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Exh. 1.1
CENTRAL EUROPEAN MEDIA ENTERPRISES LTD.
UNDERWRITING AGREEMENT
$100,000,000 Aggregate Principal Amount of
% Notes due 2004
DM100,000,000 Aggregate Principal Amount of
% Notes due 2004
August , 1997
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August ,1997
Xxxxxx Xxxxxxx & Co.
Incorporated
Xxxxxx Xxxxxxx Bank XX
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxxx Wertheim & Co. Inc.
c/o Morgan Xxxxxxx & Co.
Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Central European Media Enterprises Ltd., a Bermuda corporation
(the "Company"), proposes to issue and sell to the several Underwriters named in
Schedule I hereto (the "Underwriters") $100,000,000 principal amount of its %
Notes due 2004 (the "Dollar Securities") to be issued pursuant to the provisions
of an Indenture dated as of August , 1997 (the "Dollar Indenture") between the
Company and Bankers Trust Company, as Trustee (the "Trustee") and DM100,000,000
principal amount of its % Notes due 2004 (the "DM Securities", and together
with the Dollar Securities, the "Securities" issued pursuant to the provisions
of an Indenture dated as of August , 1997 (the "DM Indenture", and together
with the Dollar Indenture, the "Indentures") between the Company and the
Trustee. Xxxxxx Xxxxxxx Bank AG is acting as lead manager with respect to the
issue and sale by the Company of DM Securities outside the United States.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus,
relating to the Securities. The registration statement as amended at the time it
becomes effective, including the exhibits thereto, the documents incorporated by
reference therein and the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Original Registration Statement;" any registration statement
filed pursuant to Rule 462(b) under the Securities Act is hereinafter referred
to as the "Rule 462(b) Registration Statement," the Original Registration
Statement and any Rule 462(b) Registration Statement are hereinafter referred to
collectively as the "Registration Statement;" the prospectus in the form first
used to confirm sales of Securities, including the documents incorporated by
reference therein, is hereinafter referred to as the "Prospectus."
I.
The Company represents and warrants to each of the
Underwriters that:
(a) The Original Registration Statement has become effective
and, if the Company has elected to rely upon Rule 462(b) under the
Securities Act, the Rule 462(b) Registration Statement shall have
become effective no later than the earlier of (i) 10:00 p.m. New York
City time on the date hereof and (ii) the time confirmations
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are sent or given, as specified by Rule 462(b) under the Securities
Act; no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending
before or threatened by the Commission.
(b) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the documents incorporated by
reference in the Registration Statement and the Prospectus at the time
they were or hereafter are filed with the Commission complied and will
comply in all material respects with the requirements of the Securities
Exchange Act of 1934, as amended and the applicable rules and
regulations of the Commission thereunder, (iii) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, except that the representations and warranties
set forth in this paragraph I(b) do not apply (A) to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein or
(B) to that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the
Trustee.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole. The term "subsidiary" as used
herein shall mean any person, firm, partnership or corporation ("Legal
Entity") in which the Company has a direct or indirect equity or voting
interest.
(d) Each subsidiary of the Company has been duly incorporated
or organized, is validly existing as a corporation or other Legal
Entity in good standing under the laws of the jurisdiction of its
incorporation or organization, has the corporate power and authority to
own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
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(e) The Company and its subsidiaries have good and marketable
title to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects, except such as are described or
contemplated by the Prospectus, or such as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries, and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such real property and buildings by the Company and its
subsidiaries.
(f) Each license pursuant to which the Company and its
subsidiaries conducts its broadcast operations ("License") has been
duly and validly issued to the Legal Entity specified in the Prospectus
as holding such License pursuant to the licensing procedures of the
jurisdictions granting the same, and each such License is in full force
and effect. To the best of the Company's knowledge, except as disclosed
in the Prospectus, the television property to which each such License
pertains is being operated substantially in accordance with the terms
of the applicable License and the relevant legislation of the issuing
jurisdiction. To the best of the Company's knowledge, (i) no
application, action or proceeding is pending for the modification of
any License except as disclosed in the Prospectus, (ii) no application,
action or proceeding is pending or threatened that may result in the
revocation, modification, nonrenewal or suspension of any License, or
the imposition of any administrative sanction, and (iii) the issuance
and sale of the Securities hereunder will not lead to the revocation,
modification, nonrenewal or suspension of any License, or the
imposition of any administrative sanction.
(g) The Company and each of its subsidiaries own or have
licensed to them, or otherwise have the benefit or use under the
authority of the owners or licensees thereof, all material patents,
patent rights, inventions, trademarks, service marks, tradenames and
copyrights (in each case, registered or not) which the Company
reasonably believes are necessary for the conduct of the business of
the Company and each of its subsidiaries substantially in the manner in
which it is being conducted, except in each case as otherwise described
in the Prospectus or where the failure to own or hold such a license or
otherwise have the benefit or use of such rights would not reasonably
be expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and, except as described in the
Prospectus, there are no unresolved actions asserting, nor is the
Company aware of any unresolved actions asserting, nor is the Company
aware of any unresolved assertions that the Company or any of its
subsidiaries infringed the patents, patent rights, inventions,
trademarks, service marks, tradenames or copyrights or others, other
than such actions or assertions which, if determined adversely to the
Company any of its subsidiaries, would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
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In addition, the Company and its subsidiaries have rights
under appropriate binding agreements to broadcast the programming they
currently broadcast and have scheduled to broadcast. To the best of the
Company's knowledge, broadcasting of those programs by the Company and
its subsidiaries pursuant to the rights granted under such agreements
does not and will not violate any copyright or other laws relating to
the use of another party's intellectual property.
(h) This Agreement has been duly authorized, executed and
delivered by the Company.
(i) Each of the Dollar Indenture and the DM Indenture has been
duly qualified under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(j) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indentures and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indentures, and will be valid and binding obligations
of the Company, enforceable in accordance with their terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(k) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indentures and the Securities will not contravene any provision of
applicable law or the Memorandum of Association or bye-laws or similar
corporate governance document of the Company or any of its subsidiaries
or any agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indentures or the Securities, except such as may be required by the
Bermuda Monetary Authority and securities or Blue Sky laws of the
various states in connection with the offer and sale of the Securities.
(l) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
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(m) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(n) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 or Rule 462 under the Securities
Act, complied when so filed in all material respects with the
Securities Act and the rules and regulations of the Commission
thereunder.
(o) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged and in the jurisdictions in which
they conduct such business; and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not materially and adversely
affect the condition (financial or otherwise), business prospects, net
worth or results of operations of the Company and its subsidiaries
taken as a whole, except as described in or contemplated by the
Prospectus.
(p) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
(q) Neither the Company and its subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or any of its
subsidiaries has made any payment of funds of the Company or any
subsidiary or received or retained any funds in violation of any law,
rule or regulation, which payment, receipt or retention of funds is of
a character required to be disclosed in the Prospectus;
(r) The consolidated financial statements of the Company and
the financial statements of IA TV Beteiligungsgesellschaft GmbH & Co.
Betriebs KG ("XXXX"); Xxxxxxx Xxxx & Fernsehen GmbH ("FFF") Sachsen
Funk und Fernsehen GmbH ("SFF"), Slovenska Televizna Spalocnost s.r.o.
("STS") and TVN Sp.zo.o ("TVN") and any other unconsolidated associated
company in which the Company has a financial interest (the
"Unconsolidated Associated Companies") included in the Registration
Statement (or incorporated by reference therein) and the Prospectus
present fairly the financial condition, the results of operations and
the cash flows of the Company (including its predecessor), its
consolidated Subsidiaries and the Unconsolidated Associated Companies
as of the dates and for the periods therein specified in conformity
with generally accepted accounting principles consistently applied
throughout the periods involved, except as otherwise stated therein;
and the
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other financial and statistical information and data set forth in the
Registration Statement and the Prospectus is accurately presented and,
to the extent such information and data is derived from the financial
statements and books and records of the Company and its consolidated
Subsidiaries, and the Unconsolidated Associated Companies, no other
financial statements are required to be included in the Registration
Statement (or incorporated by reference therein) and the Prospectus.
Each of the Underwriters represents, warrants, and agrees with
respect to offers and sales outside the United States that:
(a) it understands that no action has been or will be taken in
any jurisdiction by the Company that would permit a public offering of
the Securities, or possession or distribution of the Prospectus or any
other offering or publicity material relating to the Securities, in any
country or jurisdiction other than the United States where action for
that purpose is required;
(b) it has complied with the Securities Sales Prospectus Act
of the Federal Republic of Germany (Wertpapier-Verkaufsprospekt) of
December 13, 1990, as amended, and the restrictions applying to the
offer and distribution of Euro-securities and it has not engaged in
public advertisements (offentliche Werbung) in Germany with respect to
the Securities.
II.
The Company hereby agrees to sell to the several Underwriters,
and the Underwriters, upon the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter stated, agree,
severally and not jointly, to purchase from the Company the respective principal
amounts of Securities set forth in Schedule I hereto opposite their names at %
of their principal amount (the "purchase price") plus accrued interest, if any,
from the Closing Date (as defined below) to the date of payment and delivery.
III.
The Company is advised by you that the Underwriters propose to
make a public offering of their respective portions of the Securities as soon
after the Original Registration Statement and this Agreement have become
effective as in your judgment is advisable. The Company is further advised by
you that the Securities are to be offered to the public initially at % of their
principal amount (the "public offering price") plus accrued interest, if any,
and to certain dealers selected by you at a price that represents a concession
not in excess of % of their principal amount under the public offering price,
and that any Underwriter may allow, and such dealers may reallow, a concession,
not in excess of % of their principal amount, to any Underwriter or to certain
other dealers.
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IV.
Payment for the Securities shall be made by wire transfer or
other immediately available funds at a closing to be held at the offices of
Shearman & Sterling, 000 Xxxxxxxxxxx, Xxxxxx, Xxxxxxx at 10:00 A.M., New York
City time, on August , 1997, or at such other time on the same or such other
date, not later than August , 1997, as shall be designated in writing by you.
The time and date of such payment are hereinafter referred to as the "Closing
Date."
Payment for the Securities shall be made against delivery to
you for the respective accounts of the several Underwriters of the Securities
registered in such names and in such denominations as you shall request in
writing not later than two full business days prior to the date of delivery,
with any transfer taxes payable in connection with the transfer of the
Securities to the Underwriters duly paid.
V.
The obligations of the Company and the several obligations of
the Underwriters hereunder are subject to the condition that the Registration
Statement shall have become effective not later than the date hereof.
The several obligations of the Underwriters hereunder are
subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date,
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a
whole, from that set forth in the Registration Statement,
that, in your judgment, is material and adverse and that makes
it, in your judgment, impracticable to market the Securities
on the terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and
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warranties of the Company contained in this Agreement are true and
correct as of the Closing Date and that the Company has complied with
all of the agreements in all material respects and satisfied all of the
conditions on its part to be performed or satisfied on or before the
Closing Date.
(c) No stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for such
purpose shall be pending before, or to the knowledge of the Company or
the Underwriters, threatened by the Commission.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) You shall have received on the Closing Date an opinion of
Xxxxxxx, Xxxx & Xxxxxxx, Bermuda counsel for the Company, dated the
Closing Date in form and substance satisfactory to you, to the effect
that:
(i) each of the Company and International Media
Services Ltd. has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(ii) this Agreement has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance
with its terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) the availability of
equitable remedies may be limited by equitable principles of
general applicability;
(iii) each of the Dollar Indenture and the DM
Indenture has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as
(a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (b) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles
of general applicability;
(iv) the Securities have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the Indentures and delivered to and paid for by
the Underwriters in accordance with the terms of
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this Agreement, will be entitled to the benefits of the
Indentures and will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as
(a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (b) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles
of general applicability;
(v) the execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement, the Securities and the Indentures will not
contravene any provision of applicable law or the Memorandum
of Association or bye-laws of the Company or, to the best of
such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary, and no consent, approval,
authorization or order of or qualification with any
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, the
Securities and the Indentures, except such as may be required
by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities;
(vi) the statements (1) in the Prospectus under the
captions "Risk Factors -- Enforcement of Civil Liabilities and
Judgments," "Certain Tax Considerations -- Bermuda" and
"Management -- Executive Officers and Directors" and (2) in
the Registration Statement under Item 15, in each case insofar
as such statements constitute summaries of the matters of
Bermuda law and regulation or legal conclusions with respect
thereto, documents and proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the
matters referred to therein;
(vii) after due inquiry, such counsel does not know
of any legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described or of any
statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not
described or filed as required;
(viii) no stamp or other issuance or transfer taxes
or duties and no capital gains, income, withholding or other
taxes are payable by or on behalf of the Underwriters to
Bermuda or to any political subdivision or taxing authority
thereof or therein in connection with the sale and delivery by
the Underwriters of the Securities to the initial purchasers
thereof; and
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(ix) assuming the validity of such actions under
applicable federal and state laws in the United States, under
the laws of Bermuda relating to submission to jurisdiction,
the Company has validly and irrevocably submitted to the
jurisdiction of any U.S. Federal or state court located in the
Borough of Manhattan, the City of New York with regard to any
suit, action or proceeding with respect to this Agreement and
for actions brought under U.S. state or federal securities
laws, and the service of process effected in the manner set
forth in this Agreement will be effective, insofar as Bermuda
law is concerned, to confer valid personal jurisdiction over
the Company.
(e) You shall have received on the Closing Date an opinion of
Rosenman & Colin LLP, U.S. counsel for the Company, in the form and
substance satisfactory to you, to the effect that:
(i) each of the subsidiaries listed on Schedule I to
such counsel's opinion (which Schedule shall set forth all of
the United States subsidiaries) (collectively, the "United
States subsidiaries") has been duly incorporated or duly
organized as a partnership or other Legal Entity, is validly
existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, with the
power under such laws to own its property and conduct its
business as described in the Prospectus;
(ii) the statements under the captions "Description
of Notes," "Certain Tax Considerations -- United States
Federal Income Taxation," and "Underwriting" (except for the
last paragraph thereof) in the Prospectus, insofar as such
statements constitute a summary of legal matters, documents or
proceedings referred to therein, are accurate in all material
respects and fairly summarize the matters referred to therein;
(iii) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement, the Securities and the Indentures will not
contravene any provision of applicable U.S. law or, to the
best of such counsel's knowledge, any agreement governed by
U.S. law or other instrument binding upon the Company or any
of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any U.S.
governmental body, agency or court having jurisdiction over
the Company or any subsidiary;
(iv) assuming due authorization, execution and
delivery by the parties thereto, each of the Dollar Indenture
and the DM Indenture is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as
(a) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (b) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles
of general applicability;
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(v) assuming due authorization, execution and
delivery by the parties thereto, this Agreement is a valid and
binding agreement of the Company enforceable in accordance
with its terms, including but not limited to the choice of law
provision contained in Section IX hereof;
(vi) the Securities, when executed and authenticated
in accordance with the provisions of the Indentures and
delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement, will be entitled to the
benefits of the Indentures and will be valid and binding
obligations of the Company, enforceable in accordance with
their terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of acceleration and
the availability of equitable remedies may be limited by
equitable principles of general applicability;
(vii) the execution, delivery and performance of this
Agreement, the Securities and the Indentures by the Company,
compliance by the Company with all the provisions hereof and
the consummation of the transactions contemplated hereby and
thereby (including, without limitation, the issuance and sales
of the Securities) will not require any consent, approval
authorization or order of or qualification with any U.S.
court, regulatory body, administrative agency or other
governmental body (except such as may be required under the
Securities Act or other securities or Blue Sky laws), or
violate or conflict with any U.S. laws, administrative
regulations or rulings or court decrees applicable to the
Company or any of the subsidiaries or their respective
properties, except where failure to receive any such consent,
approval, authorization or any such conflict, breach or
default would not have a material adverse effect on the
business and financial condition of the Company and the
subsidiaries taken as a whole;
(viii) the Registration Statement has become
effective, any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) under the
Securities Act, has been made in the manner and within the
time period required by Rule 424 under the Securities Act, and
no stop order suspending its effectiveness has been issued and
no proceedings for the purpose are, to the knowledge of such
counsel, pending before or contemplated by the Commission;
(ix) each of the Dollar Indenture and the DM
Indenture has been duly qualified under the Trust Indenture
Act;
(x) the Company is not an "investment company" or
entity "controlled" by an "investment company" as such terms
are defined in the Investment Act of 1940, as amended;
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(xi) such counsel has read all material contracts (or
English translations thereof) referred to in the Registration
Statement and the Prospectus and such contracts are fairly
summarized as disclosed therein, conform in all material
respects to the descriptions thereof contained therein, and,
to the extent required by the Securities Act and the rules
thereunder, are filed or incorporated by reference as exhibits
thereto, and such counsel does not know of any contracts or
other documents required to be so summarized or disclosed, or
so filed or incorporated by reference, which have not been so
summarized or disclosed, or so filed or incorporated by
reference and there are no U.S. statutes or regulations or
pending or threatened legal governmental proceedings required
to be disclosed in the Prospectus which have not been
disclosed as required, and to the best of such counsel's
knowledge, each of such contracts is in full force and effect;
(xii) such counsel does not know of any litigation or
any U.S. governmental proceeding pending of threatened against
the Company or any subsidiary which would affect the subject
matter of this Agreement, the Securities or the Indentures, or
is required to be disclosed in the Prospectus which is not
disclosed and correctly summarized therein; and
(xiii) such counsel (1) is of the opinion that the
Registration Statement and Prospectus (except for financial
statements and schedules included therein as to which such
counsel need not express any opinion) comply as to form in all
material respects with the Securities Act and the rules and
regulations of the Commission thereunder, (2) no facts have
come to the attention of such counsel which lead such counsel
to believe that (except for financial statements and schedules
as to which such counsel need not express any belief and
except for that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to) the
Registration Statement and the prospectus included therein at
the time the Registration Statement became effective contained
any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading and (3) no facts
have come to the attention of such counsel which lead such
counsel to believe that (except for financial statements and
schedules as to which such counsel need not express any
belief) the Prospectus as of the Closing Date contains any
untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
(f) You shall have received on the Closing Date an opinion of
Xxxxx & XxXxxxxx, special Netherlands counsel to the Company, in the
form and substance satisfactory to you, to the effect that:
(i) each of CME Media Enterprises B.V. ("CME BV"),
Central European Media Enterprises N.V., CME Czech Republic
B.V., CME Slovenia B.V., CME Hungary B.V., CME Poland B.V.,
CME Xxxxxxx X.X., xxx
00
00
XXX Xxxxxxxx B.V. (collectively, the "Dutch and Antilles
Subsidiaries") have each been duly incorporated or duly
organized as a partnership or other Legal Entity under the
laws of the jurisdiction of its incorporation or organization;
(ii) all of the issued shares or other interests in
the capital of the Dutch and Netherlands Antilles Subsidiaries
which have been issued or granted to the Company have been
validly created, allotted and issued, and the Company is the
registered holder of the percentage of the issued share
capital or other interest of the Dutch and Netherlands
Antilles Subsidiaries; and
(iii) such counsel does not know of any litigation or
any governmental proceeding pending of threatened in the
Kingdom of the Netherlands or the Netherlands Antilles against
the Company or any subsidiary which would affect the subject
matter of this Agreement, the Securities or the Indentures or
is required to be disclosed in the Prospectus which is not
disclosed and correctly summarized therein.
(g) You shall have received on the Closing Date an opinion of
Radvan & Co., Czech counsel to the Company, in the form and substance
satisfactory to you, to the effect that:
(i) each of Ceska Nevavisla Televizai Spolecnost
s.r.o. ("Nova TV"), CET 21 spol s.r.o. ("CET 21"), Kaskol
s.r.o. ("Kaskol") and Radio Alfa a.s. ("Radio Alfa", and
together with Nova TV, CET 21 and Kaskol the "Czech
Subsidiaries") has been duly incorporated or duly organized as
a partnership or other Legal Entity under the laws of the
Czech Republic;
(ii) each of the Czech Subsidiaries has the corporate
power and authority required to carry on its business as it is
stated to be carried on in the Prospectus and to own and lease
its properties;
(iii) all of the issued shares or other interests in
the capital of each of the Czech Subsidiaries which have been
issued or granted to CME BV have been validly created,
allotted and issued, and the Company is the direct or indirect
registered holder of the percentage of the issued share
capital or other interest of such Czech Subsidiary disclosed
in the Prospectus;
(iv) the Memorandum of Association and Investment
Agreement dated May 4, 1993 as amended, by and between Central
European Development Corporation Management Services GmbH,
Ceska Sporitelna, a.s. ("CS") and CET 21, the Loan Agreement
dated August 1, 1996 and the Transfer Agreement dated July 17,
1996 relating to the transfer of 22% of the Participation
Interest in Nova TV between CME BV and CS, the Loan Agreement,
Transfer Agreements and Trusteeship Agreement between CME BV
and Xx. Xxxxxxx regarding the transfer of Participation
Interests in CET 21 and in Nova TV, each dated August 1, 1996;
and all other agreements
15
14
relating to the rights and obligations of the Company or any
subsidiary with respect to Nova TV (collectively, the "Nova
Constituent Documents") are valid and binding agreements and
are enforceable in accordance with their terms;
(v) the Consultancy Agreement dated February 9, 1995,
by and between CME BV and Radio Alfa; the Loan Agreement dated
February 9, 1995 between CME BV and Radio Alfa, as
supplemented by the several Supplemental Loan Agreements; the
Share Purchase Agreement dated November 15, 1996 between CME
BV and IDOS Praha, Spol s.r.o.; the Share Purchase Agreement
dated December 3, 1996 between CME BV and Releas a.s.; the
Share Purchase Agreement dated December 12, 1996 between CME
BV and CS and all other agreements relating to the rights and
obligations of the Company or any subsidiary with respect to
Radio Alfa created (collectively, the "Radio Alfa Documents,"
and together with the Nova Constituent Documents, the "Czech
Constituent Documents") are valid and binding agreements and
are enforceable in accordance with their terms;
(vi) the execution and delivery by the Company of,
and the performance by the Company of its obligations under
this Agreement, the Securities and the Indentures (a) will not
require any consent, approval, authorization or other order of
any Czech court, regulatory body or other Czech governmental
body to be obtained and (b) will not violate any Czech law or
regulation;
(vii) there are no winding up petitions against any
of the Czech Subsidiaries;
(viii) each of CET 21 and Kaskol has been issued with
the Licenses required by it under applicable Czech law for the
purposes of carrying on broadcast operations as described in
the Prospectus (the "Czech Licenses"); there are no orders
outstanding which have been made against any such Czech
Subsidiary; no application, action or proceeding is or will be
pending for the modification of the Czech Licenses; no
application, action or proceeding is or will be pending or
threatened that may result in the revocation, modification,
nonrenewal or suspension of the Czech Licenses, or the
imposition of any administrative sanction; the issuance and
sale of the Securities hereunder will not lead to the
revocation, modification, nonrenewal or suspension of the
Czech Licenses, or the imposition of any administrative
sanction; and such counsel are not aware of any breaches of
the terms of the Czech Licenses (except as disclosed in the
Prospectus) which would lead any regulatory agency to take any
action under their respective powers in relation thereto;
(ix) the statements in the Prospectus under the
captions "The Company", "Business -- Operating Environment --
Czech Republic," and "Business -- Operations in the Czech
Republic: Nova TV" and
00
00
"Xxxxxxxx--Xxxxxxxxxx xx xxx Xxxxx Xxxxxxxx: Radio Alfa,"
insofar as such statements constitute a summary of Czech legal
matters referred to therein and insofar as they purport to
describe the legal effect of the Czech Constituent Documents,
fairly describe such legal matters and such legal effect; and
(x) such counsel does not know of any litigation or
any governmental proceeding pending of threatened in the Czech
Republic against the Company or any Subsidiary which would
affect the subject matter of this Agreement, the Securities or
the Indentures or is required to be disclosed in the
Prospectus which is not disclosed and correctly summarized
therein.
(h) You shall have received on the Closing Date an opinion of
Xxxxx Xxxxxxxxx, special Romanian counsel to the Company, in the form
and substance satisfactory to you, to the effect that:
(i) each of Media Pro International s.a. ("MPI"), PRO
TV, SRL and Unimedia SRL (collectively, the "Romanian
Subsidiaries") has been duly incorporated or duly organized as
a partnership or other Legal Entity under the laws of Romania;
(ii) each of the Romanian Subsidiaries and Media Pro
SRL has the corporate power and authority required to carry on
its business as it is stated to be carried on in the
Prospectus and to own and lease its properties;
(iii) all of the issued shares or other interests in
the capital of each of the Romanian Subsidiaries which have
been issued or granted to CME BV and its subsidiaries have
been validly created, allotted and issued, and the Company is
the direct or indirect registered holder of the percentage of
the issued share capital or other interest of such Romanian
Subsidiary disclosed in the Prospectus;
(iv) the Cooperation Agreement among CME BV, Xxxxxx
Xxxxx and Xxx Xxxxxx dated August 4, 1995 (the "Romanian
Agreement"); the Exclusive Operating Agreement among MPI,
Media Pro SRL and PRO TV SLR dated March 12, 1996; the
Assignment of Shares Agreement dated September 25, 1996
between, inter alia, MPI and CME B.V.; and all other
agreements relating to the rights and obligations of the
Company or its subsidiaries with respect to PRO TV
(collectively, the "Romanian Constituent Documents") are valid
and binding agreements and are enforceable in accordance with
their terms;
(v) the execution and delivery by the Company of, and
the performance by the Company of its obligations under this
Agreement, the Securities and the Indentures (a) will not
require any consent, approval, authorization or other order of
any Romanian court, regulatory body or other
17
16
Romanian governmental body to be obtained and (b) will not
violate any Romanian law or regulation;
(vi) there are no winding up petitions against any of
the Romanian Subsidiaries;
(vii) the statements in the Prospectus under the
captions "The Company," "Business -- Operating Environment --
Romania," and "Business -- Operations in Romania" insofar as
such statements constitute a summary of Romanian legal matters
referred to therein and insofar as they purport to describe
the legal effect of the Romanian Constituent Documents, fairly
describe such legal matters and such legal effect;
(viii) each of the PRO TV SRL and Media Pro SRL has
been issued with the Licenses required by it under applicable
Romanian law for the purposes of carrying on broadcast
operations as described in the Prospectus (the "Romanian
Licenses"); there are no orders outstanding which have been
made against any such Romanian Subsidiary; no application,
action or proceeding is or will be pending for the
modification of the Romanian Licenses; no application, action
or proceeding is or will be pending or threatened that may
result in the revocation, modification, nonrenewal or
suspension of the Romanian Licenses, or the imposition of any
administrative sanction; the issuance and sale of the
Securities hereunder will not lead to the revocation,
modification, nonrenewal or suspension of the Romanian
Licenses, or the imposition of any administrative sanction;
and such counsel are not aware of any breaches of the terms of
the Romanian Licenses (except as disclosed in the Prospectus)
which would lead any regulatory agency to take any action
under their respective powers in relation thereto; and
(ix) such counsel does not know of any litigation or
any governmental proceeding pending of threatened in Romania
against the Company or any subsidiary which would affect the
subject matter of this Agreement, the Securities or the
Indentures or is required to be disclosed in the Prospectus
which is not disclosed and correctly summarized therein.
(i) You shall have received on the Closing Date an opinion of
Jadek & Pensa, special Slovenian counsel to the Company, in the form
and substance satisfactory to you, to the effect that:
(i) each of MMTV d.o.o. Ljubljana ("MMTV"), Tele 59
d.o.o. Maribor ("Tele 59") and Prodvkcija Plus d.o.o. ("Pro
Plus") (collectively, the "Slovenian Subsidiaries") has been
duly incorporated or duly organized as a partnership or other
Legal Entity under the laws of Slovenia;
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17
(ii) each of the Slovenian Subsidiaries has the
corporate power and authority required to carry on its
business as it is stated to be carried on in the Prospectus
and to own and lease its properties;
(iii) all of the issued shares or other interests in
the capital of each of the Slovenian Subsidiaries which have
been issued or granted to the Company have been validly
created, allotted and issued, and the Company is the
registered holder of the percentage of the issued share
capital or other interest of such Slovenian Subsidiary
disclosed in the Prospectus;
(iv) the Partnership Agreement among CME BV, MMTV 1
d.o.o. Ljubljana and Tele 59 dated February 10, 1995, the
Share Purchase Agreement among CME BV, Xxxxxx Xxxxxx, Xxxxxxx
00 Xxxxxxxx dated April 8, 1995, the Partnership Agreement
between CME BV and Tele 59 dated December 15, 1995; the
Partnership Agreement between CME BV and Xxxxxx Xxxxxx dated
December 15, 1995; the contract on the establishment of MMTC
between CME BV, MMTV, Xxxxxx Xxxxxx and Maijari Meglic dated
March 27, 1997 and all other agreements relating to the rights
and obligations of the Company or its subsidiaries in respect
of the POP TV network, (collectively, the "Slovenian
Constituent Documents") are valid and binding agreements and
are enforceable in accordance with their terms;
(v) the execution and delivery by the Company of, and
the performance by the Company of its obligations under this
Agreement, the Securities and the Indentures (a) will not
require any consent, approval, authorization or other order of
any Slovenian court, regulatory body or other Slovenian
governmental body to be obtained and (b) will not violate any
Slovenian law or regulation;
(vi) there are no winding up petitions against any of
the Slovenian Subsidiaries;
(vii) the statements in the Prospectus under the
captions "The Company," "Business -- Operating Environment --
Slovenia," and "Business -- Operations in Slovenia" insofar as
such statements constitute a summary of Slovenian legal
matters referred to therein and insofar as they purport to
describe the legal effect of the Slovenian Constituent
Documents, fairly describe such legal matters and such legal
effect;
(viii) each of Tele 59 and MMTV has been issued with
the Licenses required by it under applicable Slovenian law for
the purposes of carrying on broadcast operations as described
in the Prospectus (the "Slovenian Licenses"); there are no
orders outstanding which have been made against any such
Slovenian Subsidiary; no application, action or proceeding is
or will be pending for the modification of the Slovenian
Licenses; no application, action or proceeding is or will be
pending or threatened that may result in the
19
18
revocation, modification, nonrenewal or suspension of the
Slovenian Licenses, or the imposition of any administrative
sanction; the issuance and sale of the Securities hereunder
will not lead to the revocation, modification, nonrenewal or
suspension of the Slovenian Licenses, or the imposition of any
administrative sanction; and such counsel are not aware of any
breaches of the terms of the Slovenian Licenses, (except as
disclosed in the Prospectus) which would lead any regulatory
agency to take any action under their respective powers in
relation thereto; and
(ix) such counsel does not know of any litigation or
any governmental proceeding pending of threatened in Slovenia
against the Company or any subsidiary which would affect the
subject matter of this Agreement, the Securities or the
Indentures or is required to be disclosed in the Prospectus
which is not disclosed and correctly summarized therein.
(j) You shall have received on the Closing Date an opinion of
Radvan & Co., special Slovak Republic counsel to the Company, in the
form and substance satisfactory to you, to the effect that:
(i) each of STS and Markiza-Slovakia s.r.o.
("Markiza", and together with STS, the "Slovak Subsidiaries")
has been duly incorporated or duly organized as a partnership
or other Legal Entity under the laws of the Slovak Republic;
(ii) each of the Slovak Subsidiaries has the
corporate power and authority required to carry on its
business as it is stated to be carried on in the Prospectus
and to own and lease its properties;
(iii) all of the issued shares or other interests in
the capital of each of the Slovak Subsidiaries which have been
issued or granted to the Company have been validly created,
allotted and issued, and the Company is the registered holder
of the percentage of the issued share capital or other
interest of such Slovak Subsidiary disclosed in the
Prospectus;
(iv) the Participants' Agreement between CME BV and
Markiza dated September 28, 1995, the Memorandum and Articles
of Association of STS, the agreement between CME BV and
Markiza dated October 1, 1995 regarding CME BV's
contributions; the Mandate Agreement between Markiza and STS
dated July , 1996 and all other agreements relating to the
rights and obligations of the Company, or its subsidiaries in
respect of STS (collectively, the "Slovak Constituent
Documents") are valid and binding agreements and are
enforceable in accordance with their terms;
(v) the execution and delivery by the Company of, and
the performance by the Company of its obligations under this
Agreement, the Securities and the Indentures (a) will not
require any consent, approval,
20
19
authorization or other order of any Slovak court, regulatory
body or other Slovak governmental body to be obtained and (b)
will not violate any Slovak law or regulation;
(vi) there are no winding up petitions against any of
the Slovak Subsidiaries;
(vii) the statements in the Prospectus under the
captions "The Company," "Business -- Operating Environment --
Slovak Republic," and "Business -- Operations in Slovak
Republic" insofar as such statements constitute a summary of
Slovak legal matters referred to therein and insofar as they
purport to describe the legal effect of the Slovak Constituent
Documents, fairly describe such legal matters and such legal
effect;
(viii) Markiza has been issued with the License
required by it under applicable Slovak law for the purposes of
carrying on broadcast operations as described in the
Prospectus (the "Slovak License") and STS has acquired from
Markiza the exclusive right to use the License; there are no
orders outstanding which have been made against STS or
Markiza; no application, action or proceeding is or will be
pending for the modification of the Slovak License; no
application, action or proceeding is or will be pending or
threatened that may result in the revocation, modification,
nonrenewal or suspension of the Slovak License, or the
imposition of any administrative sanction; the issuance and
sale of the Securities hereunder will not lead to the
revocation, modification, nonrenewal or suspension of the
Slovak License, or the imposition of any administrative
sanction; and such counsel are not aware of any breaches of
the terms of the Slovak License (except as disclosed in the
Prospectus) which would lead any regulatory body to take any
action under their respective powers in relation thereto; and
(ix) such counsel does not know of any litigation or
any governmental proceeding pending of threatened in the
Slovak Republic against the Company or any subsidiary which
would affect the subject matter of this Agreement, the
Securities or the Indentures or is required to be disclosed in
the Prospectus which is not disclosed and correctly summarized
therein.
(k) You shall have received on the Closing Date an opinion of
Xxxxx Xxxxx and Partners, special Ukraine counsel to the Company, in
the form and substance satisfactory to you, to the effect that:
(i) each of Intermedia Ukraine, Prioritet Ukraine and
Broadcast Company "Studio 1+1" (collectively, the "Ukraine
Subsidiaries") has been duly incorporated or duly organized as
a partnership or other Legal Entity under the laws of the
Ukraine;
21
20
(ii) each of the Ukraine Subsidiaries has the
corporate power and authority required to carry on its
business as it is stated to be carried on in the Prospectus
and to own and lease its properties;
(iii) all of the issued shares or other interests in
the capital of each of the Ukraine Subsidiaries which have
been issued or granted to the Company have been validly
created, allotted and issued, and the Company is the
registered holder of the percentage of the issued share
capital or other interest of each such Ukraine Subsidiary
disclosed in the Prospectus;
(iv) the Acquisitions, Cooperation and Investment
Agreement among, inter alia, CME BV, Innova Film GmbH and
Studio 1+1 dated September 30, 1996 (the "Cooperation
Agreement"); the Amended and Restated Foundation Agreement of
Studio 1+1 between Enterprise Intermedia and Alexander
Rodnianskii dated January 23, 1997, the Deed dated October 25,
1996 among CME BV, Xxxxx Xxxxxxxxx, Xxxxxxxxx Rodnianskii and
Innova Film GmbH, the contract for International Cooperation
dated between Studio 1+1 and Innova Film GmbH, the Marketing,
Advertising and Sales Agreement dated January 23, 1997 between
Innova Film GmbH and International Media Services Ltd.
("IMS"), the By-laws of IMS; the Shareholders' Agreement dated
January 24, 1997 among International Teleservices Ltd., CME
Ukraine GmbH and Xxxxx Xxxxxxxxx; and all other agreements
relating to the rights and obligations of the Company or its
subsidiaries in respect of Studio 1+1 (collectively, the
"Ukraine Constituent Documents") are valid and binding
agreements and are enforceable in accordance with their terms;
(v) the execution and delivery by the Company of, and
the performance by the Company of its obligations under this
Agreement, the Securities and the Indentures (a) will not
require any consent, approval, authorization or other order of
any Ukraine court, regulatory body or other Ukraine
governmental body to be obtained and (b) will not violate any
Ukraine law or regulation;
(vi) there are no winding up petitions against any of
the Ukraine Subsidiaries;
(vii) the statements in the Prospectus under the
captions "The Company," "Business -- Operating Environment --
Ukraine," and "Business -- Operations in Ukraine" insofar as
such statements constitute a summary of Ukraine legal matters
referred to therein and insofar as they purport to describe
the legal effect of the Ukraine Constituent Documents, fairly
describe such legal matters and such legal effect;
(viii) Broadcast Company "Studio 1+1" has been issued
with the Licenses required by it under applicable Ukraine law
for the purposes of carrying on television broadcast
operations as described in the Prospectus (the
22
21
"Ukraine Licenses"); there are no orders outstanding which
have been made against any such Ukraine Subsidiary; no
application, action or proceeding is or will be pending for
the modification of the Ukraine Licenses; no application,
action or proceeding is or will be pending or threatened that
may result in the revocation, modification, nonrenewal or
suspension of Ukraine Licenses, or the imposition of any
administrative sanction; the issuance and sale of the
Securities hereunder will not lead to the revocation,
modification, nonrenewal or suspension of the Ukraine
Licenses, or the imposition of any administrative sanction;
and such counsel are not aware of any breaches of the terms of
the Ukraine Licenses (except as disclosed in the Registration
Statement) which would lead any regulatory agency to take any
action under their respective powers in relation thereto; and
(ix) such counsel does not know of any litigation or
any governmental proceeding pending or threatened in the
Ukraine against the Company or any subsidiary which would
affect the subject matter of this Agreement, the Securities or
the Indentures or is required to be disclosed in the
Prospectus which is not disclosed and correctly summarized
therein.
(l) You shall have received on the Closing Date an opinion of
Altheimer & Xxxx, special Polish counsel to the Company, in the form
and substance satisfactory to you, to the effect that:
(i) each of Federacja sp. z.o.o. ("Federation"), TVN
and Telewizja Wisla Sp. z.o.o. ("TV Wisla"), (collectively,
the "Polish Subsidiaries") has been duly incorporated or duly
organized as a partnership or other Legal Entity under the
laws of Poland;
(ii) each of the Polish Subsidiaries has the
corporate power and authority required to carry on its
business as it is stated to be carried on in the Prospectus
and to own and lease its properties;
(iii) all of the issued shares or other interests in
the capital of each of the Polish Subsidiaries which have been
issued or granted to the Company have been validly created,
allotted and issued, and the Company is the direct or indirect
registered holder of the percentage of the issued share
capital or other interest of each such Polish Subsidiary
disclosed in the Prospectus;
(iv) the Shareholders Agreement and the Stock
Purchase Agreement between International Trading and
Investments Holdings S.A. ("ITI Holdings") and CME BV dated
May 25, 1995; the Share Sale Agreement between TVN and Realbud
Sp.z.o.o. dated October 30, 1996; the Shareholders Agreement
between TVN and Ambresa Ltd. dated December 30, 1996; the
Investment Agreement and Shareholders Agreement dated August
1, 1997 between ITI Holdings and CME BV relating to the
formation of Federation and all other agreements relating to
the rights and obligations of the Company or any
23
22
subsidiary with respect to TV Wisla or Federation
(collectively, the "Polish Constituent Documents") are valid
and binding agreements and are enforceable in accordance with
their terms;
(v) the execution and delivery by the Company of, and
the performance by the Company of its obligations under this
Agreement, the Securities and the Indentures (a) will not
require any consent, approval, authorization or other order of
any Polish court, regulatory body or other Polish governmental
body to be obtained and (b) will not violate any Polish law or
regulation;
(vi) there are no winding up petitions against any of
the Polish Subsidiaries;
(vii) the statements in the Prospectus under the
captions "The Company," "Business -- Operating Environment --
Poland," and "Business -- Operations in Poland," insofar as
such statements constitute a summary of Polish legal matters
referred to therein and insofar as they purport to describe
the legal effect of the Polish Constituent Documents, fairly
describe such legal matters and such legal effect;
(viii) each of TVN and TV Wisla have been issued with
the Licenses required by it under applicable Polish law for
the purposes of carrying on broadcast operations as described
in the Prospectus (the "Polish Licenses"); there are no orders
outstanding which have been made against any such Polish
Subsidiary; no application, action or proceeding is or will be
pending for the modification of the Polish Licenses; no
application, action or proceeding is or will be pending or
threatened that may result in the revocation, modification,
nonrenewal or suspension of the Polish Licenses, or the
imposition of any administrative sanction; the issuance and
sale of the Securities hereunder will not lead to the
revocation, modification, nonrenewal or suspension of the
Polish Licenses, or the imposition of any administrative
sanction; and such counsel are not aware of any breaches of
the terms of the Polish Licenses (except as disclosed in the
Prospectus) which would lead any regulatory agency to take any
action under their respective powers in relation thereto; and
(ix) such counsel does not know of any litigation or
any governmental proceeding pending of threatened in Poland
against the Company or any subsidiary which would affect the
subject matter of this Agreement, the Securities or the
Indentures or is required to be disclosed in the Prospectus
which is not disclosed and correctly summarized therein.
(m) You shall have received on the Closing Date an opinion of
Doser Ameretter Xxxxx, special German counsel for the Company, in the
form and substance satisfactory to you, to the effect that:
24
23
(i) each of the subsidiaries listed on Schedule I to
such counsel's opinion (which Schedule shall set forth all of
the German subsidiaries) (collectively, the "German
Subsidiaries") has been duly incorporated or duly organized as
a partnership or other Legal Entity under German law;
(ii) each of the German Subsidiaries, other than XXXX
TV, has the corporate power and authority required to carry on
its business as it is stated to be carried on in the
Prospectus and to own and lease its properties;
(iii) all of the issued shares or other interest in
the capital of each of the German Subsidiaries which have been
issued or granted to CME BV have been validly created,
allotted and issued, and the Company is the direct or indirect
registered holder of the percentage of the issued share
capital or other interest of such German Subsidiaries
disclosed in the Prospectus;
(iv) the Agreement on the Establishment of a Silent
Partnership dated April 19, 1994, as amended, between Xx.
Xxxxxxx Xxxxxxx, CEDC Management Services GmbH & Co. Media
Enterprises KG and FFF (the "Nuremberg Partnership
Agreement"); the Agreement of September 1995, by and between
CME Medien Beteiligungen GmbH & Co. Media Enterprises KG and
SFF (the "Leipzig and Dresden Agreement") and all other
agreements relating to the rights and obligations of the
Company or the German Subsidiaries created under the Nuremberg
Partnership Agreement and the Leipzig and Dresden Agreement
(collectively, the "German Constituent Documents") are valid
and binding agreements and are enforceable in accordance with
their terms;
(v) the execution and delivery by the Company of, and
the performance by the Company of its obligations under this
Agreement, the Securities and the Indentures (a) will not
require any consent, approval, authorization or other order of
any German court, regulatory body or other German governmental
body to be obtained and (b) will not violate any German law or
regulation;
(vi) except as disclosed in the Prospectus, there are
no winding up petitions against any of the German
Subsidiaries;
(vii) each of the German Subsidiaries have been
issued with the Licenses required by them under the applicable
laws of each of the German states granting such Licenses for
the purposes of carrying on their broadcast operations as
described in the Prospectus (the "German Licenses"); there are
no orders outstanding which have been made against any such
German Subsidiaries; except for the License held by XXXX TV,
no application, action or proceeding is or will be pending for
the modification of the German Licenses; no application,
action or proceeding is or will be pending or threatened that
may result in the revocation, modification, nonrenewal or
25
24
suspension of the German Licenses, or the imposition of any
administrative sanction; the issuance and sale of the
Securities hereunder will not lead to the revocation,
modification, nonrenewal or suspension of the German Licenses,
or the imposition of any administrative sanction; and such
counsel are not aware of any breaches of the terms of the
German Licenses (except as disclosed in the Prospectus) which
would lead any regulatory agency to take any action under
their respective powers in relation thereto;
(viii) the statements in the Prospectus under the
captions "The Company," "Business -- Operating Environment --
Germany," and "Business -- Operations in Germany: the German
Stations" insofar as such statements constitute a summary of
German legal matters referred to therein and insofar as they
purport to describe the legal effect of the German Constituent
Documents, fairly describe such legal matters and such legal
effect; and
(ix) such counsel does not know of any litigation or
any governmental proceeding pending of threatened in Germany
against the Company or any Subsidiary which would affect the
subject matter of this Agreement, the Securities or the
Indentures, or is required to be disclosed in the Prospectus
which is not disclosed and correctly summarized therein.
(n) You shall have received on the Closing Date an opinion of
Shearman & Sterling, counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in subparagraphs (ii), (iv),
(v), (vi) and (xiii) of paragraph (e) above,
The opinions of counsel described in paragraphs (d), (e), (f),
(g), (h), (i), (j), (k) and (l) above shall be rendered to you at the
request of the Company and shall so state therein.
(o) You shall have received, on each of the date hereof and
the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to you, from
Xxxxxx Xxxxxxxx & Co., independent public accountants for the Company,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
VI.
In further consideration of the agreements of the Underwriters
herein contained, the Company covenants as follows:
(a) To furnish to you, without charge, four signed copies of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto)
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and, during the period mentioned in paragraph (c) below, as many copies
of the Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object.
(c) If, during such period after the first date of the public
offering of the Securities as in the opinion of your counsel the
Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist
as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of your counsel, it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to
the Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Securities may have been sold by you
on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with (i) the determination of the eligibility of the
Securities for investment under the laws of such jurisdictions as you
may designate and (ii) any review of the offering of the Securities by
the National Association of Securities Dealers, Inc.
(e) To use its best efforts to have the Securities admitted to
the official list of the Luxembourg Stock Exchange.
(f) If the Company elects to rely on Rule 462(b) under the
Securities Act, the Company shall file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) under the
Securities Act no later than the earlier of (i) 10:00 p.m. New York
City time on the date hereof and (ii) the time confirmations are sent
or given, as specified by Rule 462(b)(2) under the Securities Act, and
shall pay the applicable fees in accordance with Rule 111 under the
Securities Act.
(g) To make generally available to the Company's security
holders and to you not later than 60 days after the end of the
twelve-month period beginning at the end of the Company's fiscal
quarter during which the effective date of the Original
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Registration Statement occurs, an earnings statement of the Company
covering such twelve-month period that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of
the Commission thereunder.
(h) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company
substantially similar to the Securities (other than the Securities),
without your prior written consent.
(i) Whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, the Company agrees to pay,
or reimburse if paid by or on behalf of you, all costs and expenses
incident to the public offering of the Securities and the performance
of the obligations of the Company under this Agreement including those
relating to: (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the issuance of the
Securities, the preparation, printing, filing and distribution of the
Registration Statement including financial statements and all exhibits,
each preliminary prospectus, the Prospectus, all amendments and
supplements to the Registration Statement and the Prospectus, and the
printing or duplication, filing and distribution of this Agreement
(including all document production charges); (ii) the preparation and
delivery of any certificates for the Securities to the Underwriters;
(iii) all expenses in connection with the registration or qualification
of the Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions as you shall request, including the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such registration and qualification and the
preparation, printing and duplication, distribution and shipment of
preliminary and supplementary Blue Sky memoranda; (iv) the furnishing
(including costs of shipping and mailing) to you and to the
Underwriters of copies of each preliminary prospectus, the Prospectus
and all amendments or supplements to the Prospectus, and of the several
documents required by this paragraph to be so furnished, as may be
reasonably requested for use in connection with the offering and sale
of the Securities by the Underwriters or by dealers to whom Securities
may be sold; (v) the filing fees and expenses (including the reasonable
fees and disbursements of counsel to the Underwriters), if any,
incurred with respect to any filing with the National Association of
Securities Dealers, Inc. in connection with its review of the terms of
the public offering of the Securities; (vi) all fees and expenses in
connection with obtaining admission of the Securities to the official
list of the Luxembourg Stock Exchange; (vii) any expenses incurred by
the Company in connection with a "road show" presentation to potential
investors; and (viii) all transfer taxes, if any, with respect to the
sale and delivery of the Securities by the Company to the Underwriters.
VII.
The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls such Underwriter within the
meaning of either Section 15
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of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except (i)
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein and (ii) such indemnity
with respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such loss, claim, damage or
liability purchased the Securities that are the subject thereof if such person
did not receive a copy of the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), excluding
documents incorporated therein by reference, at or prior to the confirmation of
the sale of such Securities to such person in any case where such delivery is
required under the Securities Act and any untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in any
preliminary prospectus was corrected in the Prospectus.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between
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them. It is understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by
Xxxxxx Xxxxxxx & Co. Incorporated, in the case of parties indemnified pursuant
to the second preceding paragraph, and by the Company, in the case of parties
indemnified pursuant to the first preceding paragraph. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first or second
paragraph of this Article VII is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Securities shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the
Securities (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate public offering price of the Securities. The relative fault of the
Company on the one hand and of the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates
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to information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Article VII are several in proportion to the
respective principal amounts of Securities they have purchased hereunder, and
not joint.
The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Article VII were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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. The remedies provided for in this
Article VII are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Article VII and the representations and warranties of the Company contained in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
VIII.
This Agreement shall be subject to termination by notice given
by you to the Company, if (a) after the execution and delivery of this Agreement
and prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange; (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities shall have been declared in the
Czech Republic or in New York by either Federal or New York State authorities or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event singly or together with
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any other such event makes it, in your judgment, impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus.
IX.
This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Original Registration Statement by the
Commission.
If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase Securities that it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the principal amount of
Securities set forth opposite their respective names in Schedule I bears to the
principal amount of Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on such date; provided that in no event shall
the principal amount of Securities that any Underwriter has agreed to purchase
pursuant to Article II be increased pursuant to this Article IX by an amount in
excess of one-ninth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased
on such date, and arrangements satisfactory to you and the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
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This Agreement may be signed in two or more counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
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This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York. The Company has
appointed Corporation Services Company, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
as its agent for service of process in any suit, action or proceeding with
respect to this Agreement and for actions brought under U.S. state or federal
securities laws brought in any federal or state court located in the City of New
York and the Company agrees to the jurisdiction of any such court.
Very truly yours,
CENTRAL EUROPEAN MEDIA
ENTERPRISES LTD.
By______________________________________
Name:
Title:
Accepted, August , 1997
Xxxxxx Xxxxxxx & Co.
Incorporated
Xxxxxx Xxxxxxx Bank XX
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxxx Wertheim & Co. Incorporated
Acting severally on behalf
of themselves and the
several Underwriters
named herein.
By Xxxxxx Xxxxxxx & Co.
Incorporated
By_______________________
Name:
Title:
34
SCHEDULE I
Principal Amount Principal Amount
of Dollar Securities of DM Securities
Underwriter To Be Purchased To Be Purchased
----------- --------------- ---------------
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Xxxxxxx Bank XX
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated
Xxxxxxxx Wertheim & Co. Inc.
_________________ ________________
Total . . . . . . . . . $ DM
================ ================
