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EXECUTION COPY CONFIDENTIAL CME MEDIA ENTERPRISES B.V. CENTRAL EUROPEAN MEDIA ENTERPRISES LTD. PPF (CYPRUS) LTD. CME MEDIA INVESTMENTS S.R.O.

Confidentiality Agreement

EXECUTION COPY CONFIDENTIAL   CME MEDIA ENTERPRISES B.V.     CENTRAL EUROPEAN MEDIA ENTERPRISES LTD.     PPF (CYPRUS) LTD.      CME MEDIA INVESTMENTS S.R.O. You are currently viewing:
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CENTRAL EUROPEAN MEDIA ENTERPRISES LTD | PPF (CYPRUS) LTD | PGT CORPORATION S.R.O

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Title: EXECUTION COPY CONFIDENTIAL CME MEDIA ENTERPRISES B.V. CENTRAL EUROPEAN MEDIA ENTERPRISES LTD. PPF (CYPRUS) LTD. CME MEDIA INVESTMENTS S.R.O.
Date: 5/10/2005
Industry: BRDCST     Sector: SERVIC

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EXECUTION COPY

CONFIDENTIAL

 

 

CME MEDIA ENTERPRISES B.V.

 

 

 

 

CENTRAL EUROPEAN MEDIA ENTERPRISES LTD.

 

 

 

 

PPF (CYPRUS) LTD.

 

 

 

 

 

CME MEDIA INVESTMENTS S.R.O.

 

 

 

and

 

 

 

PGT CORPORATION S.R.O.

 

 

_________________________________________________

 

TV NOVA GROUP AGREEMENT

 

_________________________________________________

 

 

2 May 2005

 

 

 

DEWEY BALLANTINE

London

 


 

CONTENTS

 

1

Interpretation

2

 

 

 

2

Warranties

7

 

 

 

3

The Business

8

 

 

 

4

Corporate Governance of the TV Nova Business

8

 

 

 

5

CME Ltd

12

 

 

 

6

Minority Rights

13

 

 

 

7

Restructuring of the TV Nova Group

14

 

 

 

8

Business Plan for the TV Nova Group

16

 

 

 

9

Pre-Emption Rights

16

 

 

 

10

Transfer of Ownership Interests

17

 

 

 

11

Tag Along and Drag Along Rights

20

 

 

 

12

Put and Call

21

 

 

 

13

Termination and Consequences of Termination

25

 

 

 

14

Status of Agreement

26

 

 

 

15

Performance by the CME Parties

27

 

 

 

16

Confidentiality

27

 

 

 

17

Entire Agreement

28

 

 

 

18

Assignments

28

 

 

 

19

Amendments

28

 

 

 

20

Variation and Waiver

29

 


 

21

Costs

29

 

 

 

22

No Partnership

29

 

 

 

23

Third Party Rights

29

 

 

 

24

Notices

29

 

 

 

25

Severance

30

 

 

 

26

Further Assurance

30

 

 

 

27

Counterparts

30

 

 

 

28

Governing Law and Jurisdiction

30

 

 

 

29

Dispute Resolution

31

 

 

 

30

Non-Business Days

31

 

 

 

31

Damages Inadequate

31

 

 

 

SCHEDULE 1 TV Nova Executive Committee

33

 

 

 

SCHEDULE 2 Procedural Rules for Executive Directors of Newco/Oldco

35

 

-ii-


 

THIS TV NOVA GROUP AGREEMENT (this "Agreement") is made by way of a deed on 2 May 2005

 

BETWEEN:

 

(1)

CME MEDIA ENTERPRISES B.V., a company organized under the laws of the Netherlands, and having its registered office at Birkstraat 89, 3768 HD Soest, the Netherlands ("CME ME");

 

(2)

CENTRAL EUROPEAN MEDIA ENTERPRISES LTD., a company organized under the laws of Bermuda, and having its registered office at Clarendon House, Church Street, Hamilton, HM CX Bermuda ("CME Ltd");

 

(3)

PPF (CYPRUS) LTD., a company organized under the laws of the Republic of Cyprus with registered number HE 92433, and having its registered office at Arch. Makariou III, 2-4, Capital Center, 9th Floor, PC 1505, Nicosia, Cyprus ("PPF");

 

(4)

CME MEDIA INVESTMENTS S.R.O., a limited liability company organized and existing under the laws of the Czech Republic, and registered in the Commercial Register maintained by the Municipal Court in Prague, section C, insert 106550, identification number 27235173, with its seat at Prague 5, Krizeneckeho nam. 1078/5, 152 00 Czech Republic ("Newco"); and

 

(5)

PGT CORPORATION S.R.O. (pending the registration of the change of the corporate name to CME Media Services s.r.o.), a limited liability company organized and existing under the laws of the Czech Republic, and registered in the Commercial Register maintained by the Municipal Court in Prague, section C, insert 95420, identification number 27088944, with its seat at Prague 1, Klimentska 46, 110 02 Czech Republic, pending the registration of the change of its seat to Prague 5, Krizeneckeho nam. 1078/5, 152 00 Czech Republic ("Oldco").

 

WHEREAS:

 

(A)

CME ME, CME Ltd. and PPF have entered into a Framework Agreement dated 13 December 2004 pursuant to which CME ME has agreed to purchase from PPF 85% of the TV Nova Group (the "Framework Agreement").

 

(B)

In connection with such acquisition of the TV Nova Group, PPF has acquired a 15% Newco Ownership Interest from CME Ltd and a 15% Oldco Ownership Interest from CME ME and CME Ltd has retained an 85% Newco Ownership Interest and CME ME has retained an 85% Oldco Ownership Interest.

 

(C)

The Parties acknowledge that during the term of this Agreement CME Ltd may transfer its 85% Newco Ownership Interest to CME ME.

 

(D)

Pursuant to the Framework Agreement, the Parties wish to enter into this Agreement to regulate the conduct of the TV Nova Group and Newco and Oldco.

 

IT IS AGREED as follows:

 


 

1

Interpretation

 

1.1

Capitalized terms not otherwise defined herein shall, unless the context requires otherwise, bear the meanings ascribed thereto in the Framework Agreement;

 

"Acquisition Notice"

has the meaning given in Clause 10.2.7;

 

 

"Antimonopoly Approval"

means (i) a final and effective decision of the Antimonopoly Office or the Foreign Antimonopoly Office, approving the concentration of the Parties within the meaning of the applicable laws, as proposed in the proceeding before the Antimonopoly Office or the Foreign Antimonopoly Office, or (ii) a decision of the Antimonopoly Office or the Foreign Antimonopoly Office that the concentration of the Parties is not subject to the Antimonopoly Office’s nor the Foreign Antimonopoly Office’s approval, as the case may be;

 

 

"Board of Directors"

means the board of directors of any entity;

 

 

"Business Plan"

has the meaning given in Clause 8.1;

 

 

"Call"

has the meaning given in Clause 12.2;

 

 

"Call Notice"

has the meaning given in Clause 12.3.2;

 

 

"Call Price"

means an amount in US$ equal to the value of:

 

 

 

(i)    25% of the TV Nova Value as at the Closing Commencement Date (determined pursuant to the Framework Agreement)

 

 

 

plus

 

 

 

(ii)   interest accrued at the rate of One-Month LIBOR plus 200 bps per annum on the amount set out in (i) above during the period commencing on the Closing Completion Date and ending on the Settlement Date

 

 

 

minus

 

-2-


 

 

(iii)  the amount of any Distributions received by PPF from the TV Nova Group during the period commencing on the Closing Completion Date and ending on the Settlement Date,

 

 

 

subject to adjustment pursuant to Clause 12.6;

 

 

"CME Group Transfer"

means a transfer by CME ME or CME Ltd of all or any part of its CME Nova Interest to one or more of its affiliates;

 

 

"CME Loan"

means the Indebtedness of Oldco to CME ME created pursuant to the CME Loan Agreement;

 

 

"CME Loan Agreement"

means a loan agreement dated as of the date hereof between CME ME and Oldco;

 

 

"CME ME Acquisition Notice"

has the meaning given in Clause 10.3.5;

 

 

"CME Nova Interest"

means CME ME's Oldco Ownership Interest and CME Ltd’s or CME ME’s (as the case may be) Newco Ownership Interest;

 

 

"Commercial Code"

means the commercial code of the Czech Republic as is in force from time to time;

 

 

"Distributions"

means any cash dividend to Newco or Oldco shareholders (pursuant to the Commercial Code) and any payments of principal or interest pursuant to the CME Loan Agreement;

 

 

"Drag Along Right"

has the meaning given in Clause 11.2.1;

 

 

"Executive Directors"

means in respect of any Czech limited liability company, the one or more executive directors which constitute its statutory organ;

 

 

"Exercise Notice"

means a Put Notice or a Call Notice;

 

 

"Financial Year"

means the financial year of the TV Nova Group, which shall be a 12 month period ending on December 31 of each year;

 

-3-


 

"Galaxie Sport"

means a limited liability company organized and existing under the laws of the Czech Republic, with a registered capital of CZK 105,000, that operates a sports television broadcasting business pursuant to the Galaxie Sport License;

 

 

"Galaxie Sport License"

means license File No. Ru/72/02 granted by the Media Council on March 19, 2002 and valid for a period of 12 years from March 28, 2002, under which Galaxie Sport operates the Czech television broadcasting station called "Galaxie sport";

 

 

"Independent Valuer"

has the meaning given in Clause 12.4.1;

 

 

"Initial Business Plan"

means the 2005 TV Nova Budget;

 

 

"Minority Rights"

means PPF's right to approve the matters set out in Clause 6;

 

 

"New Capital"

has the meaning given in Clause 9.1;

 

 

"Newco Ownership Interest"

means an Ownership Interest in Newco;

 

 

"Objection Notice"

has the meaning given in Clause 12.3.3;

 

 

"Oldco Ownership Interest"

means an Ownership Interest in Oldco;

 

 

"One-Month LIBOR"

means the interest rate determined by the British Bankers’ Association as the London Interbank Offered Rate for US$ for a one month period at or about 11 a.m. (London time) on the second London banking day of each month, as displayed on the relevant Bloomberg screen;

 

 

"Ownership Interests"

means the shares, participation rights or other equity ownership interest of any corporate person (including the right to receive any Distributions from time to time in relation to such Ownership Interest), and any reference to an [Entity] Ownership Interest refers to the equity ownership of the relevant entity;

 

 

"PC Disposal Notice"

means a notice delivered by CME ME to PPF following the delivery of an Exercise Notice, pursuant to which CME ME elects to sell 100% of the TV Nova Group to a third party;

 

-4-


 

"PC Purchaser"

has the meaning given in Clause 12.5.3(a);

 

 

"PPF Nova Interest"

means PPF's Newco Ownership Interest and PPF's Oldco Ownership Interest;

 

 

"PPF Transfer Notice"

has the meaning given in Clause 10.3.3;

 

 

"Pre-Emption Rights"

has the meaning given in Clause 9.1;

 

 

"Proportionate Percentage"

means at any time the percentage that is equal to such Party's [Entity] Ownership Interest as a percentage of the total issued and outstanding [Entity] Ownership Interest;

 

 

"Proposed Participation Price"

means the proposed price for the subscription for and participation in New Capital as specified by Newco or Oldco (as appropriate) in the relevant decision of the general meeting;

 

 

"Purchaser"

has the meaning given in Clause 10.2.6;

 

 

"Put"

has the meaning given in Clause 12.1;

 

 

"Put Notice"

has the meaning given in Clause 12.3.1;

 

 

"Put Price"

means an amount in US$ equal to the lesser of the value of:

 

 

 

(i)   15% of the value of the TV Nova Group as determined on the date of exercise of the Put pursuant to Clause 12.4; or

 

 

 

(ii)  15% of the TV Nova Value as at the Closing Commencement Date (determined pursuant to the Framework Agreement),

 

 

 

subject to adjustment pursuant to Clause 12.6;

 

 

"Settlement Date"

has the meaning given in Clause 12.5.4;

 

 

"Supervisory Board"

means the supervisory board of a limited liability company or joint stock company;

 

-5-


 

"Tag Along Notice"

has the meaning given in Clause 11.1.2;

 

 

"Transaction Memorandum"

means the agreement of even date herewith between CME ME and PPF setting out a detailed description of the steps required to give effect to the acquisition of the TV Nova Group by CME ME and CME Ltd;

 

 

"Tag Along Right"

has the meaning given in Clause 11.1.1;

 

 

"Transfer Notice"

has the meaning given in Clause 10.2.5;

 

 

"TV Nova Executive Committee"

has the meaning in Clause 4.2;

 

 

"Voting Rights"

means the voting rights of a Party in Newco or Oldco and/or any of the companies in the TV Nova Group and/or such Party's subsidiaries and/or other entities over which it exercises management control (as appropriate).

 

1.2

Interpretation

 

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)

reference to an "affiliate" of any person shall mean any "subsidiary" of that person or a "holding company" of that person or any other subsidiary of that holding company, as "subsidiary" and "holding company" are defined in Section 736 of the Companies Act 1985, provided that notwithstanding such definition, each member of the PPF Group shall be deemed an affiliate of PPF for purposes of the Transaction Documents;

 

 

(d)

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;

 

 

(e)

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);

 

-6-


 

 

(f)

references to time are to Central European Time;

 

 

(g)

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;

 

 

(h)

headings, recitals and titles are for convenience only and do not affect the interpretation of this Agreement;

 

 

(i)

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;

 

 

(j)

references to a "Party", or the "Parties" shall be to CME ME, CME Ltd, PPF, Newco and Oldco and shall be construed as to include each of their respective legal successors and permitted assignees;

 

 

(k)

"control" means the power to direct the management and policies of the entity whether through the ownership of share capital, by contract or otherwise; and