EXHIBIT 10.40
CTC MEDIA, INC.
REGISTRATION RIGHTS AGREEMENT
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This Agreement dated as of May __, 2006 is entered into by and among CTC
Media, Inc., a Delaware corporation (the "COMPANY"), Alfa, MTG, Baring and
Fidelity (each as defined on Exhibit A), and each of the parties listed on
Exhibit B (the "ADDITIONAL STOCKHOLDERS"). Alfa, MTG, Baring and Fidelity are
referred to herein as "MAJOR STOCKHOLDERS". The Major Stockholders and the
Additional Stockholders are referred to herein as the "STOCKHOLDERS".
Recitals
WHEREAS, the Company and certain of the Stockholders are parties to various
existing agreements that provide for certain arrangements with respect to the
registration of shares of capital stock of the Company under the Securities Act;
and
WHEREAS, subject to and conditional upon the closing of the Company's
initial public offering of its Common Stock, the Company and the Stockholders
wish to terminate all such existing agreements and to provide for certain new
arrangements with respect to the registration of shares of capital stock of the
Company under the Securities Act;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following
respective meanings:
"Affiliated Party" means, with respect to any Stockholder, any person or
entity which, directly or indirectly, controls, is controlled by or is under
common control with such Stockholder, including, without limitation, any general
partner, officer or director of such Stockholder and any venture capital fund
now or hereafter existing which is controlled by one or more general partners
of, or shares the same management company as, such Stockholder; provided that,
with respect to Sector Investment Holding Company, each of EPIC Investments
International Limited, Sovcap, Inc. (Delaware), the European Bank for
Reconstruction and Development, the International Finance Corporation, New
Europe Investment Fund, SICAV (Luxembourg), SIBAG Investments Inc. and
Ceskoslovenska Obchodni Banka, A.S. (Czech Republic) shall be deemed to be its
Affiliated Party.
"Commission" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, $0.01 par value per share, of the
Company.
"Company" has the meaning ascribed to it in the introductory paragraph
hereof.
"Effective Date" has the meaning ascribed to it in Section 4 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Indemnified Party" means a party entitled to indemnification pursuant to
Section 2.5.
"Indemnifying Party" means a party obligated to provide indemnification
pursuant to Section 2.5.
"Initiating Holders" means the Stockholders initiating a request for
registration pursuant to Section 2.1(a) or 2.1(b), as the case may be.
"Other Holders" means holders of securities of the Company (other than
Stockholders) to the extent they are entitled, by contract with the Company as
of the date hereof, to have securities included in a Registration Statement.
"Prospectus" means the prospectus included in any Registration Statement,
as amended or supplemented by an amendment or prospectus supplement, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
"Registrable Shares" means (a) the shares of Common Stock held by the
Stockholders on the date hereof, (b) the shares of Common Stock to be issued
upon the automatic conversion (at and effective upon the closing of the
Company's initial public offering of Common Stock) of shares of any series of
preferred stock of the Company held by the Stockholders on the date hereof, (c)
any shares of Common Stock acquired by a Stockholder in connection with the
exercise by such Stockholder of its rights under Section 4.1 (Right of First
Offer) of the Stockholders Agreement to become effective on the Effective Date
among the Company and certain of its stockholders and (d) any other shares of
Common Stock issued in respect of such shares (because of stock splits, stock
dividends, reclassifications, recapitalizations or similar events); provided,
however, that shares of Common Stock which are Registrable Shares shall cease to
be Registrable Shares upon any sale pursuant to a Registration Statement or Rule
144 under the Securities Act.
"Registration Expenses" means all expenses incurred by the Company in
complying with the provisions of Section 2, including, without limitation, all
registration and filing fees, exchange listing fees, printing expenses, fees and
expenses of counsel for the Company and the fees and expenses, not to exceed
$75,000, of one counsel selected by the Selling Stockholders to represent the
Selling Stockholders, state Blue Sky fees and expenses, and the expense of any
special audits incident to or required by any such registration, but excluding
underwriting discounts, selling commissions and the fees and expenses of Selling
Stockholders' own counsel (other than the counsel selected to represent all
Selling Stockholders).
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"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a similar limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Securities Act" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Selling Stockholder" means any Stockholder owning Registrable Shares
included in a Registration Statement.
"Stockholder" has the meaning ascribed to it in the introductory paragraph
hereof.
2. Registration Rights.
2.1 Required Registrations.
(a) At any time beginning six months following the Effective Date, one
or more Stockholders holding in the aggregate not less than four percent (4%) of
the total number of Registrable Shares then outstanding (provided, however, that
in the case of each such request, at least one of the Major Stockholders shall
participate in making such request and shall be deemed to be an Initiating
Holder for purposes of such Registration Statement) may request, in writing,
that the Company effect the registration on Form S-1 or Form S-2 (or any
successor form) of Registrable Shares owned by such Stockholder or Stockholders
that, together with the Shares to be sold by all other Stockholders
participating in such registration, have an aggregate value of at least fifty
million dollars ($50,000,000) (based on the last reported public market price on
the last business day preceding the date of such request).
(b) At any time after the Company becomes eligible to file a
Registration Statement on Form S-3 (or any successor form relating to secondary
offerings), any two or more unaffiliated Stockholders holding Registrable Shares
may request, in writing, that the Company effect the registration on Form S-3
(or such successor form), of Registrable Shares having an aggregate value of at
least ten million dollars ($10,000,000) (based on the last reported public
market price on the last business day preceding the date of such request).
(c) Upon receipt of any request for registration pursuant to this
Section 2, the Company shall promptly give written notice of such proposed
registration to all other Stockholders and to any Other Holders. Such
Stockholders and Other Holders shall have the right, by giving written notice to
the Company within twenty (20) business days after the Company provides its
notice, to elect to have included in such registration such of their Registrable
Shares as such Stockholders may request in such notice of election, subject in
the case of an underwritten offering to the terms of Section 2.1(d). Thereupon,
the Company shall, as expeditiously as possible, use its commercially reasonable
efforts to effect the registration on an appropriate registration form of all
Registrable Shares that the Company has been requested to so register; provided,
however, that in the case of a registration requested under Section 2.1(b), the
Company will only be obligated to effect such registration on Form S-3 (or any
successor form).
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(d) If the Initiating Holders intend to distribute the Registrable
Shares covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to Section 2.1(a) or
(b), as the case may be, and the Company shall include such information in its
written notice referred to in Section 2.1(c). In such event, (i) the right of
any other Stockholder to include its Registrable Shares in such registration
pursuant to Section 2.1(a) or (b), as the case may be, shall be conditioned upon
such other Stockholder's participation in such underwriting on the terms set
forth herein, and (ii) all Stockholders including Registrable Shares in such
registration shall enter into an underwriting agreement upon customary terms
with the underwriter or underwriters managing the offering; provided that such
underwriting agreement shall not provide for indemnification or contribution
obligations on the part of the Stockholders materially greater than the
obligations of the Stockholders pursuant to Section 2.5. The Initiating Holders
shall have the right to select the managing underwriter(s) for any underwritten
offering requested pursuant to Section 2.1(a) or (b), subject to the approval of
the Company, which approval will not be unreasonably withheld, conditioned or
delayed. If any Stockholder who has requested inclusion of its Registrable
Shares in such registration as provided above disapproves of the terms of the
underwriting, such Stockholder may elect, by written notice to the Company, to
withdraw its Registrable Shares from such Registration Statement and
underwriting.
If the managing underwriter advises the Company in writing that marketing
factors require a limitation on the number of shares to be underwritten, (i) to
the extent the Company is permitted to do so pursuant to the applicable
registration rights agreements, the shares held by Other Holders (other than
Registrable Shares) shall first be excluded from such Registration Statement and
underwriting to the extent deemed advisable by the managing underwriter, (ii) if
a further reduction of the number of shares is required, the shares held by
Stockholders other than the Initiating Holders shall be excluded from such
Registration Statement and underwriting to the extent deemed advisable by the
managing underwriter (and if some shares held by such Stockholders are not to be
excluded then such Stockholders shall be permitted to include shares in such
Registration Statement in proportion, as nearly as practicable, to the
respective number of Registerable Shares then held by them), and (iii) if a
further reduction of the number of shares is required, the number of shares that
may be included in such Registration Statement and underwriting shall be
allocated among all Initiating Holders in proportion, as nearly as practicable,
to the respective number of Registrable Shares held by them on the date of the
request for registration made pursuant to Section 2.1(a) or (b), as the case may
be. If any such Stockholder would thus be entitled to include more shares than
such Stockholder requested to be registered, the excess shall be allocated among
other participating Stockholders pro rata in the manner described above. If the
managing underwriter has not limited the number of Registrable Shares or other
securities to be underwritten, the Company may include securities for its own
account in such registration if the managing underwriter so agrees and if the
number of Registrable Shares and other securities which would otherwise have
been included in such registration and underwriting will not thereby be limited.
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(e) The Company shall not be required pursuant to Section 2.1(a) to
effect (i) more than one registration initiated by any one Major Stockholder or
(ii) more than four registrations in the aggregate. For purposes of this Section
2.1(e), a Registration Statement shall not be counted until such time as such
Registration Statement has been declared effective by the Commission (unless the
Initiating Holders withdraw their request for such registration (other than as a
result of information concerning the business or financial condition of the
Company which is made known to the Stockholders after the date on which such
registration was requested) and elect not to pay the Registration Expenses
therefor pursuant to Section 2.4) and remained effective in compliance with the
provisions of the Securities Act with respect to the disposition of all
Registrable Shares covered by such Registration Statement for a period of six
months from the effective date thereof or such lesser period until all the
Registrable Shares covered thereby have been sold. For purposes of this Section
2.1(e), a Registration Statement shall not be counted if, as a result of an
exercise of the underwriter's cut-back provisions, less than fifty percent (50%)
of the total number of Registrable Shares that the Initiating Holders have
requested to be included in such Registration Statement are so included.
(f) If at the time of any request to register Registrable Shares by
Initiating Holders pursuant to this Section 2.1, the Company is engaged or has
plans to engage in a registered public offering or is engaged in any other
activity which, in the good faith determination of the Company's Board of
Directors, would be adversely affected by the requested registration, then the
Company may at its option direct that such request be delayed for a period not
in excess of 30 days from the date of such request, such right to delay a
request to be exercised by the Company not more than twice in any 12-month
period.
2.2 Incidental Registration.
(a) Whenever the Company proposes to file a Registration Statement
covering shares of Common Stock (other than a Registration Statement filed
pursuant to Section 2.1 and a Registration Statement covering shares to be sold
solely for the account of Other Holders, which shares were acquired pursuant to
either (i) an acquisition of a company of which they were formerly stockholders,
(ii) a "private placement" under the Securities Act or (iii) Rule 144A under the
Securities Act) at any time and from time to time, it will, prior to such
filing, give written notice to all Stockholders of its intention to do so;
provided, that no such notice need be given if no Registrable Shares are to be
included therein as a result of a written notice from the managing underwriter
pursuant to Section 2.2(b). Upon the written request of a Stockholder or
Stockholders given within twenty (20) business days after the Company provides
such notice (which request shall state the intended method of disposition of
such Registrable Shares), the Company shall use its commercially reasonable
efforts to cause all Registrable Shares which the Company has been requested by
such Stockholder or Stockholders to register to be registered under the
Securities Act to the extent necessary to permit their sale or other disposition
in accordance with the intended methods of distribution specified in the request
of such Stockholder or Stockholders; provided that the Company shall have the
right to postpone or withdraw any registration effected pursuant to this Section
2.2 without obligation to any Stockholder.
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(b) If the registration for which the Company gives notice pursuant to
Section 2.2(a) is a registered public offering involving an underwriting, the
Company shall so advise the Stockholders as a part of the written notice given
pursuant to Section 2.2(a). In such event, (i) the right of any Stockholder to
include its Registrable Shares in such registration pursuant to this Section 2.2
shall be conditioned upon such Stockholder's participation in such underwriting
on the terms set forth herein and (ii) all Stockholders including Registrable
Shares in such registration shall enter into an underwriting agreement upon
customary terms with the underwriter or underwriters selected for the
underwriting by the Company. If any Stockholder who has requested inclusion of
its Registrable Shares in such registration as provided above disapproves of the
terms of the underwriting, such person may elect, by written notice to the
Company, to withdraw its shares from such Registration Statement and
underwriting.
If the managing underwriter advises the Company in writing that marketing
factors require a limitation on the number of shares to be underwritten, (i) the
shares held by holders of securities of the Company other than Stockholders and
Other Holders shall be excluded from such Registration Statement and
underwriting to the extent deemed advisable by the managing underwriter, (ii) if
a further reduction of the number of shares is required, the number of secondary
shares that may be included in such Registration Statement and underwriting
shall be allocated among all Stockholders and Other Holders requesting
registration in proportion, as nearly as practicable, to the respective number
of shares of Common Stock held by them on the date the Company gives the notice
specified in Section 2.2(a) (except to the extent the Company is obligated by
the terms of a registration rights agreement as in effect as of the date hereof
with any Other Holder to permit such Other Holder to include a greater number of
such Other Holder's shares, in which case such Other Holder(s) shall be
permitted to include such number of shares as is required pursuant to such other
registration rights agreement, and the remaining secondary shares permitted to
be sold shall be allocated pro rata among the Stockholders and remaining Other
Holders), and (iii) if a further reduction of the number of shares is required,
only shares to be sold by the Company shall be included in such registration. If
any Stockholder or Other Holder would thus be entitled to include more shares
than such holder requested to be registered, the excess shall be allocated among
other requesting Stockholders and Other Holders pro rata in the manner described
above.
2.3 Registration Procedures.
(a) If and whenever the Company is required by the provisions of this
Agreement to use its best efforts to effect the registration of any Registrable
Shares under the Securities Act, the Company shall:
(i) file with the Commission a Registration Statement with respect
to such Registrable Shares and use its best efforts to cause that Registration
Statement to become effective as soon as possible;
(ii) as expeditiously as possible prepare and file with the
Commission any amendments and supplements to the Registration Statement and the
Prospectus included in the Registration Statement as may be necessary to comply
with the provisions of the Securities Act (including the anti-fraud provisions
thereof) and to keep the Registration Statement effective for six months from
the effective date or such lesser period until all such Registrable Shares are
sold;
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(iii) as expeditiously as possible furnish to each Selling
Stockholder such reasonable numbers of copies of the Prospectus, including any
preliminary Prospectus, in conformity with the requirements of the Securities
Act, and such other documents as such Selling Stockholder may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Shares owned by such Selling Stockholder;
(iv) as expeditiously as possible use its best efforts to register
or qualify the Registrable Shares covered by the Registration Statement under
the securities or Blue Sky laws of such states as the Selling Stockholders shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the Selling Stockholders to consummate the
public sale or other disposition in such states of the Registrable Shares owned
by the Selling Stockholders; provided, however, that the Company shall not be
required in connection with this paragraph (iv) to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction or to amend its Certificate of Incorporation or By-laws in a manner
that the Board of Directors of the Company determines is inadvisable;
(v) as expeditiously as possible, cause all such Registrable Shares
to be listed on each securities exchange or automated quotation system on which
similar securities issued by the Company are then listed;
(vi) promptly provide a transfer agent and registrar for all such
Registrable Shares not later than the effective date of such Registration
Statement;
(vii) promptly make available for inspection by the Selling
Stockholders, any managing underwriter participating in any disposition pursuant
to such Registration Statement, and any attorney or accountant or other agent
retained by any such underwriter or selected by the Selling Stockholders, all
pertinent financial and other records, pertinent corporate documents and
properties of the Company and cause the Company's officers, directors, employees
and independent accountants to supply all information reasonably requested by
any such seller, underwriter, attorney, accountant or agent in connection with
such Registration Statement; provided that any such party shall, upon the
request of the Company, enter into a confidentiality agreement with the Company
in form and substance reasonably satisfactory to the Company;
(viii) notify each Selling Stockholder, promptly after it shall
receive notice thereof, of the time when such Registration Statement has become
effective or a supplement to any Prospectus forming a part of such Registration
Statement has been filed;
(ix) as expeditiously as possible following the effectiveness of
such Registration Statement, notify each seller of such Registrable Shares of
any request by the Commission for the amending or supplementing of such
Registration Statement or Prospectus; and
(x) upon the written request of any Selling Stockholder, furnish to
such Selling Stockholder a copy of the Registration Statement prior to its
initial filing with the Commission.
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(b) If the Company has delivered a Prospectus to the Selling
Stockholders and after having done so the Prospectus is amended to comply with
the requirements of the Securities Act, the Company shall promptly notify the
Selling Stockholders and, if requested, the Selling Stockholders shall
immediately cease making offers of Registrable Shares and return all
Prospectuses to the Company. The Company shall promptly provide the Selling
Stockholders with revised Prospectuses and, following receipt of the revised
Prospectuses, the Selling Stockholders shall be free to resume making offers of
the Registrable Shares.
(c) In the event that, in the judgment of the Company, it is advisable
to suspend use of a Prospectus included in a Registration Statement due to
pending material developments or other events that have not yet been publicly
disclosed and as to which the Company believes public disclosure would be
detrimental to the Company, the Company shall notify all Selling Stockholders to
such effect, and, upon receipt of such notice, each such Selling Stockholder
shall immediately discontinue any sales of Registrable Shares pursuant to such
Registration Statement until such Selling Stockholder has received copies of a
supplemented or amended Prospectus or until such Selling Stockholder is advised
in writing by the Company that the then current Prospectus may be used and has
received copies of any additional or supplemental filings that are incorporated
or deemed incorporated by reference in such Prospectus. Notwithstanding anything
to the contrary herein, the Company shall not exercise its rights under this
Section 2.3(c) to suspend sales of Registrable Shares for a period in excess of
30 days consecutively or 60 days in any 365-day period.
2.4 Allocation of Expenses. The Company will pay all Registration Expenses
for all registrations under this Agreement; provided, however, that if a
registration under Section 2.1 is withdrawn at the request of the Initiating
Holders (other than as a result of information concerning the business or
financial condition of the Company which is made known to the Selling
Stockholders after the date on which such registration was requested) and if the
Initiating Holders elect not to have such registration counted as a registration
requested under Section 2.1, the Selling Stockholders shall pay the Registration
Expenses of such registration pro rata in accordance with the number of their
Registrable Shares included in such registration.
2.5 Indemnification and Contribution.
(a) In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, the Company will indemnify
and hold harmless each Selling Stockholder, each underwriter of such Registrable
Shares, and each other person, if any, who controls such Selling Stockholder or
underwriter within the meaning of the Securities Act or the Exchange Act against
any losses, claims, damages or liabilities, joint or several, to which such
Selling Stockholder, underwriter or controlling person may become subject under
the Securities Act, the Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement under which such Registrable Shares were registered under the
Securities Act, any preliminary Prospectus or final Prospectus contained in the
Registration Statement, or any amendment or supplement to such Registration
Statement, (ii) the omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not
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misleading, or (iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law in connection with the Registration Statement or the offering
contemplated thereby; and the Company will reimburse such Selling Stockholder,
underwriter and each such controlling person for any legal or any other expenses
reasonably incurred by such Selling Stockholder, underwriter or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not be
liable in any such case to any Selling Stockholder, underwriter or controlling
person, as the case may be, to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or omission made
in such Registration Statement, preliminary Prospectus or Prospectus, or any
such amendment or supplement, in reliance upon and in conformity with
information furnished to the Company, in writing, by or on behalf of such
Selling Stockholder, underwriter or controlling person specifically for use in
the preparation thereof.
(b) In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, each Selling Stockholder,
severally and not jointly, will indemnify and hold harmless the Company, each of
its directors and officers and each underwriter (if any) and each person, if
any, who controls the Company or any such underwriter within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages or
liabilities, joint or several, to which the Company, such directors and
officers, underwriter or controlling person may become subject under the
Securities Act, Exchange Act, state securities or Blue Sky laws or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary Prospectus or final Prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or (ii)
any omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, if and to
the extent (and only to the extent) that the statement or omission was made in
reliance upon and in conformity with information relating to such Selling
Stockholder furnished in writing to the Company by such Selling Stockholder
specifically for use in connection with the preparation of such Registration
Statement, Prospectus, amendment or supplement; provided, however, that the
obligations of a Selling Stockholder hereunder shall be limited to an amount
equal to the net proceeds to such Selling Stockholder of Registrable Shares sold
in connection with such registration.
(c) Each Indemnified Party shall give notice to the Indemnifying Party
promptly after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom; provided,
that counsel for the Indemnifying Party, who shall conduct the defense of such
claim or litigation, shall be approved by the Indemnified Party (whose approval
shall not be unreasonably withheld, conditioned or delayed); and, provided,
further, that the failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Section 2.5 except to the extent that the Indemnifying Party is adversely
affected by such failure. The Indemnified Party may participate in such defense
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at such party's expense; provided, however, that the Indemnifying Party shall
pay such expense if the Indemnified Party reasonably concludes that (i) there
may be legal defenses available to it that are different from or in addition to
those available to the Indemnifying Party or (ii) representation of such
Indemnified Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between the
Indemnified Party and any other party represented by such counsel in such
proceeding; provided further that in no event shall the Indemnifying Party be
required to pay the expenses of more than one law firm per jurisdiction as
counsel for the Indemnified Party. The Indemnifying Party also shall be
responsible for the expenses of such defense if the Indemnifying Party does not
elect to assume such defense. No Indemnifying Party, in the defense of any such
claim or litigation shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect of such
claim or litigation, and no Indemnified Party shall consent to entry of any
judgment or settle such claim or litigation without the prior written consent of
the Indemnifying Party, which consent shall not be unreasonably withheld,
conditioned or delayed.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 2.5 is
due in accordance with its terms but for any reason is held to be unavailable to
an Indemnified Party in respect to any losses, claims, damages and liabilities
referred to herein, then the Indemnifying Party shall, in lieu of indemnifying
such Indemnified Party, contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities to
which such party may be subject in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Selling Stockholders
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative fault of the Company and the Selling
Stockholders shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of material fact related to information
supplied by the Company or the Selling Stockholders and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Selling Stockholders agree that
it would not be just and equitable if contribution pursuant to this Section
2.5(d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this Section 2.5(d), (i) in no case
shall any one Selling Stockholder be liable or responsible for any amount in
excess of the net proceeds received by such Selling Stockholder from the
offering of Registrable Shares and (ii) the Company shall be liable and
responsible for any amount in excess of such proceeds; provided, however, that
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section
2.5(d), notify such party or parties from whom contribution may be sought, but
the omission so to notify such party or parties from whom contribution may be
sought shall not relieve such party from any other obligation it or they may
have thereunder or otherwise under this Section 2.5(d). No party shall be liable
for contribution with respect to any action, suit, proceeding or claim settled
without its prior written consent, which consent shall not be unreasonably
withheld, conditioned or delayed.
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(e) The rights and obligations of the Company and the Selling
Stockholders under this Section 2.5 shall survive the termination of this
Agreement.
2.6 Other Matters with Respect to Underwritten Offerings. In the event that
Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering pursuant to Section 2.1, the Company agrees to (a) enter
into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of the Company and its
subsidiaries and customary covenants and agreements to be performed by the
Company, including without limitation customary provisions with respect to
indemnification by the Company of the underwriters of such offering; (b) use its
best efforts to cause its legal counsel to render customary opinions to the
underwriters with respect to the Registration Statement; and (c) use its best
efforts to cause its independent public accounting firm to issue customary "cold
comfort letters" to the underwriters with respect to the Registration Statement.
2.7 Information by Holder. Each holder of Registrable Shares included in
any registration shall furnish to the Company such information regarding such
holder and the distribution proposed by such holder as the Company may
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
2.8 Confidentiality of Notices. Any Stockholder receiving any written
notice from the Company regarding the Company's plans to file a Registration
Statement shall treat such notice confidentially and shall not disclose such
information to any person other than as necessary to exercise its rights under
this Agreement.
2.9 Rule 144 Requirements. Following the Effective Date, the Company agrees
to:
(a) make and keep current public information about the Company
available, as those terms are understood and defined in Rule 144;
(b) use its best efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) furnish to any holder of Registrable Shares upon request (i) a
written statement by the Company as to its compliance with the reporting
requirements of Rule 144 and of the Securities Act and the Exchange Act (at any
time after it has become subject to such reporting requirements), (ii) a copy of
the most recent annual or quarterly report of the Company, and (iii) such other
reports and documents of the Company as such holder may reasonably request to
avail itself of any similar rule or regulation of the Commission allowing it to
sell any such securities without registration.
-11-
2.10 Termination. This Agreement shall terminate upon the earliest of (a)
the date on which all Stockholders may sell all Registrable Shares held by the
Stockholders without restriction pursuant to Rule 144(k) under the Securities
Act, (b) the date on which no Stockholder holds any Registrable Shares and (c)
the date on which Stockholders holding Registrable Shares representing at least
ninety five percent (95 %) of the voting power of all Registrable Shares then
held by the Stockholders agree in writing to terminate this Agreement. Section
2.5 hereof shall survive the termination of this Agreement. Any Stockholder that
no longer holds any Registrable Shares shall cease to be Stockholder hereunder
except for purposes of Section 2.5 hereof.
3. Transfers of Rights; Calculation of Share Numbers.
3.1 Transfer of Rights. This Agreement, and the rights and obligations
of each Stockholder hereunder, may be assigned by such Stockholder to (a) any
person or entity to which the lesser of (i) at least two million five hundred
thousand (2,500,000) Shares (subject to appropriate adjustment for stock splits,
stock dividends, recapitalizations and similar events occurring after the date
of this Agreement) or (ii) all Shares then owned by such Stockholder, are
transferred by such Stockholder, or (b) to any Affiliated Party of such
Stockholder, and, in each case, such transferee shall be deemed a "Stockholder"
and, if applicable, a "Major Stockholder" for purposes of this Agreement;
provided that such assignment of rights shall be contingent upon the transferee
providing a written instrument to the Company notifying the Company of such
transfer and assignment and agreeing in writing to be bound by the terms of this
Agreement.
3.2 Calculation of Share Ownership. In determining the number or
percentage of shares owned by a Stockholder for purposes of ascertaining or
exercising rights under this Agreement, all shares held by Affiliated Parties of
such Stockholder shall be aggregated together (provided that no shares shall be
attributed to more than one entity or person within any such group of Affiliated
Parties or otherwise counted more than once).
4. Effectiveness; Termination of Prior Agreements; Complete Agreement. This
Agreement shall become effective upon, and is subject to, the closing of the
initial underwritten public offering of Common Stock of the Company (the
"EFFECTIVE DATE"); provided, however, that if the Effective Date does not occur
prior to August 15, 2006, this Agreement shall be null and void and of no force
or effect. Upon such effectiveness, each existing agreement between the Company
and any of the Stockholders providing for registration rights shall terminate
and shall thereafter be of no further force or effect. This Agreement
constitutes the entire agreement and understanding of the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter.
5. General.
5.1 Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
5.2 Specific Performance. In addition to any and all other remedies that
may be available at law in the event of any breach of this Agreement, each
Stockholder shall be entitled to specific performance of the agreements and
obligations of the Company hereunder and to such other injunctive or other
equitable relief as may be granted by a court of competent jurisdiction.
-12-
5.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware (without reference to the
conflicts of law provisions thereof).
5.4 Notices. All notices, requests, consents and other communications
under this Agreement shall be in writing and shall be deemed delivered (i) three
business days after being sent by registered or certified mail, return receipt
requested, postage prepaid or (ii) one business day after being sent via a
reputable international overnight courier service guaranteeing next business day
delivery, in each case to the intended recipient as set forth below:
If to the Company, at Xxxxxx Xxxxxx 00X, 000000, Xxxxxx, Xxxxxx, attention:
Chief Financial Officer, facsimile: x0 000 000-0000, or at such other address as
may have been furnished in writing by the Company to the other parties hereto,
with a copy to WilmerHale, 00 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx, facsimile:
x00-00-0000-0000, email: xxxxxx.xxxxxxx@xxxxxxxxxx.xxx, attention: Xxxxxx
Xxxxxxx, Esq.; or
If to a Stockholder, at its address set forth on Exhibit A or Exhibit B, as
the case may be, or at such other address as may have been furnished in writing
by such Stockholder to the other parties hereto.
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or electronic
mail), but no such notice, request, consent or other communication shall be
deemed to have been duly given unless and until it is actually received by the
party for whom it is intended. Any party may change the address to which
notices, requests, consents or other communications hereunder are to be
delivered by giving the other parties notice in the manner set forth in this
Section 5.4.
5.5 Amendments and Waivers. This Agreement may be amended and the
observance of any term of this Agreement may be waived with respect to all
parties to this Agreement (either generally or in a particular instance and
either retroactively or prospectively), with the written consent of the Company
and Stockholders holding Registrable Shares representing at least ninety percent
(90%) of the voting power of all Registrable Shares then held by Stockholders.
Notwithstanding the foregoing, this Agreement may not be amended and the
observance of any term hereunder may not be waived with respect to any
Stockholder without the written consent of such Stockholder unless such
amendment or waiver applies to all Stockholders in the same fashion. The Company
shall give prompt written notice of any amendment hereof or waiver hereunder to
any party hereto that did not consent in writing to such amendment or waiver.
Any amendment or waiver effected in accordance with this Section 5.5 shall be
binding on all parties hereto, even if they do not execute such consent. No
waivers of or exceptions to any term, condition or provision of this Agreement,
in any one or more instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such term, condition or provision.
-13-
5.6 Pronouns. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural, and vice
versa.
5.7 Counterparts; Facsimile Signatures. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, and
all of which together shall constitute one and the same document. This Agreement
may be executed by facsimile signatures.
5.8 Section Headings and References. The section headings are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties. Any reference in this agreement to a
particular section or subsection shall refer to a section or subsection of this
Agreement, unless specified otherwise.
*****
-14-
Executed as of the date first written above.
CTC MEDIA, INC.
By:
-----------------------------------
Xxxxxx Xxxxxxx
Chief Financial Officer
MAJOR STOCKHOLDERS:
MTG BROADCASTING AB
By:
-----------------------------------
Name:
Title:
ALFA CAPITAL HOLDINGS (CYPRUS) LIMITED
By:
-----------------------------------
Name:
Title:
JAYSTONE LIMITED
By:
-----------------------------------
Name:
Title:
CAVENDISH NOMINEES LIMITED
By:
-----------------------------------
Name:
Title:
[Registration Rights Agreement]
SECTOR INVESTMENT HOLDING
COMPANY LIMITED
By:
----------------------------------
Name:
Title:
FIDELITY INVESTMENT FUNDS
ICVC-FIDELITY EUROPEAN
OPPORTUNITIES FUND
By:
-----------------------------------
Name:
Title:
FIDELITY FUNDS -EUROPEAN SMALLER
COMPANY FUND
By:
-----------------------------------
Name:
Title:
FIDELITY INSTITUTIONAL FUNDS
ICVC-EMERGING MARKETS FUND
By:
-----------------------------------
Name:
Title:
FIDELITY FUNDS-EMERGING MARKETS FUND
By:
-----------------------------------
Name:
Title:
[Registration Rights Agreement]
-2-
FIDELITY INVESTMENT TRUST: FIDELITY
EMERGING MARKETS FUND
By:
-----------------------------------
Name:
Title:
FIDELITY ADVISOR SERIES VIII: FIDELITY
ADVISOR EMERGING MARKETS FUND
By:
-----------------------------------
Name:
Title:
FIDELITY EMERGING MARKETS FUND
By:
-----------------------------------
Name:
Title:
ADDITIONAL STOCKHOLDERS
ALLIANCE SCANEAST FUND, L.P.
By:
-----------------------------------
Name:
Title:
--------------------------------------
Xxxxxx X. Xxxxxx
[Registration Rights Agreement]
-3-
DECLARATION OF TRUST ESTABLISHED BY
XXXX X. XXXXXXXXX AS TRUSTOR U/A
SEPTEMBER 13, 1995
By:
-----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Trustee/Successor Trustee
NORTHWOOD VENTURES LLC
By:
-----------------------------------
Name:
Title:
[Registration Rights Agreement]
-4-
Exhibit A
Major Stockholders
Name and Address
MTG Broadcasting AB ("MTG") Skeppsbron 18
Box 2094
XX-000 00 Xxxxxxxxx
Xxxxxx
Tel: x00 0 000 000 00
Fax: x00 0 00 00 00
Attention: Chief Financial Officer
Alfa Capital Holdings (Cyprus) Ltd. ("ACH") Presidium Building
Jaystone Limited (together with ACH, "ALFA") 0xx Xxxxx
0 Xxxxxxxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxx
Tel: x000 00 000 000
Fax: x000 00 000 000
Attn: Xxxxxx X. Zyukin
Cavendish Nominees Limited ("CAVENDISH") c/o International Private Equity Services Ltd.
Xxxxxxxxx Xxxxx
00-00 Xxxxxxxx Xxxx
Xx. Xxxxx Xxxx, Xxxxxxxx
Xxxxxxx Xxxxxxx XX0 0XX
Tel: x0 (000) 0000000
Fax: x0 (000) 0000000
Attention: Chief Financial Officer
Sector Investment Holding Company Limited c/o International Private Equity Services Ltd.
(together with Cavendish, "BARING") Xxxxxxxxx Xxxxx
00-00 Xxxxxxxx Xxxx
Xx. Xxxxx Xxxx, Xxxxxxxx
Xxxxxxx Xxxxxxx XX0 0XX
Tel: x0 (000) 0000000
Fax: x0 (000) 0000000
Attention: Chief Financial Officer
Fidelity Investment Funds ICVC-Fidelity c/o Fidelity Investments
European Opportunities Fund 00 Xxxxxxxxxx Xxxxxx
Fidelity Funds -European Smaller Company Fund Mail Stop E 31C
Fidelity Institutional Funds ICVC-Emerging Markets Fund Boston, MA 02109-3614
Fidelity Funds -Emerging Markets Fund Tel: x0 000 000 0000
Fidelity Investment Trust: Fidelity Emerging Markets Fund Fax: x0 000 000 0000
Fidelity Advisor Series VIII: Fidelity Advisor Emerging Attention: Xxxxxx X. Xxxx
Markets Fund
Fidelity Emerging Markets Fund
(together, "FIDELITY")
Exhibit B
Additional Stockholders
Name and Address
Alliance ScanEast Fund, X.X. XxxXxx
Xxxxxxxxxxxxxxxx 00
00000 Xxxxxxxx
Xxxxxxx
Tel x000 0 0000 0000
Fax x000 0 0000 0000
Attention: Petri Saavalainen
xxxxx.xxxxxxxxxxx@xxxxxx.xxx
Xxxxxx, Xxxxxx X. Xxxxxx Capital Management
Xxx Xxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: x0-000-000-0000
Fax: x0-000-000-0000
xxx@xxxxxxxxxxxxx.xxx
Declaration of Trust Established by Xxxx X. Xxxxxxxxx c/x Xxxxxxx/Xxxxxxxxx Inc.
as Trustor U/A September 13, 1995 000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Tel: x0-000-000-0000
Fax: x0-000-000-0000
Attention: Xxxx X. Hagenbuch
xxx@xxxxxxxxx.xxx
Northwood Ventures LLC 000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
Tel: x0-000-000-0000
Fax: x0-000-000-0000
Attn: Xxxxx Xxxxxx
xxxxxxx@xxxxxxxxxxxxxxxxx.xxx
