DATED 7 SEPTEMBER 2009
Exhibit
10.7
EXECUTION
COPY
and
DEUTSCHE
BANK AG, LONDON BRANCH
as Dealer
Manager
DEALER MANAGER AGREEMENT
CONTENTS
|
|||||
Clause
|
Page | ||||
1.
|
Interpretation
|
1
|
|||
2.
|
Definitions
|
1
|
|||
3.
|
Authorisation
|
2
|
|||
4.
|
Appointment
of the Dealer Manager in respect of the Offer
|
2
|
|||
5.
|
Compensation
|
4
|
|||
6.
|
Representations
and Warranties of the Purchaser
|
5
|
|||
7.
|
8
|
||||
8.
|
Conditions
to the Obligations of the Dealer Manager and Termination
Rights
|
9
|
|||
9.
|
Indemnification
|
10
|
|||
10.
|
Xxx-Xxxxxxxxxx
|
00
|
|||
00.
|
Xxxxxxxx
|
00
|
|||
00.
|
Notices
|
11
|
|||
13.
|
Entire
Agreement
|
12
|
|||
14.
|
Successors
|
12
|
|||
15.
|
Assignment
|
12
|
|||
16.
|
Governing
Law
|
12
|
|||
17.
|
Partial
Invalidity
|
12
|
|||
18.
|
Miscellaneous
|
13
|
SCHEDULE
1
|
Conditions
Precedent Documentation
|
14
|
THIS AGREEMENT is made on 7
September 2009
BETWEEN:
(1)
|
CENTRAL EUROPEAN MEDIA
ENTERPRISES LTD. (the "Purchaser");
and
|
(2)
|
DEUTSCHE BANK AG, LONDON
BRANCH ("Deutsche
Bank", which expression shall, for the purposes of this Agreement,
include any affiliate of Deutsche Bank AG, London Branch) (the "Dealer
Manager");
|
both
collectively referred to as the "Parties".
WHEREAS:
(A)
|
The
Purchaser has, in a tender offer memorandum dated 7 September 2009 (the
"Offer to
Purchase"), invited holders of the outstanding EUR 245 million
8.25% Notes due May 2012 (the "Notes") to tender such
Notes for purchase for cash by the Purchaser on the terms and conditions
set out in the Offer to Purchase (the " Offer").
|
IT IS AGREED as
follows:
1.
|
INTERPRETATION
|
Unless
the contrary is stated, terms and expressions defined in the Offer to Purchase
shall have the same meanings in this Agreement. Any reference in this
Agreement to a clause, sub-clause or schedule is, unless otherwise stated, to a
clause or sub-clause of or schedule to this Agreement.
2.
|
DEFINITIONS
|
The terms
which follow, when used in this Agreement, shall have the meanings
indicated.
"affiliate" has the meaning
given to it in Rule 405 under the Securities Act, as amended;
"Agreements" means this
Agreement and the Tender Agency Agreement;
"Business Day" means, for all
purposes other than payments, any day (other than a Saturday, a Sunday, or a
public holiday) on which commercial banks and foreign exchange markets are open
for business in London and for payment, any day (other than a Saturday, a
Sunday, or a public holiday) on which commercial banks and foreign exchange
markets are open for business in London;
"Exchange Act" means the U.S.
Securities Exchange Act of 1934, as amended;
"Loss" means any liability,
damages, cost, loss or expense (including, without limitation, legal fees, costs
and expenses) except for punitive and consequential damages (being loss of
goodwill, opportunity or profit);
"Offer Materials" means the
documentation that the Purchaser has prepared or approved in connection with the
Offer, including each of:
|
(a)
|
the
Offer to Purchase and any information incorporated by reference therein on
the Launch Date but not including any subsequent revision, supplement or
amendment to, or incorporation of information in, the Offer to
Purchase;
|
|
(b)
|
any
amendments or supplements to the Offer to Purchase, as so amended or
supplemented, including any information incorporated by reference in the
Offer to Purchase by way of such amendments or supplements, in each case
as at the date of such amendments or
supplements;
|
|
(c)
|
any
announcement previously approved by the Purchaser relating to the Offer
made (i) by the issue of a press release to a Notifying News Service
and/or (ii) by the delivery of a notice (including a "DACE" Notice) to the
Clearing Systems for communication to Direct Participants, and/or
obtainable from the Tender Agent;
and
|
|
(d)
|
such
other announcements, press releases, notices, advertisements, information
and/or written material as may be prepared or previously approved by the
Purchaser for distribution and/or use in connection with the
Offer;
|
"person" means any individual,
company, corporation, firm, partnership, joint venture, association,
organisation, state or agency of a state or other entity, whether or not having
separate legal personality;
"Relevant Party" means the
Dealer Manager and its affiliates, directors, officers, employees, agents or
controlling persons (within the meaning of section 15 of the Securities Act and
section 20 of the Exchange Act);
"Securities Act" means the U.S.
Securities Act of 1933, as amended;
"Tender Agency Agreement" means
the tender agency agreement between the Purchaser and the Tender Agent dated 7
September 2009; and
"Tender Agent" means Deutsche
Bank AG, London Branch.
3.
|
AUTHORISATION
|
The
Purchaser confirms it has:
|
3.1.1
|
authorised
the Dealer Manager to act on its behalf in connection with the Offer and
in accordance with this Agreement;
and
|
|
3.1.2
|
prepared
and approved the Offer Materials and authorises the Dealer Manager to use
the Offer Materials in connection with the Offer and make market
announcements in relation to the
Offer.
|
4.
|
APPOINTMENT OF THE DEALER
MANAGER IN RESPECT OF THE
OFFER
|
4.1
|
The
Purchaser agrees that the Dealer Manager and its affiliates will act as
dealer manager in connection with the Offer and that the Purchaser will
not appoint any other person in connection with the Offer to carry out the
services specified in this Agreement. The Purchaser authorises
the Dealer Manager to act on its behalf in connection with the
Offer.
|
4.2
|
The
Dealer Manager accepts its appointment as dealer manager in connection
with the Offer, and agrees (to the extent permitted by applicable law) to
perform the following services in connection with the
Offer:
|
|
4.2.1
|
to
use its reasonable endeavours to identify eligible Noteholders and to
present the Offer to them on behalf of the Purchaser (including making
copies of the Offer Materials available to eligible
Noteholders). It is agreed that the Purchaser has given full
authority to the Dealer Manager to identify Noteholders by such means as
the Dealer Manager considers necessary or
desirable;
|
|
4.2.2
|
to
make its employees available at all reasonable times to answer queries
from, and provide additional information to, Noteholders in connection
with the Offer;
|
|
4.2.3
|
to
provide assistance as and when requested by the Purchaser in relation to
any decision to extend, re-open, amend, waive any condition of or
terminate the Offer;
|
|
4.2.4
|
to
communicate with the Tender Agent with respect to matters relating to the
Offer;
|
|
4.2.5
|
to
make or arrange for the making of such announcements on behalf of the
Purchaser as are agreed between the Parties in connection with the Offer;
and
|
|
4.2.6
|
to
provide such other advice and assistance and undertake such other duties
(including, but not limited to, those duties specifically ascribed to the
Dealer Manager in the Offer Materials) in connection with the Offer that
the Purchaser may reasonably request and as agreed in writing between the
Parties from time to time.
|
4.3
|
The
Dealer Manager may, in its sole discretion, continue to own or dispose of,
in any manner it may elect, any Notes it may beneficially own at the date
of this Agreement or acquire after such date, in any such case subject to
applicable law and, in particular, the Dealer Manager has no obligation to
the Purchaser pursuant to this Agreement, or otherwise, in respect of
Notes beneficially owned by it to tender or refrain from tendering such
Notes in the Offer, provided, however, that the Dealer Manager
has not taken, directly or indirectly, any action designed to
cause or to result in, or that has constituted or might reasonably be
expected to constitute, the manipulation of the price of any security to
facilitate the Offer.
|
4.4
|
The
Purchaser agrees that, from the date of this Agreement, it will not
(unless required to do so by applicable law or regulation) file or publish
any material (including any announcement, press release, notice,
advertisement or similar information) in connection with the Offer or that
uses the name of the Dealer Manager or refers to the Dealer Manager or its
relationship with the Purchaser in connection with the Offer, without the
Dealer Manager's prior written consent or, as the case may be, the Dealer
Manager's prior written consent to the form of such reference, which
consent, in each case, shall not be unreasonably withheld or
delayed.
|
4.5
|
The
Purchaser agrees that neither the Dealer Manager nor any of its affiliates
shall have any liability to the Purchaser or any other person for any Loss
arising from any act or omission on the part of any broker or dealer in
securities (a "Dealer"), bank or trust
company, or any other person in connection with the Offer, and neither the
Dealer Manager nor any of its affiliates shall be liable for any Loss
arising from its own acts or omissions in performing its obligations as
dealer manager under this Agreement or otherwise in connection with the
Offer, except to the extent that any such Loss is finally judicially
determined to have resulted from the bad faith, gross negligence or wilful
misconduct of or by the Dealer Manager or its affiliates, as
applicable.
|
4.6
|
No
Dealer, bank or trust company soliciting or obtaining tenders of Notes in
the Offer is to be deemed to be acting as the Dealer Manager's agent or
the agent of the Purchaser or any of its affiliates, and the Dealer
Manager, as dealer manager in connection with the Offer, is not to be
deemed the agent of any Dealer, bank or trust company or the agent or
fiduciary of the Purchaser or any of its affiliates, equity holders,
creditors or of any other person. In acting in accordance with
the terms of this Agreement, the Dealer Manager shall not be acting, and
shall not be deemed for any purpose to act, as a partner or joint venturer
of or a member of a syndicate or group with the Purchaser or any of its
affiliates in connection with the Offer, any purchase of the Notes or
otherwise, and neither the Purchaser nor its affiliates shall be deemed to
act as agent of the Dealer Manager. The Purchaser shall have
sole authority for the acceptance or rejection of any and all tenders of
Notes in the Offer.
|
5.
|
COMPENSATION
|
5.1
|
Fee: The Purchaser will
pay to the Dealer Manager in respect of the services provided by the
Dealer Manager hereunder (i) a fixed fee of €200,000,
plus (ii) if the aggregate principal amount of the Notes purchased
pursuant to the Offer (the “Accepted Principal Amount”) exceeds €30,000,000, a fee
equal to 0.5% multiplied by the difference between the Accepted Principal
Amount and €30,000,000, which shall in aggregate be due and payable on the
Settlement Date.
|
5.2
|
General Expenses:
Whether or not Notes are offered for sale by holders or accepted by the
Purchaser, the Purchaser shall pay or cause to be paid to the Dealer
Manager:
|
|
5.2.1
|
all
expenses reasonably incurred in the preparation, printing, mailing and
publishing of the Offer to Purchase, any Additional Materials, this
Agreement and any other materials and information relating to the
Offer;
|
|
5.2.2
|
all
advertising charges reasonably incurred in connection with the
Offer;
|
|
5.2.3
|
all
costs reasonably incurred in the publication of notices and other
communications with holders reasonably necessary in connection with the
Offer; and
|
|
5.2.4
|
all
other expenses reasonably incurred by the Dealer Manager in connection
with their acting as Dealer Manager including, without limitation, their
reasonable out of pocket expenses and fees and disbursements of their
legal counsel(s), plus value added tax (“VAT”), if any, and all
other costs and expenses incidental to the performance of their
obligations hereunder and in connection with the Offer, including those
related to marketing conducted in connection
therewith.
|
5.3
|
Purchaser’s Expenses:
The Purchaser shall be responsible for all of their own fees, expenses and
other costs incurred in connection with the Offer including, without
limitation, its own legal fees, the tender agent fees, any accounting and
auditors’ fees and expenses and any of the items referred to in Clause
5.2.
|
5.4
|
Payment: All payments
under this Agreement shall be made in accordance with the payment
instructions of the Dealer Manager on the due date for payment or within
30 calendar days of the invoice, as the case may be. All amounts payable
under this Agreement are exclusive of VAT, sales and any similar taxes
which may be payable on those payments, which will be invoiced to, or
otherwise payable by, the Purchaser. All payments under this Agreement
shall be made in full without set-off, condition, restriction,
counterclaim, deduction or
withholding.
|
6.
|
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
|
The
Purchaser hereby represents, warrants and agrees with the Dealer Manager, on
each of the date of this Agreement, the Launch Date (if other than the date
hereof), the Settlement Date and each day falling between the Launch Date and
the Settlement Date, as follows:
|
6.1.1
|
the
Purchaser and each of its subsidiaries have been duly organized and are
validly existing and, where applicable, in good standing under the laws of
their respective jurisdictions of organization, are duly qualified to do
business and, where applicable, are in good standing in each jurisdiction
in which their respective ownership or lease of property or the conduct of
their respective businesses requires such qualification, and have all
power and authority necessary to own or hold their respective properties
and to conduct the businesses in which they are engaged, except where the
failure to be so qualified or have such power or authority would not,
individually or in the aggregate, have a material adverse effect on the
business, properties, financial position, results of operations,
shareholders’ equity, cashflow or prospects of the Purchaser and its
subsidiaries taken as a whole, or on the performance by the Purchaser and
its subsidiaries of its obligations under the Agreements (a “Material Adverse
Effect”);
|
|
6.1.2
|
assuming
the Offer is made as contemplated to exclude persons in the United States
and the use of any US jurisdictional means and that the US securities laws
do not apply, the Purchaser is able lawfully to make and complete the
Offer and to execute and perform its obligations under the
Agreements;
|
|
6.1.3
|
the
Purchaser has full right, power and authority to execute and deliver the
Agreements and any other agreement or instrument entered into with respect
to the Offer and to perform its obligations hereunder and thereunder; and
all action (corporate or other) required to be taken for the due and
proper authorization, execution and delivery of each of such Agreements or
other agreements or instruments and the consummation of the transactions
contemplated thereby has been duly and validly taken; and the Agreements
constitute legal, valid and binding obligations of the Purchaser,
enforceable in accordance with their respective terms subject to all
applicable insolvency laws and other laws affecting the rights of
creditors generally, and subject, as to enforceability, (i) to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (ii) with respect to the
enforceability of a judgment whether there is a treaty in force relating
to the mutual recognition of foreign
judgments;
|
|
6.1.4
|
the
authorization, execution, delivery and performance by the Purchaser of
each of the Agreements and compliance by the Purchaser with the terms
thereof and the consummation of the transactions contemplated by the
Agreements will not (i) conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Purchaser or any of its subsidiaries
pursuant to, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Purchaser or any of its
subsidiaries is a party or by which the Purchaser or any of its
subsidiaries is bound or to which any of the property or assets of the
Purchaser or any of its subsidiaries is subject, (ii) result in any
violation of the provisions of the charter or by-laws or similar
organizational documents of the Purchaser or any of its subsidiaries or
(iii) result in the violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or
regulatory authority;
|
|
6.1.5
|
no
consent, approval, authorization, order, filing, registration or
qualification of or with any court or arbitrator or governmental or
regulatory authority is required for the execution, delivery and
performance by the Purchaser of the Agreements and compliance by the
Purchaser with the terms thereof and the consummation of the transactions
contemplated by the Agreements;
|
|
6.1.6
|
the
Offer Materials contain all the information required to comply with
applicable laws and regulations, and comply with the requirements of the
laws and regulations of those jurisdictions in which (i) they are or will
be distributed by or on behalf of the Purchaser or (ii) solicitations of
tenders are or will be made pursuant to the Offer, and otherwise comply in
all material respects with such laws and
regulations;
|
|
6.1.7
|
the
Offer Materials, as of their respective dates and as of the expiration and
the closing of the Offer, did not and will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that
the Purchaser makes no representation or warranty with respect to any
statements or omissions made in reliance upon and in conformity with
information relating to the Dealer Manager furnished to the Purchaser in
writing by such Dealer Manager expressly for use in the Offer
Materials. No order or decree preventing the use of the Offer
Materials, or any order asserting that the transactions contemplated by
this Agreement are subject to the registration requirements of the
Securities Act or any other securities laws has been issued, and no
proceeding for that purpose has commenced or is pending or, to the
knowledge of the Purchaser, is
contemplated;
|
|
6.1.8
|
the
Purchaser has not paid or agreed to pay to any person any compensation for
the solicitation of tenders from Noteholders pursuant to the Offer (except
as contemplated by the Agreements);
|
|
6.1.9
|
neither
the Purchaser nor any of its subsidiaries has taken, directly or
indirectly, any action designed to or that could reasonably be expected to
cause or result in any stabilization or manipulation of the price of any
security to facilitate the Offer or encourage Noteholders to tender Notes
in the Offer;
|
|
6.1.10
|
except
as otherwise disclosed in the Offer Materials, no stamp, issuance,
transfer or other similar taxes or duties are payable by or on behalf of
the Initial Purchasers in Bermuda, The Netherlands Antilles and The
Netherlands, the United Kingdom or the United States or any political
subdivision or taxing authority thereof or therein in connection with the
execution and delivery of the Agreements and the consummation of the
transactions contemplated hereby and
thereby;
|
|
6.1.11
|
except
as described in the Offer Materials or available in the Purchaser’s public
filings, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending to which the Purchaser or any of its
subsidiaries is or may be a party or to which any property of the
Purchaser or any of its subsidiaries is or may be the subject that,
individually or in the aggregate, if determined adversely to the Purchaser
or any of its subsidiaries, could reasonably be expected to have a
Material Adverse Effect; and to the best knowledge of the Purchaser no
such investigations, actions, suits or proceedings are threatened by any
governmental or regulatory authority or by
others;
|
|
6.1.12
|
no
event has occurred or circumstances arisen that might (whether or not with
the giving of notice and/or the passage of time and/or the fulfilment of
any other requirement) constitute an event of default as described under
the terms and conditions of the
Notes.
|
|
6.1.13
|
none
of the Purchaser and any of its affiliates or subsidiaries is aware of any
fact or circumstance (other than as disclosed in the Offer Materials or
available in the Purchaser’s public filings) which, if made public, might
reasonably be expected to have a significant effect on the price or value
of the Notes or any other securities issued by the Purchaser;
and
|
|
6.1.14
|
provided
the Purchaser consummates its offering of at least €150,000,000
principal amount of the Purchaser’s Senior Notes due 2016, the
Purchaser has or will have available funds, and is or will be authorised
to use such funds under applicable law, to pay the full Purchase Price for
the Notes that it may become committed to purchase pursuant to the Offer,
and all related fees and expenses.
|
7.
|
AGREEMENTS
|
7.1
|
The
Purchaser agrees with the Dealer Manager as
follows:
|
|
7.1.1
|
it
will, if necessary, produce such supplements to the Offer Materials as may
be required to ensure the accuracy of the representations, warranties and
agreements of the Purchaser under this
Agreement;
|
|
7.1.2
|
it
will furnish to the Dealer Manager, without charge, during the period
beginning on the Launch Date and continuing to, and including, the
Settlement Date, the Offer Materials (excluding any information
incorporated by reference therein that is available on or prior to the
Launch Date) and any amendments and supplements
thereto;
|
|
7.1.3
|
it
will not amend or supplement the Offer Materials without giving prior
notice to and consulting with the Dealer
Manager;
|
|
7.1.4
|
it
will not extend, re-open, amend, waive any condition of or terminate the
Offer without giving prior notice to and consulting with the Dealer
Manager;
|
|
7.1.5
|
it
will not directly or indirectly solicit any person in the United States to
tender into the offer or knowingly accept tenders from any person in or
from the United States;
|
|
7.1.6
|
it
will, as any such taxes or duties become due and payable, bear and pay all
stamp, registration and other taxes and duties (other than income tax)
which may be payable upon or in connection with the Offer or the execution
of the Agreements; and
|
|
7.1.7
|
it
will advise the Dealer Manager promptly of (i) the occurrence of any
event, or the discovery of any fact, the occurrence or existence of which
would require the making of any change to any Offer Materials then being
used or would cause any representation or warranty contained in this
Agreement to be untrue or inaccurate in any material respect, (ii) the
issuance by any governmental or regulatory authority of any comment or
order or the taking of any other action concerning the Offer and (iii) any
material developments in connection with the Offer, including, without
limitation, the commencement of any legal proceedings concerning the
Offer.
|
7.2
|
The
Purchaser acknowledges and agrees that the Dealer Manager (a) has been
retained solely to provide the services set forth in this Agreement; (b)
may perform the services contemplated by this Agreement in conjunction
with its affiliates, and any of its affiliates performing services under
this Agreement shall be entitled to the benefits and be subject to the
terms of this Agreement; (c) is a securities firm engaged in securities
trading and brokerage activities and providing investment banking and
financial advisory services and, in the ordinary course of business, the
Dealer Manager and its affiliates may at any time hold long or short
positions, and may trade or otherwise effect transactions, for its own
account or the accounts of customers, in debt or equity securities of the
Purchaser, its affiliates or other entities that may be involved in the
transactions contemplated by this Agreement; and (d) is not an adviser as
to legal, tax, accounting or regulatory matters in any jurisdiction and
the Purchaser must consult with its own advisers concerning such matters
and will be responsible for making its own independent investigation and
appraisal of the transactions contemplated by this Agreement, and the
Dealer Manager shall have no responsibility or liability to the Purchaser
with respect to any advice given as to legal, tax, accounting or
regulatory matters.
|
7.3
|
The
Purchaser acknowledges and agrees
that:
|
|
7.3.1
|
the
Dealer Manager has been retained pursuant to this Agreement solely to act
as dealer manager in connection with the Offer and that no fiduciary,
advisory or agency relationship exists between the Dealer Manager and the
Purchaser or has been created in respect of this Agreement, irrespective
of whether the Dealer Manager has advised or is advising the Purchaser on
other matters; and
|
|
7.3.2
|
the
Purchaser has been advised that the Dealer Manager and its affiliates are
engaged in a broad range of transactions which may involve interests that
differ from those of the Purchaser and that the Dealer Manager has no
obligation pursuant to this Agreement to disclose such interests and
transactions to the Purchaser by virtue of any fiduciary, advisory or
agency relationship.
|
8.
|
CONDITIONS TO THE OBLIGATIONS
OF THE DEALER MANAGER AND TERMINATION
RIGHTS
|
8.1
|
The
obligations of the Dealer Manager under this Agreement are at all times
subject to the conditions that:
|
|
8.1.1
|
all
consents and approvals of any court, government department or other
regulatory body required by the Purchaser for or in connection with (i)
the execution of, or performance of the Purchaser's obligations under, the
Agreements and (ii) the making and completion of the Offer (including,
without limitation, the distribution of the Offer Materials), shall have
been obtained and be unconditional and remain in full force and
effect;
|
|
8.1.2
|
before
the Settlement Date, the Purchaser shall have delivered to the Dealer
Manager such further information, certificates and documents as the Dealer
Manager may reasonably request relating to the Offer or otherwise relating
to the matters contemplated hereby;
and
|
|
8.1.3
|
the
Purchaser shall have procured the delivery to the Dealer Manager on the
date of this Agreement the conditions precedent documentation contained in
items 1 and 2 of Schedule 1 to this
Agreement.
|
|
8.2
|
|
8.2.1
|
If:
|
|
(a)
|
any
of the conditions specified in this Clause 8 is not satisfied when and as
provided in this Agreement; or
|
|
(b)
|
any
of the representations, warranties and agreements given or made by the
Purchaser set forth in this Agreement is untrue or is breached in any
respect,
|
the
Dealer Manager may (after prior consultation with the Purchaser, where
practicable) at, or any time prior to, the Settlement Date give a termination
notice to the Purchaser.
8.3
|
On
the giving of a termination notice under Clause 8.2 at any time on or
before the Settlement Date, this Agreement shall terminate (subject to
Clause 11) and the Dealer Manager or the Purchaser shall be discharged
from performance of its obligations under this Agreement, provided, however, that the Dealer Manager
shall receive all fees and expenses payable under this Agreement which
have accrued to the date of such termination notice (provided, in the case
of the fees set out in Clause 5.1, the Tender Offer has
settled).
|
8.4
|
In
addition to the termination rights provided under Clause 8.2, this
Agreement shall terminate (subject to Clause 11) (i) on the Settlement
Date, (ii) upon written notice by the Purchaser to the Dealer Manager to
terminate this Agreement at any time in the event they decide not to
proceed with the Offer or (iii) upon the expiration, termination or
withdrawal of the Offer and in each case, the Purchaser and the Dealer
Manager shall each be discharged from performance of its obligations under
this Agreement,
provided, however, that the Dealer Manager
shall receive all fees and expenses payable under this Agreement which
have accrued to the date of such termination notice (provided,
in the case of the fees set out in Clause 5.1, the Offer has
settled).
|
9.
|
INDEMNIFICATION
|
9.1
|
The
Purchaser undertakes and agrees with the Dealer Manager that, if the
Dealer Manager or any Relevant Party incurs any Loss arising out of, in
connection with or based upon:
|
|
9.1.1
|
any
actual or alleged breach by the Purchaser of any of the terms of, or any
of the representations, warranties and/or undertakings given pursuant to,
this Agreement; or
|
|
9.1.2
|
any
untrue or misleading (or allegedly untrue or misleading) statement by the
Purchaser in, or any omission (or alleged omission) from, the Offer to
Purchase,
|
9.2
|
the
Purchaser shall pay to the Dealer Manager on demand an amount equal to
such Loss. The Dealer Manager shall not settle any claim against it
involving the incurrence of any such Loss without the prior written
consent of the Purchaser (such consent not to be unreasonably withheld or
delayed). The Dealer Manager shall not have any duty or other
obligation, whether as fiduciary or trustee, for any Relevant Party or
otherwise, to recover such payment or to account to any other person for
any amounts paid to it under this Clause
9.2.
|
10.
|
NON-DISCLOSURE
|
No Party
to this Agreement shall disclose the provisions of this Agreement to any other
person (except to its legal, financial or other professional advisers) without
the prior written consent of the other Party, unless a Party reasonably
determines that the failure to make such disclosure would violate applicable law
or regulations or is required to be disclosed by applicable law or regulations
(including pursuant to any securities laws or listing requirements) in which
case that Party shall promptly notify the other Party of the proposed disclosure
and the reasons for such disclosure.
11.
|
SURVIVAL
|
11.1
|
The
respective agreements, representations, warranties and indemnities of the
Purchaser and the Dealer Manager set forth in or made pursuant to this
Agreement shall continue in full force and effect and shall survive any
termination of this Agreement and the completion of the Offer, regardless
of any investigation made by or on behalf of the Purchaser or the Dealer
Manager or any of them.
|
11.2
|
Clauses
5, 6, and 9 shall survive any termination of this
Agreement.
|
12.
|
NOTICES
|
Any
notice or notification in any form to be given to the Purchaser or the Dealer
Manager may be delivered in person or sent by facsimile addressed
to:
If to the
Purchaser:
c/o CME
Development Corporation
00
Xxxxxxx Xxxxxx
Xxxxxx
X0X
0XX
Xxxxxx
Xxxxxxx
|
Facsimile
number:
|
x00
(0)000 000 0000
|
|
Email:
|
Xxx.Xxxx@xxx-xxx.xxx
|
|
Attention
of:
|
Xxxxxx
Xxxx, Esq.
|
with a
copy to:
Xxxxxx
Xxxxxx Rosenman LLP
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Xxxxxx
Xxxxxx
Attention
of: Xxxxxx X. Xxxx, Esq.
If to the Dealer
Manager:
Deutsche
Bank AG, London Branch
Winchester
House
1 Great
Xxxxxxxxxx Xxxxxx
Xxxxxx
XX0X
0XX
Xxxxxx
Xxxxxxx
|
Email:
|
xxxxxxxxx.xxxxxxxxxx@xx.xxx
|
|
Telephone:
|
x00
000 000 0000
|
|
Attention
of:
|
Liability
Management Group
|
Any such
notice shall be in English and shall take effect, in the case of delivery, at
the time of delivery and, in the case of facsimile, at the time of
despatch.
13.
|
ENTIRE
AGREEMENT
|
This
Agreement contains the entire understanding of the Parties with respect to the
Dealer Manager acting as dealer manager for the Offer and supersedes all
previous agreements between the Parties relating to these transactions and may
not be modified or amended except by an agreement in writing executed by the
Parties. Any provision of this Agreement may be waived if such waiver
is in writing and is signed by the Party against whom the waiver is to be
effective.
14.
|
SUCCESSORS
|
This
Agreement will inure to the benefit of and be binding upon the Parties and their
respective successors and no other person will have any right or obligation
hereunder.
15.
|
ASSIGNMENT
|
Neither
the Dealer Manager nor the Purchaser may assign its rights or transfer its
obligations under this Agreement, in whole or in part, without the prior written
consent of the other Party. In the absence of such written consent,
any purported assignment or transfer shall be void.
16.
|
GOVERNING
LAW
|
This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts to be performed wholly within the
State of New York. Each of the parties hereto waives any right to
trial by jury in any action, claim, suit or proceeding with respect to the
Dealer Manager’s engagement hereunder. The parties hereto consent to
the jurisdiction of the courts of England and Wales located in London in any
action or proceeding related to this Agreement (except that a judgment obtained
in such courts may be enforced in any jurisdiction) and the Purchaser hereby
appoints CME Development Corporation, with the notice details specified in
Clause 12 hereof, as its agent for service of process hereunder. The provisions
of this Clause 16 are intended to be effective upon the execution of this
Agreement without any further action by the parties hereto and the introduction
of a true copy of this Agreement into evidence shall be conclusive and final
evidence as to such matters.
17.
|
PARTIAL
INVALIDITY
|
If, at
any time, any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.
18.
|
MISCELLANEOUS
|
18.1
|
Time
shall be of the essence of this
Agreement.
|
18.2
|
The
heading to each clause is included for convenience only and shall not
affect the construction of this
Agreement.
|
18.3
|
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
may enter into this Agreement by executing a
counterpart.
|
18.4
|
For
the purposes of this Agreement, the Dealer Manager shall treat the
Purchaser as a professional client.
|
AS WITNESS the hands of the
duly authorised representatives of the parties to this Agreement the day and
year first before written.
SIGNATURES
By:
/s/ Xxxxxxx
Xxxxx
|
||
DEUTSCHE
BANK AG, LONDON BRANCH
|
||
By:
/s/ Xxxxxxx
Xxxx
|
/s/ Xxxxxxxx
Xxxxxxxx
|