since 1 August 2008 been a Person identified as a terrorist organization or otherwise as a sanctioned Person on any relevant lists maintained by a governmental authority, including the U.S. Department of the Treasury's List of Specially Designated Nationals and Blocked Persons.
|
9
|
Status of Agreement
and Effect
|
|
Each Party shall, to the extent that it is able to do so, exercise all its voting rights and other powers in relation to Top Tone Media and Zopal to procure that the provisions of this Agreement are properly and promptly observed and given full force and effect.
|
10
|
Confidentiality
|
10.1
|
No Party shall divulge or communicate to any person (other than those of its shareholders, directors, employees and professional advisers whose province it is to know the same) or use or exploit for any reason whatsoever this Agreement or the matters contemplated hereby or the information disclosed by either Party to the other Party, and shall use its reasonable endeavours to prevent its employees from so acting.
|
10.2
|
Notwithstanding the provisions of Clause 10.1, 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.
|
10.3
|
The restrictions contained in this Clause 10 shall continue to apply for a period of three (3) years following the expiration or termination of this Agreement.
|
11
|
Trade Restrictions
|
11.1
|
Each of Top Tone Holdings and the Consultant hereby jointly and severally undertakes and covenants with CME ME that it shall not, and shall procure that its Affiliates shall not, for a period of two years after the termination of the Investment Agreement, either on its own behalf or in any other capacity whatsoever directly or indirectly carry on or be concerned or engaged or interested directly or indirectly (whether as principal, shareholder, partner, employee, officer, agent or otherwise) in any part of any trade or business competing with any part of any the trade or business of the Pro.BG Group (save for any interest in the shares or other securities of a company traded on a securities market so long as such interest does not extend to more than 3% of the issued share capital of the company or the class of securities concerned or as disclosed in writing to CME ME on the Execution Date).
|
11.2
|
Each of Top Tone Holdings and the Consultant hereby jointly and severally undertakes and covenants with CME ME that it shall not, and shall procure that its Affiliates shall not, for a period of two years after the termination of the Investment Agreement, either on its own behalf or in any other capacity whatsoever directly or indirectly:
|
|
11.2.1
|
deal with, solicit, approach or offer goods or services to, for purposes of enticing away from CME ME and/or the Pro.BG Group, any person, firm or company who is or was a client, customer, supplier, agent or distributor of CME ME, its Affiliates and/or the Pro.BG Group during the term of this Agreement or in the twelve (12) months prior to the termination of the Investment Agreement; or
|
|
11.2.2
|
approach, solicit, entice away or endeavour to entice away, employ, offer employment to or procure the employment of any person who is or was an employee of CME ME, its Affiliates or Pro.BG Group whether or not such person would commit any breach of his contract of employment by reason of so leaving the service of CME ME or the Pro.BG Group or otherwise; or
|
|
11.2.3
|
interfere or seek to interfere with the continuance, or any of the terms, of the supply of goods or services to CME ME, its Affiliates or the Pro.BG Group; or
|
|
11.2.4
|
represent itself as being in any way connected with or interested in the business of CME ME, its Affiliates and/or the Pro.BG Group (other than as a consultant if such be the case) or use any name which is identical or similar to or likely to be confused with the name of CME ME, its Affiliates and/or the Pro.BG Group or any product or service produced or provided by CME ME, its Affiliates and/or the Pro.BG Group or which might suggest a connection with CME ME, its Affiliates and/or the Pro.BG Group.
|
11.3
|
Each of the restrictions contained in Clauses 11.1, 11.2.1, 11.2.2, 11.2.3 and 11.2.4 is separate and distinct and is to be construed separately from the other such restrictions. Each of Top Tone Holdings and the Consultant hereby jointly and severally acknowledges (having received professional advice) that it considers such restrictions to be reasonable both individually and in the aggregate and that the duration, extent and application of each of such restrictions is no greater than is necessary for the protection of the goodwill of the businesses of the Pro.BG Group and the CME Group.
|
12
|
Notices
|
12.1
|
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:
|
|
(a)
|
on receipt, when delivered personally;
|
|
(b)
|
on the next following Business Day following being transmitted by facsimile with suitable proof of transmission; or
|
|
(c)
|
three Business Days following being sent by an international courier service.
|
12.2
|
For purposes of this Clause, the authorized address and facsimile details of the Parties shall be as follows:
|
12.3
|
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.
|
13
|
Set-Off
|
|
The Parties agree that CME ME shall be entitled to set-off any and all amounts due to Top Tone Holdings under or in connection with this Agreement from any and all amounts due from Top Tone Holdings to CME ME in connection with this Agreement.
|
14
|
Entire Agreement
|
14.1
|
This Agreement together with the other Transaction Documents constitute the whole agreement between the Parties and supersedes any arrangements, understanding or previous agreement between them relating to the subject matter to which they relate.
|
14.2
|
Each Party acknowledges that in entering into this Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, assurance or warranty of any person other than as expressly set out in this Agreement.
|
14.3
|
Nothing in this Clause 14 operates to limit or exclude any liability for fraud.
|
15
|
Third Party Rights
|
16
|
Amendments
|
17
|
Waiver
|
17.1
|
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.
|
17.2
|
None of the terms of this Agreement may be waived except by an instrument in writing duly executed by the waiving Party.
|
18
|
Costs
and Expenses
|
19
|
Joint and Several Liability
|
19.1
|
Unless expressly provided otherwise in this agreement, Top Tone Holdings and the Consultant shall be jointly and severally liable for their respective obligations and liabilities arising under this Agreement.
|
19.2
|
CME ME or CME DF may take action against, or release or compromise the liability of, any of Top Tone Holdings or the Consultant, or grant time or other indulgence, without affecting the liability of Top Tone Holdings or the Consultant, as applicable.
|
20
|
Assignment
|
21
|
No Partnership
|
22
|
Severability
|
23
|
Further Assurance
|
24
|
Counterparts
|
25
|
Governing Law and Jurisdiction
|
26
|
Dispute Resolution
|
26.1
|
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 26, except to the extent modified by this Clause 26. The tribunal shall consist of three arbitrators. CME ME and CME DF shall nominate one arbitrator, Top Tone Holdings and the Consultant shall jointly nominate one arbitrator and the third arbitrator shall be appointed by the two arbitrators nominated by the Parties. Any Party shall have the right to initiate the proceedings.
|
26.2
|
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.
|
26.3
|
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.
|
26.4
|
The Parties agree that money damages would not be a sufficient remedy for any breach of this Agreement by Top Tone Holdings or the Consultant and that in addition to all other remedies, CME ME and CME DF shall be entitled to specific performance and to injunctive or other equitable relief as remedies for any such breach or threatened breach of this Agreement by Top Tone Holdings or the Consultant 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
|
EXECUTED
and
DELIVERED
as a
DEED
|
)
|
|
by
|
)
|
|
CME MEDIA ENTERPRISES B.V.
|
)
|
|
acting by Pan Invest B.V, represented by
|
)
|
|
G. v. d. Berg
|
)
|
/s/ Gerben van den Berg
|
in the presence of:
|
)
|
|
/s/ M.C. Peters – v. Spaendonck
|
||
Signature of Witness
|
||
Name of Witness: M.C. Peters-v. Spaendonck
|
||
Occupation of Witness: Acc. Manager
|
||
Address of Witness:
|
||
and Alphons van Spaendonck
|
)
|
/s/ Alphons van Spaendonck
|
in the presence of:
|
)
|
|
/s/ M.C. Peters – v. Spaendonck
|
||
Signature of Witness
|
||
Name of Witness: M.C. Peters-v. Spaendonck
|
||
Occupation of Witness: Acc. Manager
|
||
Address of Witness:
|
||
EXECUTED
and
DELIVERED
as a
DEED
|
)
|
|
by
|
)
|
|
CME DEVELOPMENT FINANCING B.V.
|
)
|
|
acting by Pan Invest B.V, represented by
|
)
|
|
G. v. d. Berg
|
)
|
/s/ Gerben van den Berg
|
in the presence of:
|
)
|
|
/s/ M.C. Peters – v. Spaendonck
|
||
Signature of Witness
|
||
Name of Witness: M.C. Peters-v. Spaendonck
|
||
Occupation of Witness: Acc. Manager
|
||
Address of Witness:
|
||
and Alphons van Spaendonck
|
)
|
/s/ Alphons van Spaendonck
|
in the presence of:
|
)
|
|
/s/ M.C. Peters – v. Spaendonck
|
||
Signature of Witness
|
||
Name of Witness: M.C. Peters-v. Spaendonck
|
||
Occupation of Witness: Acc. Manager
|
||
Address of Witness:
|
EXECUTED
and
DELIVERED
as a
DEED
by
|
)
|
|
VLADIMIR KRASTEV BROUSSARSKI
|
)
|
|
acting as attorney for
|
)
|
|
TOP TONE MEDIA HOLDINGS LIMITED
|
)
|
/s/ Vladimir Krastev Broussarski
|
under a power of attorney dated 16 February 2010
|
)
|
|
in the presence of:
|
||
/s/ Ivanka Gogova
|
||
Name of Witness: Ivanka Gogova
|
Signature of Witness
|
|
Occupation of Witness: Head of Office
|
||
Address of Witness:
|
||
EXECUTED
and
DELIVERED
as a
DEED
by
|
)
|
|
ROSSITSA PENCHEVA FILIPOVA
|
)
|
|
acting as attorney for
|
)
|
|
TOP TONE MEDIA HOLDINGS LIMITED
|
)
|
/s/ Rossitsa Pencheva Filipova
|
under a power of attorney dated 16 February 2010
|
)
|
|
in the presence of:
|
||
/s/ Ivanka Gogova
|
||
Name of Witness: Ivanka Gogova
|
Signature of Witness
|
|
Occupation of Witness: Head of Office
|
||
Address of Witness:
|
||
EXECUTED
and
DELIVERED
as a
DEED
by
|
)
|
|
KRASSIMIR GUERGOV
|
)
|
|
in the presence of:
|
)
|
/s/ Krassimir Guergov
|
/s/ Elitsa Menkova
|
||
Name of Witness: Elitsa Menkova
|
Signature of Witness
|
|
Occupation of Witness: Personal Assistant
|
||
Address of Witness:
|
1.
|
Definitions
|
3
|
|
2.
|
Transfer of Ownership Interests
|
6
|
|
3.
|
Share Option
|
8
|
|
4.
|
Tag Along Right
|
9
|
|
5.
|
Drag Along Right
|
9
|
|
6.
|
Put Option
|
10
|
|
7.
|
Call Option
|
11
|
|
8.
|
Provision Relating to Transfers
|
12
|
|
9.
|
Events of Default
|
12
|
|
10.
|
Provisions Relating to Valuation
|
13
|
|
11.
|
Additional Undertakings
|
14
|
|
12.
|
Trade Restrictions
|
15
|
|
13.
|
Confidentiality
|
16
|
|
14.
|
Termination and Consequences of Termination
|
17
|
|
15.
|
Notices
|
17
|
|
16.
|
Entire Agreement
|
18
|
|
17.
|
Third Party Rights
|
18
|
|
18.
|
Amendments
|
19
|
|
19.
|
Waiver
|
19
|
|
20.
|
Costs and Expenses
|
19
|
|
21.
|
Assignment
|
19
|
|
22.
|
No Partnership
|
19
|
|
23.
|
Severability
|
19
|
|
24.
|
Further Assurance
|
19
|
|
25.
|
Counterparts
|
20
|
|
26.
|
Governing Law and Jurisdiction
|
20
|
|
27.
|
Dispute Resolution
|
20
|
|
Schedule 1 Deed of Adherence
|
22
|
(1)
|
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
|
(2)
|
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 3
rd
Floor, Omar Hodge Building, Wickhams Cay I, P.O. Box 362, Road Town, Tortola, British Virgin Islands ("
Top Tone Holdings
"),
|
(A)
|
CME ME entered into an Amended and Restated Sale and Purchase Agreement as of 19 April 2010 (the "
SPA
") with CME Development Financing B.V., Top Tone Holdings and Guergov (as such term is defined below);
|
(B)
|
Pursuant to the SPA, Top Tone Holdings will purchase a six per cent. (6%) interest in CME Bulgaria;
|
(C)
|
As of the date hereof, CME Bulgaria has a capital structure comprised of US$295,000,000 in equity and the CME Bulgaria Loan; and
|
(D)
|
In connection with the SPA the Parties thereto have agreed to enter into this Agreement for the purpose of defining their respective rights and obligations with regards to their Ownership Interests.
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1.
|
Definitions
|
1.1
|
In this Agreement:
|
"
Affiliate
"
|
of a person means, in relation to any corporate entity, any person that directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such person and in relation to any individual, any family member of such individual;
|
|
"
Applicable Law
"
|
means all laws, ordinances, regulations, judgments, decrees, decisions, writs, awards, orders or, directives of any governmental authority, and international treaties or any other agreements to which any governmental authority is a party, to the extent applicable to the Parties, this Investment Agreement, the SPA or the business of the Parties;
|
|
"
Balkan News Corporation
"
|
means Balkan News Corporation EAD, a company organized under the laws of Bulgaria, which is to be renamed bTV Media Group EAD;
|
"
bTV Group
"
|
means Balkan News Corporation, TV Europe, Triada and Radiocompany C.J.;
|
|
"
bTV SPA
"
|
means the deed relating to the sale and purchase of certain media interests in Bulgaria dated 18 February 2010 between (amongst others) CME ME and News Netherlands B.V.;
|
|
"
Business Day
"
|
means a day (other than a Saturday or a Sunday) on which commercial banks are open for general business in Sofia, New York and London (other than solely for services via the internet);
|
|
"
Call
"
|
has the meaning given thereto in Clause 7.1;
|
|
"
Call Closing Date
"
|
has the meaning given thereto in Clause 7.3(c);
|
|
"
Call Notice
"
|
has the meaning given thereto in Clause 7.3;
|
|
"
Call Price
"
|
means an amount equal to the Relevant Percentage of the Valuation;
|
|
"
Closing
"
|
has the meaning given thereto in the SPA;
|
|
"
Combined Business
"
|
has the meaning given thereto in Clause 2.5;
|
|
"
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;
|
|
"
CME Bulgaria
"
|
CME Bulgaria B.V., a company organized under the laws of the Netherlands, and having its seat at Dam 5B 1012JS Amsterdam;
|
|
"
CME Bulgaria Loan
"
|
means the loan to CME Bulgaria in the aggregate principal amount of Euro 87,000,000 (equivalent to approximately US$118,000,000) on the date hereof and interest thereon;
|
|
"
CME Group
"
|
means Central European Media Enterprises Ltd. and its subsidiaries;
|
|
"
CME Investment Bank
"
|
means an Investment Bank appointed by CME ME for the purposes of determining a Valuation;
|
|
"
CME ME
"
|
has the meaning given thereto in the Recitals;
|
|
"
CME Valuation
"
|
has the meaning given thereto in Clause 10.1(a);
|
"
Disposal Notice
"
|
has the meaning given thereto in Clause 4.1;
|
|
"
Distributable Reserves
"
|
means the sum of (i) "accumulated profit/(loss) brought forward" and (ii) "profit/(loss) for the year" as reported in the statutory accounts of CME Bulgaria as of any relevant reference date;
|
|
"
Drag Along
Notice
"
|
has the meaning given thereto in Clause 5.1;
|
|
"
Drag Along Right
"
|
has the meaning given thereto in Clause 5.1;
|
|
"
Encumbrance
"
|
has the meaning given thereto in the SPA;
|
|
"
Event of Default
"
|
has the meaning given thereto in Clause 9.1;
|
|
"
Execution Date
"
|
means the date hereof;
|
|
"
Existing Dispute
"
|
has the meaning given thereto in Clause 27.3;
|
|
"
Guergov
"
|
means Krassimir Guergov, a citizen of the Republic of Bulgaria, residing at 19, Oborishte Str., 1504 Sofia, Bulgaria, holder of identity card no. 184961630 issued by the Republic of Bulgaria;
|
|
"
Independent Investment Bank
"
|
has the meaning given thereto in Clause 10.5;
|
|
"
Investment Bank
"
|
means an international investment bank of recognised international standing with experience conducting valuations of broadcasting assets;
|
|
"
Ownership Interests
"
|
means the shares, participation rights or other equity ownership interest of CME ME, any of its Affiliates or Top Tone Holdings in CME Bulgaria;
|
|
"
Person
"
|
has the meaning given thereto in the SPA;
|
|
"
Pro.BG Business
"
|
has the meaning given thereto in the SPA;
|
|
"
Pro.BG Group
"
|
has the meaning given thereto in the SPA;
|
|
"
Pro.BG Loans
"
|
means the loans outstanding to the Pro.BG Group from time to time;
|
|
"
Purchaser
"
|
has the meaning given thereto in Clause 4.1;
|
|
"
Put
"
|
has the meaning given thereto in Clause 6.1;
|
|
"
Put Closing Date
"
|
has the meaning given thereto in Clause 6.4(c);
|
|
"
Put Notice
"
|
has the meaning given thereto in Clause 6.4;
|
|
"
Put Objection Notice
"
|
has the meaning given thereto in Clause 6.6;
|
|
"
Put Price
"
|
means an amount equal to Relevant Percentage of the Valuation;
|
"
Radiocompany C.J.
"
|
means Radiocompany C.J OOD, a company organized under the laws of Bulgaria;
|
|
"
Related Dispute
"
|
has the meaning given thereto in Clause 27.3;
|
|
"
Relevant Percentage
"
|
means the percentage of the issued share capital of CME Bulgaria over which the Share Option is exercised pursuant to Clause 3, the Put is exercised pursuant to Clause 6 or the Call is exercised pursuant to Clause 7;
|
|
"
Share Option
"
|
has the meaning given thereto in Clause 3.1;
|
|
"
Share Option
Notice
"
|
has the meaning given thereto in Clause 3.5;
|
|
"
Share Option Objection Notice
"
|
has the meaning given thereto in Clause 3.6;
|
|
"
Share Option Price
"
|
has the meaning given thereto in Clause 3.3;
|
|
"
SPA
"
|
has the meaning given thereto in the Recitals;
|
|
"
Tag Along
Notice
"
|
has the meaning given thereto in Clause 4.3;
|
|
"
Tag Along Right
"
|
has the meaning given thereto in Clause 4.2;
|
|
"
Top Tone Holdings
"
|
has the meaning given thereto in the Recitals;
|
|
"
Top Tone Holdings Investment Bank
"
|
means an Investment Bank appointed by Top Tone Holdings for the purposes of determining a Valuation;
|
|
"
Top Tone Holdings Valuation
"
|
has the meaning given thereto in Clause 10.1(b);
|
|
"
Top Tone Transferee
"
|
has the meaning given thereto in Clause 2.3;
|
|
"
Transaction Documents
"
|
means this Agreement, the SPA, the Deed of Termination and any other document or agreement which the Parties execute to implement the transactions contemplated hereby and thereby and designate as such;
|
|
"
Triada
"
|
means Triada Communications EOOD, a company organized under the laws of Bulgaria;
|
|
"
TV Europe
"
|
means TV Europe B.V., a company organized under the laws of the Netherlands;
|
|
"
US Dollars
" or "
US$
"
|
means the official currency for the time being of the United States of America;
|
|
"
Valuation
"
|
has the meaning set forth in Clause 10; and
|
|
"Working Hours"
|
means the hours of 9.00 a.m. to 5.00 p.m. on a Business Day.
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2.
|
Transfer of Ownership Interests
|
2.1
|
CME ME or any Affiliate(s) to whom its Ownership Interests have been directly or indirectly transferred may sell, transfer, grant any security interest over or otherwise dispose of all or any part of its Ownership Interest in CME Bulgaria at any time and on any terms.
|
2.2
|
Save under and pursuant to Clause 2.3, the Tag Along Right, the Drag Along Right, the Put, or the Call, Top Tone Holdings may not sell, transfer or otherwise dispose of, grant any option over or create or permit any Encumbrance on or over all or any part of its Ownership Interest in respect of CME Bulgaria or any other rights or privileges it may have in connection with its Ownership Interest in respect of CME Bulgaria without the prior written consent of CME ME.
|
2.3
|
Top Tone Holdings shall be permitted to sell, transfer or otherwise dispose of such Ownership Interests to an Affiliate of Top Tone Holdings which is Controlled and 100% beneficially owned by Guergov ("
Top Tone Transferee
") without the need to obtain prior written consent from CME ME,
provided that
Top Tone Holdings shall procure that such Top Tone Transferee:
|
|
(a)
|
enters into a deed of adherence in the agreed form set out in Schedule 1 hereto at the time of sale, transfer or disposition of such Ownership Interests agreeing to be bound by the terms of this Agreement in place of Top Tone Holdings;
|
|
(b)
|
shall not sell, transfer or otherwise dispose of such Ownership Interests to a person that is not an Affiliate of Top Tone Holdings which is Controlled and 100% beneficially owned by Guergov; and
|
|
(c)
|
immediately transfers back to Top Tone Holdings (or, if Top Tone Holdings is no longer Controlled and 100% beneficially owned by Guergov, an entity Controlled and 100% beneficially owned by Guergov) its Ownership Interests in the event that the Top Tone Transferee ceases to Controlled and 100% beneficially owned by Guergov.
|
2.4
|
CME ME (or any of its Affiliates to whom its Ownership Interests have been directly or indirectly transferred) may create or permit any Encumbrance on or over all or any part of its Ownership Interest or its voting rights or any other rights or privileges they may have in connection with its Ownership Interest. CME ME or its Affiliates, as applicable shall provide notice to Top Tone Holdings of any such Encumbrance.
|
2.5
|
Following the Closing, to the extent permitted under Applicable Law and any agreement or instrument to which CME ME or any member of the CME Group is a party, CME ME intends to:
|
|
(a)
|
operate the Pro.BG Business and the bTV Group on a combined basis (the "
Combined Business
"); and
|
|
(b)
|
use its reasonable endeavours to cause the Pro.BG Business to be transferred to CME Bulgaria by 31 December 2010.
|
2.6
|
CME ME undertakes to procure that CME Bulgaria causes a supervisory board to be created at Balkan News Corporation consisting of up to five (5) members. Top Tone Holdings shall be entitled to nominate one (1) member to such supervisory board. The Parties agree to consult with one another on the nominees to the supervisory board to ensure that members with appropriate qualifications are appointed. Any of the members of the supervisory board can nominate a candidate to be a news director.
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3.
|
Share Option
|
3.1
|
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Top Tone Holdings shall, subject to the provisions of this Clause 3, have the irrevocable and unconditional right to acquire up to 4% of the issued share capital of CME Bulgaria (the "
Share Option
").
|
3.2
|
The Share Option shall be exercisable at any time from the Execution Date to the third anniversary of the Closing.
|
3.3
|
The price to be paid for the CME Bulgaria shares subject to the Share Option shall be (i) US$2,950,000 for each 1% interest acquired, up to an aggregate of US$11,800,000, if the Share Option is exercised on or before the first anniversary of the Closing or (ii) the Relevant Percentage of the Valuation if the Share Option is exercised at any time immediately following the first anniversary of the Closing to the third anniversary of the Closing (the "
Share Option Price
").
|
3.4
|
The right of Top Tone Holdings to exercise the Share Option is conditional upon the following:
|
|
(a)
|
neither Top Tone Holdings nor any of its Affiliates being in material breach of any of the Transaction Documents;
|
|
(b)
|
Top Tone Holdings having full unencumbered right and title to its entire Ownership Interest in CME Bulgaria at the date of consummation of the Share Option pursuant to Clause 3.7; and
|
|
(c)
|
no Event of Default having occurred and be continuing.
|
3.5
|
Top Tone Holdings may only exercise the Share Option once and by giving a written exercise notice (a "
Share Option Notice
") to CME ME and CME Bulgaria. Once given, a Share Option Notice shall be irrevocable.
|
3.6
|
If CME ME receives a Share Option Notice, CME ME may give written notice (a "
Share Option
Objection Notice
") to Top Tone Holdings within ten (10) Business Days of the receipt of such Share Option Notice of any objections to the exercise of the Share Option. If such Share Option Objection Notice contains valid grounds for objection, the Share Option shall not be exercisable. If the grounds for objection specified in the Share Option Objection Notice are capable of remedy, Top Tone Holdings may remedy any such grounds for objection. If, following such a remedy, Top Tone Holdings wishes to exercise the Share Option, it shall recommence the process outlined in this Clause 3.
|
3.7
|
The consummation of the Share Option shall take place at such time and place as may be specified in the Share Option Notice in accordance with the foregoing but not less than ten (10) Business Days after the receipt of the Share Option Notice by CME ME or otherwise agreed among the Parties. CME ME shall have no obligation to transfer the shares in CME Bulgaria under the Share Option unless all conditions to the exercise of the Share Option are satisfied and remain satisfied on the date of transfer of the shares in CME Bulgaria. Top Tone Holdings shall pay the full amount of the Share Option Price to such bank account as is nominated in writing for such purpose by CME ME.
|
3.8
|
The Parties agree that if they determine that the transfer and payment arrangements described in this Clause 3 are not structured properly to optimize the tax and accounting treatment to the level intended by the Parties, they shall cooperate in good faith to agree on and implement an alternative structure or make any appropriate changes to the existing structure and accordingly this Agreement. All such changes shall in all material respects result in maintaining the same balance of commercial and economic interests of the Parties as existed before making any such changes.
|
4.
|
Tag Along Right
|
4.1
|
If CME ME proposes to effect a sale, transfer or other disposal of all or a majority of its Ownership Interest in CME Bulgaria other than to an Affiliate, it shall serve a notice of such proposed sale, transfer or other disposal (a "
Disposal Notice
") on Top Tone Holdings which shall state:
|
|
(a)
|
what percentage of its relevant Ownership Interest is to be sold, transferred or otherwise disposed of;
|
|
(b)
|
the identity of the third party purchaser (the "
Purchaser
"); and
|
|
(c)
|
the price per share and any other material terms and conditions of such proposed sale, transfer or other disposal.
|
4.2
|
If CME ME serves a Disposal Notice pursuant to Clause 4.1 above, Top Tone Holdings shall have the right (subject to Clause 4.5 below) to sell its entire
Ownership Interests in CME Bulgaria to the Purchaser at the price per share and otherwise on the terms and conditions specified in the Disposal Notice (the "
Tag Along Right
").
|
4.3
|
Top Tone Holdings may exercise the Tag Along Right within ten (10) Business Days of receipt of the Disposal Notice by delivering a written notice stating the exercise of such right to CME ME (the "
Tag Along Notice
").
|
4.4
|
By delivery of the Tag Along Notice, Top Tone Holdings agrees to sell the relevant portion of its Ownership Interest at the price per share and otherwise on the terms and conditions specified in, and concurrently with the proposed transaction described in, the Disposal Notice. Once delivered, such Tag Along Notice shall be irrevocable and Top Tone Holdings shall be obligated to deliver and sell the relevant portion of its Ownership Interest pursuant thereto and on the terms thereof.
|
4.5
|
In the event that Top Tone Holdings so exercises the Tag Along Right and that the Purchaser wishes to purchase some but not all of the Ownership Interests offered by CME ME and Top Tone Holdings, each of CME ME and Top Tone Holdings shall be entitled to sell to the Purchaser such portion of their respective Ownership Interests pro rata to the entire Ownership Interests in CME Bulgaria that are offered by CME ME and Top Tone Holdings in connection herewith.
|
4.6
|
Upon the delivery of a Put Notice, Top Tone Holdings shall be deemed to have irrevocably waived its Tag Along Right in respect of such Ownership Interest in CME Bulgaria.
|
5.
|
Drag Along Right
|
5.1
|
In addition to serving a Disposal Notice pursuant to Clause 4.1 above, CME ME shall have the right (subject to Clause 5.4 below) to require Top Tone Holdings to sell its Ownership Interest in CME Bulgaria to the Purchaser at the price per share and otherwise on the terms and conditions specified in the Disposal Notice (the "
Drag Along Right
"). CME ME may exercise the Drag Along Right by delivering a written notice stating the exercise of such right to Top Tone Holdings concurrently with or within the Disposal Notice (the "
Drag Along Notice
").
|
5.2
|
Once delivered, such Drag Along Notice shall be irrevocable. However, a Drag Along Notice shall lapse if, for any reason, CME ME has not sold its Ownership Interest by the transaction date set out in the Disposal Notice. CME ME may serve further Drag Along Notices following the lapse of any particular Drag Along Notice and Top Tone Holdings shall be obligated to deliver and sell its Ownership Interest pursuant thereto and on the terms thereof.
|
5.3
|
The Ownership Interest of Top Tone Holdings sold under this Clause 5 shall be sold at the price per share and otherwise on the terms and conditions specified in, and concurrently with the proposed transaction described in, the Disposal Notice.
|
5.4
|
In the event that CME ME so exercises the Drag Along Right and that the Purchaser wishes to purchase some but not all of the Ownership Interests offered by CME ME and Top Tone Holdings, each of CME ME and Top Tone Holdings shall be entitled to sell to the Purchaser such portion of their respective Ownership Interests pro rata to the entire Ownership Interest in CME Bulgaria that are offered by CME ME and Top Tone Holdings in connection herewith.
|
5.5
|
In the event that the Drag Along Notice is delivered prior to the first anniversary of Closing, Top Tone Holdings may exercise the Share Option at the applicable Share Option Price and the Ownership Interests acquired as a result thereof shall be included in the Ownership Interests referred to in this Clause 5.
|
6.
|
Put Option
|
6.1
|
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Top Tone Holdings shall, subject to the provisions of this Clause 6, have the irrevocable and unconditional right to require CME ME to purchase its entire Ownership Interest in CME Bulgaria at the Put Price (the "
Put
").
|
6.2
|
Subject to Clause 9.3, the Put shall be exercisable at any time following the third anniversary of the date of this Agreement.
|
6.3
|
The right of Top Tone Holdings to exercise the Put is conditional upon the following:
|
|
(a)
|
neither Top Tone Holdings nor any of its respective Affiliates being in material breach of any of the Transaction Documents;
|
|
(b)
|
Top Tone Holdings having full unencumbered right and title to its entire Ownership Interest in CME Bulgaria at the Put Closing Date; and
|
|
(c)
|
no Event of Default having occurred and be continuing.
|
6.4
|
Top Tone Holdings may only exercise the Put by giving a written exercise notice (a "
Put Notice
") to CME ME. The Put Notice shall:
|
|
(a)
|
state that Top Tone Holdings is exercising the Put;
|
|
(b)
|
request CME ME nominate the CME Investment Bank for purposes of the Valuation; and
|
|
(c)
|
state the anticipated time and place on which CME ME shall be obliged, subject to the completion of the Valuation, to acquire the entire Ownership Interest of Top Tone Holdings in exchange of payment by CME ME of the Put Price, which (subject to such terms and conditions) shall occur on a date falling not more than twenty (20) Business Days after the date on which such Valuation is completed (or, in each case, such later date as is necessary to obtain all required governmental and regulatory approvals and consents) (the "
Put Closing Date
").
|
6.5
|
Once given, a Put Notice shall be irrevocable.
|
6.6
|
If CME ME receives a Put Notice, CME ME may give written notice (a "
Put Objection Notice
") to Top Tone Holdings within ten (10) Business Days of the receipt of such Put Notice of any objections to the exercise of the Put. If such Put Objection Notice contains valid grounds for objection, the Put shall not be exercisable. If the grounds for objection specified in the Put Objection Notice are capable of remedy, Top Tone Holdings may remedy any such grounds for objection. If, following such a remedy, Top Tone Holdings wish to exercise the Put, they shall recommence the process outlined in this Clause 6.
|
6.7
|
Within twenty (20) Business Days of receipt of a Put Notice (provided that no Put Objection Notice containing valid grounds for objection has been served), each of CME ME and Top Tone Holdings shall appoint the CME Investment Bank and Top Tone Holdings Investment Bank for the purposes of determining the Valuation.
|
6.8
|
The consummation of the Put shall take place at such time and place as may be specified in the Put Notice in accordance with the foregoing or otherwise agreed among the Parties. CME ME shall have no obligation to pay any portion of the Put Price unless all conditions to the exercise of the Put are satisfied and remain satisfied on the Put Closing Date. CME ME shall pay the full amount of the Put Price to such bank account as is nominated in writing for such purpose by Top Tone Holdings.
|
6.9
|
The Parties agree that if they determine that the transfer and payment arrangements described in this Clause 6 are not structured properly to optimize the tax and accounting treatment to the level intended by the Parties, they shall cooperate in good faith to agree on and implement an alternative structure or make any appropriate changes to the existing structure and accordingly this Agreement. All such changes shall in all material respects result in maintaining the same balance of commercial and economic interests of the Parties as existed before making any such changes.
|
7.
|
Call Option
|
7.1
|
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, CME ME shall, subject to the provisions of this Clause 7, have the irrevocable and unconditional right to require Top Tone Holdings to sell to CME ME at the Call Price (the "
Call
") its entire Ownership Interest in CME Bulgaria.
|
7.2
|
Subject to Clause 9.3, the CME Call shall be exercisable at any time following the third anniversary of the date of this Agreement.
|
7.3
|
CME ME may only exercise the Call by giving a written exercise notice (a "
Call Notice
") to Top Tone Holdings. The Call Notice shall:
|
|
(a)
|
state that CME ME is exercising the Call;
|
|
(b)
|
request that Top Tone Holdings nominate Top Tone Holdings Investment Bank for purposes of the Valuation; and
|
|
(c)
|
state the anticipated time and place on which Top Tone Holdings shall be obliged, subject to the completion of the Valuation, to sell its entire Ownership Interests in exchange of payment by CME ME of the Call Price, which (subject to such terms and conditions) shall occur on a date falling not more than twenty (20) Business Days after the date on which such Valuation is completed (or, in each case, such later date as is necessary to obtain all required governmental and regulatory approvals and consents) (the "
Call Closing Date
").
|
7.4
|
Once given, a Call Notice shall be irrevocable.
|
7.5
|
Within twenty (20) Business Days of receipt of a Call Notice, each of CME ME and Top Tone Holdings shall appoint the CME Investment Bank and Top Tone Holdings Investment Bank for the purposes of determining the Valuation.
|
7.6
|
The consummation of the Call shall take place at such time and place as may be specified in the Call Notice in accordance with the foregoing or otherwise agreed among the Parties. Top Tone Holdings shall have no obligation to sell its Ownership Interest unless all conditions to the exercise of the Call are satisfied and remain satisfied on the Call Closing Date. CME ME shall pay the full amount of the Call Price to such bank account as is nominated in writing for such purpose by Top Tone Holdings.
|
7.7
|
The Parties agree that if they determine that the transfer and payment arrangements described in this Clause 7 are not structured properly to optimize the tax and accounting treatment to the level intended by the Parties, they shall cooperate in good faith to agree on and implement an alternative structure or make any appropriate changes to the existing structure. All such changes shall in all material respects result in maintaining the same balance of commercial and economic interests of the Parties as existed before making any such changes.
|
8.
|
Provision Relating to Transfers
|
9.
|
Event
s of Default
|
9.1
|
The occurrence of any of the following shall constitute an event of default with respect to a Party (an "
Event of Default
"):
|
|
(a)
|
the liquidation, administration or entry into receivership of such Party;
|
|
(b)
|
a material breach of any Transaction Documents by such Party, which remains unremedied thirty (30) Business Days after a notice by the non-defaulting Party to remedy the same; and
|
|
(c)
|
if, at any time while Top Tone Holdings holds Ownership Interests in CME Bulgaria, Guergov ceases to Control and beneficially own 100% of Top Tone Holdings.
|
9.2
|
Each Party shall notify the others of any material breach of this Agreement that it has committed, together with short details of the same.
|
9.3
|
Notwithstanding Clause 6.2 and Clause 7.2:
|
|
(a)
|
if there occurs at any time an Event of Default by CME ME, Top Tone Holdings may exercise the Put as if the Event of Default occurred after the third anniversary of the date of this Agreement;
|
|
(b)
|
if there occurs at any time an Event of Default by Top Tone Holdings, CME ME may exercise the Call as if the Event of Default occurred after the third anniversary of the date of this Agreement;
|
|
(c)
|
if there occurs at any time an Event of Default (or any material breach of this Agreement which would constitute an Event of Default with the passing of time and/or the giving of notice) by Top Tone Holdings, the Put shall not be exercisable until such time as the Event of Default has been remedied to the reasonable satisfaction of CME ME (acting reasonably); and
|
|
(d)
|
if there occurs at any time an Event of Default (or any material breach of this Agreement which would constitute an Event of Default with the passing of time and/or the giving of notice) by CME ME, the Call shall not be exercisable until such time as the Event of Default has been remedied to the reasonable satisfaction of Top Tone Holdings (acting reasonably).
|
10.
|
Provisions Relating to Valuation
|
10.1
|
For the purposes of this Agreement, Valuation of CME Bulgaria (including the bTV Group and the Pro.BG Business) shall mean the amount expressed in U.S. Dollars or, in the event CME Bulgaria reports in Euros, Euros equal to the average of:
|
|
(a)
|
the valuation of the Ownership Interest in CME Bulgaria, calculated with reference to 100% of the equity value of CME Bulgaria provided by the CME Investment Bank (the "
CME
Valuation
"); and
|
|
(b)
|
the valuation of the Ownership Interest in CME Bulgaria, calculated with reference to 100% of the equity value of CME Bulgaria provided by Top Tone Holdings Investment Bank (the "
Top Tone Holdings Valuation
"),
|
|
(c)
|
provided that
the difference between the CME Valuation and Top Tone Holdings Valuation is not more than 5%.
|
10.2
|
For purposes of the Valuation, the Pro.BG Loans shall be excluded from the total equity value of CME Bulgaria. For the avoidance of doubt, any amount of the Pro.BG Loans that is included in determining the value of the equity shall be added back for purposes of establishing the Valuation of CME Bulgaria.
|
10.3
|
For the purposes of the Valuation, the value of the Pro.BG Group shall never be less than zero and any such Valuation less than zero shall be deemed to be zero.
|
10.4
|
The Parties shall use their commercially reasonable efforts to procure that the CME Investment Bank and Top Tone Holdings Investment Bank shall:
|
|
(a)
|
agree on common valuation parameters within fifteen (15) Business Days of their respective appointments (which shall be limited to considerations of equity value only, on a "debt-free, cash-free" basis viewed as a passive investment without regard for any governance rights or any share transfer restrictions);
|
|
(b)
|
provide their valuations of the Ownership Interest within thirty (30) Business Days of their appointment,
|
|
(c)
|
conduct their respective valuations on the basis of (i) there being a willing buyer and a willing seller, (ii) a sale as a going concern (without premium or penalty on account of the relative size of the Ownership Interest to be transferred) and (iii) the conditions set out in Clauses 10.2 and 10.3,
|
|
(d)
|
act as experts and not as arbitrators, and
|
|
(e)
|
each Party shall afford to each Investment Bank all information reasonably requested by any of them for the purpose of determining their valuation as required hereunder.
|
10.5
|
In the event that the difference between the CME Valuation and Top Tone Holdings Valuation determined pursuant to Clause 10.1 is more than 5%, a third valuation from an Investment Bank jointly appointed by the CME Investment Bank and Top Tone Holdings Investment Bank (the "
Independent Investment Bank
"), shall be conducted, and the Valuation shall be the average of the middle valuation and the valuation that is nearest to it (with the third valuation being disregarded).
|
10.6
|
The Independent Investment Bank shall not have a material relationship with either CME ME or Top Tone Holdings (or any of their respective Affiliates) nor be the CME Investment Bank or Top Tone Holdings Investment Bank.
|
10.7
|
The cost of the Independent Investment Bank shall be shared equally by Top Tone Holdings on the one hand and CME ME on the other hand.
|
10.8
|
The Parties shall procure that in the event that an Independent Investment Bank is jointly appointed, CME ME and Top Tone Holdings shall each use its commercially reasonable efforts to procure that the Independent Investment Bank provide its valuation of the Ownership Interest within twenty (20) Business Days of its appointment based on the same valuation principles as referred to in Clause 10.4.
|
11.
|
Additional Undertakings
|
11.1
|
In the event CME ME invests or intends to invest in broadcasting assets in Bulgaria outside of the Combined Business and does not intend to hold such investments through CME Bulgaria or its subsidiaries, it shall notify Top Tone Holdings of such investment or intended investment. Top Tone Holdings may offer to participate in such investment either directly or through an Affiliate on such terms as may be agreed by the Parties. Any such participation shall be subject to the terms of this Agreement. CME ME may in its sole discretion decline such offer (or accept it subject to such terms and conditions as it may deem appropriate) but it shall consider such offers as are made acting reasonably.
|
11.2
|
In the event Top Tone Holdings invests or intends to invest in broadcasting assets in Bulgaria outside of the Combined Business, it shall notify CME ME of such investment or intended investment. CME ME shall have the right of first refusal with respect to any such investment and may offer to participate in such investment either directly or through an Affiliate on such terms as may be agreed by the Parties.
|
11.3
|
CME ME undertakes to procure, so far as it is able, that CME Bulgaria shall declare annually a dividend of fifty (50) per cent. of the Distributable Reserves of CME Bulgaria;
provided that
any dividends payable to Top Tone Holdings pursuant to this Clause 11.3 shall be subject to:
|
|
(a)
|
there being available cash (as determined by the board of directors of CME Bulgaria) in CME Bulgaria in the amount of the proposed dividend;
|
|
(b)
|
repayment of the CME Bulgaria Loan; and
|
|
(c)
|
no Event of Default of Top Tone Holdings being outstanding.
|
11.4
|
CME ME undertakes to procure, so far as it is able, that Balkan News Corporation shall declare annual dividends to CME Bulgaria of Distributable Reserves of Balkan News Corporation;
provided that
any dividends payable to CME Bulgaria pursuant to this Clause 11.4 shall be subject to:
|
|
(a)
|
there being available cash (as determined by the directors of Balkan News Corporation) in Balkan News Corporation in the amount of the proposed dividend; and
|
|
(b)
|
compliance with any restrictions contained in any financing agreement or other material contract to which Balkan News Corporation is a party.
|
11.5
|
Pursuant to Clause 6.6 of the SPA, Top Tone Holdings shall repeat the warranties contained in Clauses 6.1.1, 6.1.2 and 6.1.3 of the SPA and procure that Guergov repeats the warranties contained in 6.2.1 and 6.2.3 of the SPA upon the exercise and upon the completion of the Share Option, the Drag Along Right the Tag Along Right, the Put or the Call.
|
12.
|
Trade Restrictions
|
12.1
|
Top Tone Holdings undertakes and covenants with CME ME that it shall not, and shall procure that its Affiliates shall not, for the duration of this Agreement and for a period of two years after the termination of this Agreement, either on its own behalf or in any other capacity whatsoever directly or indirectly carry on or be concerned or engaged or interested directly or indirectly (whether as principal, shareholder, partner, employee, officer, agent or otherwise) in any part of any trade or business competing with any part of any the trade or business of the Pro.BG Group or the bTV Group (save for any interest in the shares or other securities of a company traded on a securities market so long as such interest does not extend to more than 3% of the issued share capital of the company or the class of securities concerned or as disclosed in writing to CME ME on Execution Date).
|
12.2
|
Top Tone Holdings hereby undertakes and covenants with CME ME that it shall not, and shall procure that its Affiliates shall not, for the duration of this Agreement and for a period of two years after the termination of this Agreement, either on its own behalf or in any other capacity whatsoever directly or indirectly:
|
|
(a)
|
deal with, solicit, approach or offer goods or services to, for purposes of enticing away from CME ME and/or the Pro.BG Group and/or the bTV Group, any person, firm or company who is or was a client, customer, supplier, agent or distributor of CME ME, its Affiliates and/or the Pro.BG Group and/or the bTV Group; or
|
|
(b)
|
approach, solicit, entice away or endeavour to entice away, employ, offer employment to or procure the employment of any person who is or was an employee of CME ME, its Affiliates, the Pro.BG Group or the bTV Group whether or not such person would commit any breach of his contract of employment by reason of so leaving the service of CME ME, the Pro.BG Group, the bTV Group or otherwise; or
|
|
(c)
|
interfere or seek to interfere with the continuance, or any of the terms, of the supply of goods or services to CME ME, its Affiliates, the Pro.BG Group or the bTV Group; or
|
|
(d)
|
represent itself as being in any way connected with or interested in the business of CME ME, its Affiliates and/or the Pro.BG Group and/or the bTV Group (other than as a shareholder) or use any name which is identical or similar to or likely to be confused with the name of CME ME, its Affiliates and/or the Pro.BG Group and/or the bTV Group or any product or service produced or provided by CME ME, its Affiliates and/or the Pro.BG Group and/or the bTV Group or which might suggest a connection with CME ME, its Affiliates and/or the Pro.BG Group and/or the bTV Group.
|
12.3
|
Each of the restrictions contained in Clauses 12.1, 12.2(a), 12.2(b), 12.2(c) and 12.2(d) is separate and distinct and is to be construed separately from the other such restrictions. Top Tone Holdings acknowledges (having received professional advice) that it considers such restrictions to be reasonable both individually and in the aggregate and that the duration, extent and application of each of such restrictions is no greater than is necessary for the protection of the goodwill of the businesses of the Pro.BG Group and the bTV Group.
|
13.
|
Confidentiality
|
13.1
|
No Party shall divulge or communicate to any person (other than those of its shareholders, directors, employees and professional advisers whose province it is to know the same) or use or exploit for any reason whatsoever this Agreement or the matters contemplated hereby or the information disclosed by either Party to the other Party, and shall use its reasonable endeavours to prevent its employees from so acting.
|
13.2
|
Notwithstanding the provisions of Clause 13.1, 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.
|
13.3
|
The restrictions contained in this Clause 13 shall continue to apply for a period of three (3) years following the expiration or termination of this Agreement.
|
14.
|
Termination and Consequences of Termination
|
14.1
|
Except for the provisions which this Clause 14.1 states shall continue in full force after termination, this Agreement shall terminate:
|
|
(a)
|
in respect of any Party, when such Party ceases to hold any Ownership Interest; or
|
|
(b)
|
when a resolution is passed by shareholders or creditors or an order made by a court or other competent body or person instituting a process that shall lead to CME Bulgaria being wound up and its assets being distributed among the creditors, shareholders or other contributors of CME Bulgaria.
|
14.2
|
This Clause 14 and the rights of the Parties in respect of antecedent breaches, shall survive termination of this Agreement.
|
15.
|
Notices
|
15.1
|
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:
|
|
(a)
|
on receipt, when delivered personally;
|
|
(b)
|
on the next following Business Day following being transmitted by facsimile with suitable proof of transmission; or
|
|
(c)
|
three Business Days following being sent by an international courier service.
|
15.2
|
For purposes of this Clause, the authorized address and facsimile details of the Parties shall be as follows:
|
15.3
|
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.
|
16.
|
Entire Agreement
|
16.1
|
This Agreement together with the other Transaction Documents constitute the whole agreement between the Parties and supersedes any arrangements, understanding or previous agreement between them relating to the subject matter to which they relate.
|
16.2
|
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.
|
16.3
|
Nothing in this Clause 16 operates to limit or exclude any liability for fraud.
|
17.
|
Third Party Rights
|
18.
|
Amendments
|
19.
|
Waiver
|
19.1
|
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.
|
19.2
|
None of the terms of this Agreement may be waived except by an instrument in writing duly executed by the waiving Party.
|
20.
|
Costs
and Expenses
|
21.
|
Assignment
|
22.
|
No Partnership
|
23.
|
Severability
|
24.
|
Further Assurance
|
25.
|
Counterparts
|
26.
|
Governing Law and Jurisdiction
|
27.
|
Dispute Resolution
|
27.1
|
Any disputes, claims or controversy arising out of or related to this Agreement, including any question as to its formation, validity, interpretation or termination, which cannot be resolved by negotiations between the Parties shall be settled by arbitration on an ad hoc basis in accordance with the Rules of the London Court of International Arbitration, which are deemed to be incorporated by reference into this Clause 27, except to the extent modified by this Clause 26. The tribunal shall consist of three arbitrators. CME ME shall nominate one arbitrator, Top Tone Holdings shall nominate one arbitrator and the third arbitrator shall be appointed by the two arbitrators nominated by the Parties. Any Party shall have the right to initiate the proceedings.
|
27.2
|
The seat of the arbitration shall be London, England. The language of the arbitration shall be English, except that any party to the arbitration may submit testimony or documentary evidence in Bulgarian, whereupon it shall also furnish a certified translation or interpretation of any such evidence into English.
|
27.3
|
If any dispute arising out of or relating to this Agreement (hereinafter referred to as a "
Related Dispute
") raises issues which are substantially the same as or connected with issues raised in another dispute which has already been referred to arbitration under this Agreement or another Transaction Document (an "
Existing Dispute
"), the tribunal appointed or to be appointed in respect of any such Existing Dispute shall also be appointed as the tribunal in respect of any such Related Dispute. Where, pursuant to the foregoing provisions, the same tribunal has been appointed in relation to two or more disputes, the tribunal may, with the agreement of all the parties concerned or upon the application of one of the Parties, being a Party to each of the disputes, order that the whole or part of the matters at issue shall be heard together upon such terms or conditions as the tribunal thinks fit. The tribunal shall have power to make such directions and any interim or partial award as it considers just and desirable.
|
27.4
|
The Parties agree that money damages would not be a sufficient remedy for any breach of this Agreement by Top Tone Holdings and that in addition to all other remedies, CME ME shall be entitled to specific performance and to injunctive or other equitable relief as remedies for any such breach or threatened breach of this Agreement by Top Tone Holdings 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.
|
(A)
|
The parties entered into the Investment Agreement for the purpose of defining their respective rights and obligations with regards to their shares, participation rights or other equity ownership interest CME Bulgaria B.V., a company organized under the laws of the Netherlands, and having its seat at Dam 5b, JS 1012 Amsterdam, the Netherlands ("
CME Bulgaria
").
|
(B)
|
Pursuant to the provisions of Clause 2 of the Investment Agreement, on [●] Top Tone Holdings transferred its shareholding in CME Bulgaria to [●], an Affiliate (as such term is defined in the Investment Agreement) of Top Tone Holdings.
|
(C)
|
This Deed is entered into in compliance with the terms of Clause 2.3 of the Investment Agreement.
|
1.
|
[●], a company organized under the laws of [●] with registered number [●] and having its registered office at [●] ("
Top Tone Affiliate
") hereby confirms that it is an Affiliate that is Controlled by and 100% beneficially owned by Guergov and has been supplied with a copy of the Investment Agreement and covenants to observe, perform and be bound by all the terms of the Investment Agreement applicable to Top Tone Holdings to the intent and effect that Top Tone Affiliate shall be deemed with effect from the date of this Deed to be a party to the Investment Agreement in place and to the exclusion of Top Tone Holdings.
|
2.
|
For the avoidance of doubt, pursuant to Clause 2.3 of the Investment Agreement, the Top Tone Affiliate agrees that it shall not sell, transfer or otherwise dispose of, grant any option over or create or permit any Encumbrance on or over all or any part of its Ownership Interest in respect of CME Bulgaria to any Affiliate that is not an Affiliate of Top Tone Holdings which is Controlled and 100% beneficially owned by Guergov.
|
3.
|
Top Tone Affiliate hereby agrees that it shall immediately transfer its Ownership Interest in CME Bulgaria to Top Tone Holdings (or, if no longer Controlled and 100% beneficially owned by Guergov, to an entity Controlled and 100% beneficially owned by Guergov) upon the Top Tone Affiliate ceasing to be Controlled and 100% beneficially owned by Guergov.
|
4.
|
This Deed is made for the benefit of the parties to the Investment Agreement and any other person or persons who after the date of the Investment Agreement (and whether or not prior to or after the date of this Deed) adhere to the Investment Agreement.
|
5.
|
Save where the context otherwise requires, words and expressions defined in the Investment Agreement have the same meanings when used herein.
|
6.
|
The provisions of Clauses 13 and 16 to 27 (inclusive) shall apply
mutatis mutandis
to this Deed as if set out herein.
|
7.
|
For the purposes of Clause 15 of the Investment Agreement, the name and address of Top Tone Affiliate are as set out in this Deed.
|
8.
|
This Deed may be executed in counterparts, each of which will be an original, but all of which will constitute but one and the same instrument.
|
(1)
|
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
");
|
(2)
|
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 3
rd
Floor, Omar Hodge Building, Wickhams Cay I, P.O. Box 362, Road Town, Tortola, British Virgin Islands ("
Top Tone Holdings
"); and
|
(3)
|
KRASSIMIR GUERGOV
, a citizen of the Republic of Bulgaria, residing at 19, Oborishte Str., 1504 Sofia, Bulgaria, holder of identity card no. 184961630 issued by the Republic of Bulgaria (the "
Consultant
"),
|
(A)
|
On 1 August 2008 CME ME, Top Tone Holdings and Equip Limited entered into a shareholders’ agreement to regulate the business and affairs of Top Tone Media S.A. and Zopal S.A. and its subsidiaries (the "
Pro.BG Group
") and the rights among themselves as shareholders in Top Tone Media S.A. and Zopal S.A. (the "
Shareholders' Agreement
").
|
(B)
|
On 1 August 2008 CME ME and the Consultant executed a consultancy deed under which the Consultant provided certain consultancy services to CME ME and the Pro.BG Group (the "
Consultancy Deed
").
|
(C)
|
In connection with the Amended and Restated Sale and Purchase Agreement entered into by and among the Parties as of 19 April 2010 (the "
Sale and Purchase Agreement
"), the Parties have agreed to terminate the Shareholders’ Agreement and the Consultancy Deed and waive any claims arising under such agreements from and after the date hereof.
|
1.
|
TERMINATION OF THE SHAREHOLDER'S AGREEMENT AND RELEASE
|
1.1
|
Each of CME ME and Top Tone Holdings hereby agrees with each other that:
|
|
1.1.1
|
subject to Clause 1.1.3 below, the Shareholders' Agreement (including, without limitation, all provisions thereof which by the terms thereof are stated or intended to survive termination and all rights, authorities and liabilities arising under the Shareholders' Agreement) shall be terminated for all purposes effective upon and from the date hereof (the "
Effective Date
") and shall be of no further force and effect effective upon and from the Effective Date;
|
|
1.1.2
|
any requirement of notice of termination or delivery of any other document or the doing of any other action or thing by any person required in connection with such termination of the Shareholders' Agreement is hereby waived; and
|
|
1.1.3
|
the confidentiality obligations set out in Clause 21 of the Shareholders' Agreement shall continue to bind CME ME and Top Tone Holdings for a period of two years after the date of this Deed.
|
1.2
|
Save in the case of fraud or any other criminal acts under applicable law, effective upon and from the Effective Date, each of CME ME and Top Tone Holdings irrevocably and unconditionally:
|
|
1.2.1
|
releases, waives and discharges each other from any and all past, present and future claims, defences, liabilities, demands, indebtedness, losses, damages, deficiencies, obligations or responsibilities, liquidated or unliquidated, secured or unsecured, known or unknown, absolute, contingent or otherwise, whether or not accrued ("
Liabilities
") arising under, by reference to or in connection with the Shareholders' Agreement; and
|
|
1.2.2
|
undertakes to and covenants with each other not to make any claims or demands in respect of such Liabilities arising under, by reference to or in connection with the Shareholders' Agreement or otherwise.
|
2.
|
TERMINATION OF THE CONSULTANCY DEED AND RELEASE
|
2.1
|
Each of CME ME and the Consultant hereby agrees with each other that:
|
|
2.1.1
|
subject to Clause 2.1.3 below, the Consultancy Deed (including, without limitation, all provisions thereof which by the terms thereof are stated or intended to survive termination and all rights, authorities and liabilities arising under the Consultancy Deed) shall be terminated for all purposes effective upon and from the Effective Date and shall be of no further force and effect effective upon and from the Effective Date;
|
|
2.1.2
|
any requirement of notice of termination or delivery of any other document or the doing of any other action or thing by any person required in connection with such termination of the Consultancy Deed is hereby waived; and
|
|
2.1.3
|
the confidentiality obligations set out in Clause 5 of the Consultancy Deed shall continue to bind CME ME and the Consultant for a period of two years after the date of this Deed.
|
2.2
|
Save in the case of fraud or any other criminal acts under applicable law, effective upon and from the Effective Date, each of CME ME and the Consultant irrevocably and unconditionally:
|
|
2.2.1
|
releases, waives and discharges each other from any and all past, present and future Liabilities arising under, by reference to or in connection with the Consultancy Deed; and
|
|
2.2.2
|
undertakes to and covenants with each other not to make any claims or demands in respect of such Liabilities arising under, by reference to or in connection with the Consultancy Deed or otherwise.
|
3.
|
FURTHER UNDERTAKINGS
|
3.1
|
CME ME hereby agrees to pay to Top Tone Holdings on the Effective Date the sum of US$17,980,000 in full and final settlement of all of its obligations arising under the Shareholders' Agreement, the Consultancy Deed and this Deed (the "
Termination
Payment
"). Top Tone Holdings and the Consultant hereby acknowledge that the Termination Payment represents good and valuable consideration for the purposes of this Deed.
|
3.2
|
Each of the Parties to this Deed agrees to perform (or procure the performance of) all further acts and things, and execute and deliver (or procure the execution and delivery of) such further documents, as may be required by law or as may be necessary or reasonably desirable to implement and/or give effect to this Deed.
|
3.3
|
Each of the Parties hereby represents and warrants to each other Party that it has not assigned or otherwise transferred any of the Liabilities in respect of the Shareholders Agreement or the Consultancy Deed to any third party.
|
4.
|
COUNTERPARTS
|
5.
|
NO RIGHTS UNDER CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
|
6.
|
GOVERNING LAW AND DISPUTE RESOLUTION
|
6.1
|
This Deed is governed by and shall be construed in accordance with English law.
|
|
6.2
|
Any disputes, claims or controversy arising out of or related to this Deed, including any question as to its formation, validity or interpretation, 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 6.2, except to the extent modified by this Clause 6.2. The tribunal shall consist of three arbitrators. CME ME shall nominate one arbitrator, Top Tone Holdings and the Consultant shall jointly nominate one arbitrator and the third arbitrator shall be appointed by the two arbitrators nominated by the Parties. Any Party shall have the right to initiate the proceedings.
|
6.3
|
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.
|
6.4
|
If any dispute arising out of or relating to this Deed (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 Deed (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.
|
6.5
|
The Parties agree that money damages would not be a sufficient remedy for any breach of this Deed by Top Tone Holdings or the Consultant and that in addition to all other remedies, CME shall be entitled to specific performance and to injunctive or other equitable relief as remedies for any such breach or threatened breach of this Deed by Top Tone Holdings or the Consultant 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.
|
7.
|
General
|
EXECUTED
and
DELIVERED
as a
DEED
by
|
|
) | |
KRASSIMIR GUERGOV
|
|
) |
/s/ Krassimir Guergov
|
in the presence of:
|
|
) | |
/s/ Elitsa Menkova
|
|||
Signature of Witness
|
|||
Name of Witness: Elitsa Menkova
|
|||
Occupation of Witness: Personal Assistant
|
|||
Address of Witness:
|
DATED
|
1 May 2010
|
CONTRACT OF EMPLOYMENT
|
Name and Address of Employer:
|
CME Media Services Limited, 5 Fleet Place, London EC4M 7RD, United Kingdom (the “
Company
”)
|
|
Name and Address of Employee:
|
Petr
Dvořák
[address redacted]
|
|
Date this Contract takes effect:
|
1 May 2010
|
1
|
COMMENCEMENT OF AND CONDITIONS TO EMPLOYMENT
|
1.1
|
Your employment with the Company shall commence on 1 May 2010 or such other date as agreed between you and the President and Chief Executive Officer of the CME group, subject to compliance with clause 1.2 below (the “
Commencement Date
”) and shall expire on June 30, 2013, unless earlier terminated in accordance with the provisions of clause 9 hereof. No previous period of employment shall count as continuous employment.
|
1.2
|
You shall establish to the Company’s satisfaction (through production of original documents reasonably requested by us) that you are entitled to live and work in the Czech Republic without any additional approvals. You will notify the Company immediately if you cease to be so entitled at any time during your employment with the Company.
|
1.3
|
You represent and warrant that you are not bound by or subject to any contract, court order, agreement, arrangement or undertaking which in any way restricts or prohibits you from entering into this Contract or performing your duties under it.
|
2
|
JOB TITLE AND DUTIES
|
2.1
|
Your job title is Senior Vice President; Head of Broadcasting Division reporting to the President and Chief Executive Officer of the CME group.
|
2.2
|
Your main duties are:
|
|
2.2.1
|
managing the broadcast operations of the CME group;
|
|
2.2.2
|
acting as statutory director of such entities of the CME group as may be determined from time to time;
|
|
2.2.3
|
undertaking such additional tasks in respect of the business of the CME group as the President and Chief Executive Officer of the CME group directs from time to time; and
|
|
2.2.4
|
travel to such countries as directed by the President and Chief Executive Officer of the CME group to undertake tasks specified by the President and Chief Executive Officer of the CME group. In addition to your main duties you will be required to carry out such other duties consistent with your position as the Company may from time to time reasonably require.
|
2.3
|
You shall use your best endeavours to promote and protect the interests of the CME group and shall not do anything that is harmful to those interests.
|
2.4
|
You shall devote the whole of your working time (unless prevented by ill-health or accident or otherwise directed by the Company) to the duties of this Contract and you shall not be directly or indirectly interested or concerned in any manner in any other business (other than holding as a bona-fide personal investment equity in any company whose shares are listed on any recognised exchange or is not otherwise a business in the Territory which is the same as that of the CME group or a business competitive with any CME Business or Ancillary Business, as such terms are defined in clause 17) except with the Company’s prior written consent. If such consent is given, you must provide the Company with the number of hours worked for any other employer each month. The above restriction does not apply to the performance by you, at the request of the Company, of any office in any company of the CME group.
|
3
|
PLACE OF WORK
|
3.1
|
You will be based in the branch office of the Company in the Czech Republic with address at
Kříženeckého nám. 1078/5, 152 00 Praha 5 – Barrandov, Czech Republic
or at such other location as the Company may from time to time reasonably require. However, it is agreed that your position will require that you spend extensive time travelling for the proper performance of your duties.
|
3.2
|
The duties of this appointment shall relate primarily to the countries in which the CME group operates. You may also be required to travel to other destinations from time to time as reasonably required by the Company for the proper performance of your duties.
|
4
|
REMUNERATION
|
4.1
|
From the Commencement Date, your basic gross salary is EUR 580,000 per year, payable monthly in arrears by credit transfer into your bank account after all necessary deductions for relevant taxes and social security payments. With effect from January 1, 2012, provided you are employed by the Company pursuant to this Contract on such date, your basic gross salary shall be increased to EUR 730,000 per year (the “
2012 Increase
”). Other than the 2012 Increase, any increase is entirely at the Company’s discretion.
|
4.2
|
Your salary shall be payable in Czech koruna (CZK) based on the EUR-CZK exchange rate in effect on April 30, 2010 in respect of the period through December 31, 2010 and on each January 1 in respect of each year thereafter. In the event the amount of salary you would have been entitled to receive in Czech koruna in any calendar year, following conversion of such amount using the average CZK-EUR exchange rate for such calendar year, is greater than the amount you did receive, the difference will be added to your salary payable in the first month of the following calendar year. In the event the amount of salary you would have been entitled to receive in Czech koruna in any calendar year, following conversion of such amount using the average CZK-EUR exchange rate for such calendar year, is less than the amount you did receive, the difference will be withheld from your basic salary payable in the first month of the following calendar year.
|
4.3
|
You shall also be entitled to a one-off payment in the amount of CZK 3,191,899. Such amount shall be paid at the same time and by the same method as your first salary payment is paid and shall be subject to all necessary deductions for relevant taxes and social security payments.
|
4.4
|
You shall be entitled to participate in the CME Management Compensation Policy in effect from time to time (the “
Policy
”). The amount, if any, of any bonus awarded pursuant to the Policy shall be determined by the President and Chief Executive Officer of the CME group, pursuant to the rules of the Policy. Any bonus awarded will be based on a figure representing 75% of your gross annual salary.
|
5
|
OTHER BENEFITS
|
5.1
|
You are entitled to membership of such insurance schemes (each referred to below as an “
insurance scheme
”) provided by the Company or, as the case may be, by any company of the CME group, from time to time, including a medical and dental expenses insurance scheme providing such cover for you and your spouse/partner and any children under the age of eighteen (18) as the Company may from time to time notify to you. The Company will use reasonable endeavours to subscribe for life insurance for you if a life insurance scheme on commercially reasonable terms can be identified.
|
5.2
|
Benefits shall be subject to the terms of any applicable insurance policy and are conditional upon your complying with and satisfying any applicable requirements of the insurers or other benefits provider. Copies of these rules and policies and particulars of the requirements shall be provided to you on request. The Company shall not have any liability to pay any benefit to you under any insurance scheme unless it receives payment of the benefit from the insurer under the scheme.
|
5.3
|
Any insurance scheme which is provided for you is also subject to the Company’s right to alter the cover provided or any term of the scheme or to cease to provide (without replacement) the scheme at any time if in the reasonable opinion of the Company your state of health is or becomes such that the Company is unable to insure the benefits under the scheme at the normal premiums applicable.
|
5.4
|
The provision of any insurance scheme or any benefits hereunder does not in any way prevent the Company from lawfully terminating this Contract in accordance with the provisions in clause 9 even if to do so would deprive you of membership of or cover under any such scheme or benefit.
|
6
|
EXPENSES
|
7
|
HOURS OF WORK
|
8
|
HOLIDAYS
|
8.1
|
You are entitled to 25 days’ holiday per annum (in addition to public holidays).
|
8.2
|
Your entitlement to holiday accrues pro rata on an annual basis as calculated from 1 April until 31 March (inclusive) each year (the “
Holiday Year
”).
|
8.3
|
On termination, you will be paid only for accrued vacation in the relevant Holiday Year and not for vacation carried over from the previous year.
|
8.4
|
The Company may also refuse to allow you to take holiday in circumstances where it would be inconvenient to the business of the Company. If, in exceptional circumstances, the Company is forced to cancel holiday previously booked by you, all reasonable and properly documented accommodation, reservation and travel expenses incurred by you in connection therewith up to the date of cancellation that are not otherwise refundable will be reimbursed by the Company.
|
9
|
TERMINATION
|
9.1
|
The Company may terminate this Contract on giving you 12 months’ notice in writing to expire at any time. You are required to give the Company the same period of notice in writing, to expire at any time. The date of delivery of such notice by either party shall be the
“Notice Date
”.
|
9.2
|
The Company may at any time and in its absolute discretion (whether or not any notice of termination has been given under clause 9.1 above) terminate this Contract with immediate effect and make a payment in lieu of notice. This payment will be comprised solely of your basic salary (at the rate payable when this option is exercised) in respect of the portion of the notice period remaining at the time the Company exercises this option and any earned but unpaid bonus awarded in accordance with clause 4.4 hereof. All payments made pursuant to this clause 9.2 shall be subject to deductions for income tax and social security as appropriate. You will not, under any circumstances, have any right to payment in lieu unless the Company has exercised its option to pay in lieu of notice.
|
9.3
|
At the election of the Company, the payment in lieu of notice will be made at the times the Company would have made payments to you had notice not been given or on expiry of the remainder of the period of notice.
|
9.4
|
Your employment may be terminated by the Company for Cause at any time without notice or payment in lieu of notice. For purposes of this Contract, “
Cause
” shall mean (i) the commission by you of any act or omission that would constitute a felony or an indictable offence under United States federal, state or equivalent foreign law; (ii) your gross negligence, recklessness, dishonesty, fraud, disclosure of trade secrets or confidential information, willful malfeasance or willful misconduct in the performance of services to the Company; (iii) willful misrepresentation by you which is injurious to the Company; (iv) your willful failure without reasonable justification to comply with reasonable directions of the President and Chief Executive Officer of the CME group; or (v) a willful and material breach of your duties or obligations under this Contract.
|
9.5
|
For purposes hereof, the date on which the Company exercises its rights to terminate pursuant to clause 9.2 or clause 9.4 shall be the “
Termination Date
”.
|
9.6
|
Upon the termination by whatever means of this Contract you shall immediately return to the Company all documents, computer media and hardware, credit cards, mobile phones and communication devices, keys and all other property belonging to or relating to the business of the Company which is in your possession or under your power or control and you must not retain copies of any of the above.
|
10
|
SUSPENSION
|
10.1
|
The Company may suspend you from your duties on full pay to allow the Company to investigate any bona-fide complaint made against you in relation to your employment with the Company.
|
10.2
|
Provided you continue to enjoy your full contractual benefits and receive your pay in accordance with this Contract, the Company may in its absolute discretion do all or any of the following during the notice period or any part of the notice period, after you or the Company have given notice of termination to the other, without breaching this Contract or incurring any liability or giving rise to any claim against it:
|
|
10.2.1
|
exclude you from the premises of any company of the CME group;
|
|
10.2.2
|
require you to carry out only specified duties (consistent with your status, role and experience) or to carry out no duties;
|
|
10.2.3
|
announce to any of its employees, suppliers, customers and business partners that you have been given notice of termination or have resigned (as the case may be);
|
|
10.2.4
|
prohibit you from communicating in any way with any or all of the suppliers, customers, business partners, employees, agents or representatives of the CME group until your employment has terminated except to the extent that you are authorised by the General Counsel of the CME group in writing; and
|
|
10.2.5
|
require you to comply with any other reasonable conditions imposed by the Company.
|
10.3
|
You will continue to be bound by all obligations owed to the Company under this Contract until termination of this Contract in accordance with clause 9 or such later date as provided herein.
|
11
|
CONFIDENTIAL INFORMATION
|
11.1
|
You agree during and after the termination of your employment not to use or disclose to any person (and shall use your best endeavours to prevent the use, publication or disclosure of) any confidential information:
|
|
11.1.1
|
concerning the business of the CME group and which comes to your knowledge during the course of or in connection with your employment or your holding office with the CME group; or
|
|
11.1.2
|
concerning the business of any client or person having dealings with the CME group and which is obtained directly or indirectly in circumstances where the CME group is subject to a duty of confidentiality.
|
11.2
|
For the purposes of clause 11.1.1 above, information of a confidential or secret nature includes but is not limited to information disclosed to you or known, learned, created or observed by you as a consequence of or through your employment with the Company, not generally known in the relevant trade or industry about the Company or any member of the CME group’s business activities, services and processes, including but not limited to information concerning advertising, sales promotion, publicity, sales data, research, programming and plans for programming, finances, accounting, methods, processes, business plans (including prospective or pending licence applications or investments in licence holders or applicants), client or supplier lists and records, potential client or supplier lists, and client or supplier billing.
|
11.3
|
This clause shall not apply to information which is:
|
|
11.3.1
|
used or disclosed in the proper performance of your duties or with the consent of the Company;
|
|
11.3.2
|
ordered to be disclosed by a court of competent jurisdiction or otherwise required to be disclosed by law or pursuant to the rules of any applicable stock exchange; or
|
|
11.3.3
|
in or comes into the public domain (otherwise than due to a default by you).
|
12
|
INTELLECTUAL PROPERTY
|
12.1
|
You shall assign with full title your entire interest in any Intellectual Property Right (as defined below) to the Company to hold as absolute owner.
|
12.2
|
You shall communicate to the Company full particulars of any Intellectual Property Right in any work or thing created by you and you shall not use, license, assign, purport to license or assign or disclose to any person or exploit any Intellectual Property Right without the prior written consent of the Company.
|
12.3
|
In addition to and without derogation of the covenants imposed by the Law of Property (Miscellaneous Provisions) Act 1994, you shall prepare and execute such instruments and do such other acts and things as may be necessary or desirable (at the request and expense of the Company) to enable the Company (or its nominee) to obtain protection of any Intellectual Property Right vested in the Company in such parts of the world as may be specified by the Company (or its nominee) and to enable the Company to exploit any Intellectual Property Right vested in it to its best advantage.
|
12.4
|
You hereby irrevocably appoint the Company to be your attorney in your name and on your behalf to sign, execute or do any instrument or thing and generally to use your name for the purpose of giving to the Company (or its nominee) the full benefit of the provisions of this clause and a certificate in writing signed by any director or the secretary of the Company that any instrument or act relating to such Intellectual Property Right falls within the authority conferred by this clause shall be conclusive evidence that such is the case in favour of any third party.
|
12.5
|
You hereby waive all of your moral rights (as defined in the Copyright, Designs and Patents Act 1988) in respect of any act by the Company and any act of a third party done with the Company’s authority in relation to any Intellectual Property Right which is or becomes the property of the Company.
|
12.6
|
“
Intellectual Property Right
” means a copyright, know-how, trade secret and any other intellectual property right of any nature whatsoever throughout the world (whether registered or unregistered and including all applications and rights to apply for the same) which:
|
|
12.6.1
|
relates to the business or any product or service of the Company; and
|
|
12.6.2
|
is invented, developed, created or acquired by you (whether alone or jointly with any other person) during the period of your employment with the Company;
|
13
|
COLLECTIVE AGREEMENTS/WORKFORCE AGREEMENTS
|
14
|
DATA PROTECTION
|
14.1
|
You acknowledge that the Company will hold personal data relating to you. Such data will include your employment application, address, references, bank details, performance appraisals, work, holiday and sickness records, next of kin, salary reviews, remuneration details and other records (which may, where necessary, include sensitive data relating to your health and data held for equal opportunities purposes). The Company will hold such personal data for personnel administration and management purposes and to comply with its obligations regarding the retention of your records. Your right of access to such data is as prescribed by law.
|
14.2
|
By signing this Contract, you agree that the Company may process personal data relating to you for personnel administration and management purposes and may, when necessary for those purposes, make such data available to its advisors, to third parties providing products and/or services to the Company and as required by law.
|
15
|
CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
|
16
|
MONITORING OF COMPUTER SYSTEMS
|
16.1
|
The Company will monitor messages sent and received via the email and voicemail system to ensure that employees are complying with the CME group’s Information Technology policy in effect from time to time.
|
16.2
|
The Company reserves the right to retrieve the contents of messages for the purpose of monitoring whether the use of the email system is in accordance with the Company’s best practice, whether use of the computer system is legitimate, to find lost messages or to retrieve messages lost due to computer failure, to assist in the investigations of wrongful acts or to comply with any legal obligation.
|
16.3
|
You should be aware that no email or voicemail sent or received through the Company’s system is private. The Company reserves and intends to exercise its right to review, audit, intercept, access and disclose on a random basis all messages created from it or sent over its computer system for any purpose. The contents of email or voicemail so obtained by the Company in the proper exercise of these powers may be disclosed without your permission. You should be aware that the emails or voicemails or any document created on the Company’s computer system, however confidential or damaging, may have to be disclosed in court or other proceedings. An email which has been trashed or deleted can still be retrieved.
|
16.4
|
The Company further reserves and intends to exercise its right to monitor all use of the internet through its information technology systems, to the extent authorised by law. By your signature to this Contract, you consent to any such monitoring.
|
17
|
POST-EMPLOYMENT RESTRICTIONS
|
17.1
|
For the duration of your employment with the Company and for the Restricted Period, you shall not:
|
|
17.1.1
|
either on your own account or on behalf of any other person, firm or company, directly or indirectly, carry on or be engaged, concerned or interested in any business the same as that of the CME group or which is competitive with any CME Business (as hereinafter defined) and with which you were actively involved at any time in the twelve months preceding the termination of your employment within the territories in which the CME group operates or is considering to operate (the “
Territory
”);
|
|
17.1.2
|
seek to do business and/or do business, perform any services or supply any goods or seek to do so, in competition with any company of the CME group with any person, firm or company who at any time during the twelve months preceding the termination of your employment was a client, customer or supplier of any company of the CME group and with whom during that period you or another person on your behalf had contact or dealings in the ordinary course of business or were aware of in the course of your employment;
|
|
17.1.3
|
interfere or seek to interfere or take such steps as may or are calculated to interfere with the continuance of supplies (whether services or goods) or any rights of purchase, sale, import, distribution or agency enjoyed by or supplied to any company of the CME group, or the terms on which they are so supplied or enjoyed, from any person, firm or company supplying or offering rights to any company of the CME group at any time during the period of twelve months prior to such termination;
|
|
17.1.4
|
solicit, entice or procure or endeavour to solicit, entice or procure any employee of the CME group to breach his contract of employment or any person to breach his contract for services with the Company or any Associated Company;
|
|
17.1.5
|
in relation to any CME Business in the Territory, solicit, employ, engage or offer or cause to be employed or engaged, whether directly or indirectly, any employee, director or consultant of any company of the CME group engaged or employed at the date of termination of your employment or at any time during the twelve months preceding such termination who has knowledge of confidential aspects of the business of the CME group, and with whom, at any time during the period of twelve months prior to such termination, you had material dealings; and/or
|
|
17.1.6
|
you shall not at any time falsely represent yourself as being connected with or interested in the Company or any Associated Company or in the business of the CME group.
|
17.2
|
For the duration of your employment with the Company, you shall not, either on your own account or through any other person, firm or company, directly or indirectly, carry on, accept or be engaged, concerned or interested in, any opportunity (a “
Corporate Opportunity
”) in Central and Eastern Europe and any other country that Central European Media Enterprises Ltd. (“
CME Ltd.
”) has identified from time to time (i) which is in the line of business of any company of the CME group from time to time (including, without limitation, securing broadcasting licenses, operating television stations, broadcasting on any distribution platform, selling advertising on any platform, developing and operating internet sites, providing production services, producing programming and other content for broadcast on any platform or for exhibition, distributing or licensing content for exhibition, home entertainment or otherwise, providing other programming services, owning and operating cinemas) (each a “
CME Business
”) or in any Ancillary Business (i) which arises or becomes known to you as a result of your employment by the Company, or (ii) in which it can reasonably be expected that the CME group has an interest or expectancy (including any Ancillary Business) unless (a) you have presented the Corporate Opportunity to the Board of Directors of CME Ltd. in reasonable detail and (b) the Board of Directors has decide not to pursue such Corporate Opportunity after such presentation by you.
|
17.3
|
Each of the restrictions in this clause shall be enforceable independently of each other and its validity shall not be affected if any of the others is invalid. If any of the restrictions is void but would be valid if some part of the restriction were deleted, the restriction in question shall apply with such modification as may be necessary to make it valid.
|
17.4
|
The restrictions set forth in this clause 17 shall not apply if the Company is in breach of this Contract.
|
17.5
|
For the purposes of this Contract, “
Associated Company
” shall mean a subsidiary (as defined by the Companies Act 1985 as amended) and any other company which is for the time being a holding company (as defined by the Companies Act 1985 as amended) of the Company or another subsidiary of such holding company.
|
18
|
INDEMNITY
|
18.1
|
The Company will indemnify you and pay on your behalf all Expenses (as defined below) incurred by you in any Proceeding (as defined below), whether the Proceeding which gave rise to the right of indemnification pursuant to this Contract occurred prior to or after the date of this Contract provided that you shall promptly notify the Company of such Proceeding and the Company shall be entitled to participate in such Proceeding and, to the extent that it wishes, jointly with you, assume the defence thereof with counsel of its choice. This indemnification shall not apply if it is determined by a court of competent jurisdiction in a Proceeding that any losses, claims, damages or liabilities arose primarily out of your gross negligence, wilful misconduct or bad faith.
|
18.2
|
The term “
Proceeding
” shall include any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation, whether brought in the name of the Company or otherwise and whether of a civil, criminal, administrative or investigative nature, including, but not limited to, actions, suits or proceedings brought under or predicated upon any securities laws, in which you may be or may have been involved as a party or otherwise, and any threatened, pending or completed action, suit or proceeding or any inquiry or investigation that you in good faith believe might lead to the institution of any such action, suit or proceeding or any such inquiry or investigation, in each case by reason of the fact that you are or were serving at the request of the Company as a director, officer or manager of any other Associated Company, whether or not you are serving in such capacity at the time any liability or expense is incurred for which indemnification or reimbursement can be provided under this Contract.
|
18.3
|
The term “
Expenses
” shall include, without limitation thereto, expenses (including, without limitation, attorneys fees and expenses) of investigations, judicial or administrative proceedings or appeals, damages, judgments, fines, penalties or amounts paid in settlement by or on behalf of you and any expenses of establishing a right to indemnification under this Contract.
|
18.4
|
The Expenses incurred by you in any Proceeding shall be paid by the Company as incurred and in advance of the final disposition of the Proceeding at your written request. You hereby agree and undertake to repay such amounts if it shall ultimately be decided in a Proceeding that you are not entitled to be indemnified by the Company pursuant to this Contract or otherwise.
|
18.5
|
The indemnification and advancement of Expenses provided by this Contract shall not be deemed exclusive of any other rights to which you may be entitled under the Company’s Articles of Association or the constituent documents of any other Associated Company for which you are serving as a director, officer or manager at the request of the Company, the laws under which the Company was formed, or otherwise, and may be exercised in any order you elect and prior to, concurrently with or following the exercise of any other such rights to which you may be entitled, including pursuant to directors’ and officers’ insurance maintained by the Company, both as to action in official capacity and as to action in another capacity while holding such office, and the exercise of such rights shall not be deemed a waiver of any of the provisions of this Contract. To the extent that a change in law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded under this Contract, it is the intent of the parties hereto that you shall enjoy by this Contract the greater benefit so afforded by such change. The provisions of this clause shall survive the expiration or termination, for any reason, of this Contract and shall be separately enforceable.
|
19
|
GENERAL
|
19.1
|
You hereby authorise the Company to deduct from any salary payable to you any sums owing by you to the Company.
|
19.2
|
As from the effective date of this Contract, all other agreements or arrangements between you and the Company shall cease to have effect.
|
19.3
|
This Contract shall be governed by and construed in accordance with English law. The parties agree to submit to the non-exclusive jurisdiction of the English courts in respect of any dispute hereunder.
|
Signed as a Deed by CME Media Services Limited acting by:
|
|
Daniel Penn, Director
|
/s/ Daniel Penn
|
Dave Sturgeon, Director
|
/s/ Dave Sturgeon
|
Signed as a Deed by Petr
Dvořák
|
/s/ Petr
Dvořák
|
in the presence of:
|
|
Witness signature:
|
/s/ Karolina Piknerova
|
Name:
|
Karolina Piknerova
|
Address:
|
|
|
|
Occupation:
|
Personal Assistant
|
/s/ Adrian Sarbu
|
|
Adrian Sarbu
|
|
President and Chief Executive Officer
|
|
May 5, 2010
|
/s/ David Sach
|
|
David Sach
|
|
Chief Financial Officer
|
|
May 5, 2010
|
1
|
the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
|
2
|
the information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company as of the dates and for the periods explained in the Report.
|
/s/ Adrian Sarbu
|
/s/ David Sach
|
|
Adrian Sarbu
|
David Sach
|
|
President and Chief Executive Officer
|
Chief Financial Officer
|
|
(Principal Executive Officer)
|
(Principal Financial Officer)
|
|
May 5, 2010
|
May 5, 2010
|