form8k.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date
of Report (date of earliest event reported): March 22, 2009
CENTRAL
EUROPEAN MEDIA ENTERPRISES LTD.
(Exact
name of registrant as specified in its charter)
BERMUDA
|
0-24796
|
98-0438382
|
(State
or other jurisdiction of incorporation and organisation)
|
(Commission
File Number)
|
(IRS
Employer Identification No.)
|
|
|
|
Clarendon
House, Church Street, Hamilton
|
|
HM
11 Bermuda
|
(Address
of principal executive offices)
|
|
(Zip
Code)
|
Registrant's
telephone number, including area code: (441) 296-1431
Not
applicable
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
Item
1.01 Entry
into a Material Definitive Agreement
On March
22, 2009, Central European Media Enterprises Ltd. (the “Company”) entered
into a subscription agreement with TW Media Holdings LLC (“TWMH”) (the “Subscription
Agreement”).
Subscription
Agreement
Pursuant
to the Subscription Agreement, the Company has agreed to issue to TWMH 14.5
million Class A Shares at a price of $12.00 per share and 4.5 million Class B
Shares at a price of $15.00 per share, for an aggregate offering price of $241.5
million. Class A Shares of the Company carry one vote per share and
Class B Shares carry ten votes per share. The completion of this
issuance of these Class A Shares and Class B Shares (collectively, the “TW Shares”) is
subject to a vote of the shareholders of the Company and other customary closing
conditions.
The
Subscription Agreement contemplates additional agreements to be entered into at
or prior to the closing of the issuance of the TW Shares (the “Closing Date”): a
registration rights agreement between the Company and TWMH (the “Registration Rights
Agreement”); an Irrevocable Voting Deed and Corporate Representative
Appointment among TWMH, RSL Savannah LLC (“RSL Savannah”),
Ronald S. Lauder and the Company (the “Voting Agreement”);
an investor rights agreement among TWMH, RSL Savannah, Mr. Lauder, RSL
Investments LLC, RSL Investments Corporation and the Company (“Investor Rights
Agreement”); and a indemnification letter agreement between Mr. Lauder
and the Company (“Indemnity
Agreement”).
Prior to
the Closing Date, one person designated by TWMH will be appointed to the Board
of Directors of the Company and a second person designated by TWMH shall be
granted non-voting observer rights at meetings of the Board of Directors of the
Company.
Voting
Agreement
Pursuant
to the Voting Agreement, TWMH will appoint, with the effect from the Closing
Date, RSL Savannah, a company wholly owned by Mr. Lauder, as the holder of the
voting rights to the TW Shares, with the power to appoint proxies or a corporate
representative to vote the TW Shares. TWMH will also grant RSL Savannah the
right to vote any other Class A Shares or Class B Shares acquired by TWMH during
the term of the Voting Agreement. Notwithstanding the foregoing, TWMH
reserves the right to vote 7.25 million Class A Shares and 2.25 million Class B
Shares to be issued pursuant to the Subscription Agreement in any transaction
that would result in a change of control of the Company.
Except as
provided in the next sentence, the Voting Agreement will expire on the later of
the four year anniversary of the Closing Date and the date on which there are no
more Class B Shares outstanding. The Voting Agreement will not terminate prior
to (a) the latest maturity date (or early repayment date) of (i) the Euro 245
million 8.25% senior notes due 2012, (ii) $475 million 3.5% convertible notes
due 2013, (iii) the Euro 150 million senior floating rate notes due 2014, or
(iv) the Euro 150 million revolving loan with European Bank for Reconstruction
and Development (“EBRD”) that matures
in 2012 or, if earlier, (b) the date on which the ownership of the TW Shares by
TWMH and any permitted transferees (the “TW Investors”) would
not result in certain specified defaults under either the senior notes, the
convertible notes or the EBRD loan. The Company’s Class B Shares
automatically convert to Class A Shares when the number of Class B Shares is
less than 10% of the total outstanding shares of the Company. (Class B Shares
are convertible into Class A Shares on a one-for-one basis for no additional
consideration.)
On
termination of the Voting Agreement, 2.25 million Class B Shares issued to TWMH
pursuant to the Subscription Agreement and any Class B Shares acquired by the TW
Investors pursuant to the Investor Rights Agreement shall automatically convert
to Class A Shares.
Investor
Rights Agreement
The
Investor Rights Agreement will establish certain restrictions on transfer by the
TW Investors of the TW Shares and by Mr. Lauder on the Class A Shares and Class
B Shares beneficially owned by Mr. Lauder, RSL Savannah, RSL Investments LLC,
RSL Investments Corporation and their permitted transferees (collectively, the
“RSL
Investors”), will require the conversion of certain Class B Shares owned
by the TW Investors under specified circumstances, will establish a standstill
in respect of ownership of equity securities of the Company by the TW Investors
and will regulate the conduct of the TW Investors and the RSL Investors in
respect of transactions that may result in a change of control of the
Company.
Under the
Investor Rights Agreement, each of the RSL Investors and the TW Investors will
grant each other rights of first offer in respect of the transfer of Class A
Shares or Class B Shares owned by the other as well as tag along rights (other
than in respect of certain permitted transfers, transfers in connection with a
change of control and certain de minimis transfers to unaffiliated third
parties). The TW Investors shall cause any Class A Shares or Class B
Shares transferred by any RSL Investor to a TW Investor to be subject to the
Voting Agreement.
Immediately
prior to the termination of the Voting Agreement, 2.25 million Class B Shares
issued to TWMH pursuant to the Subscription Agreement and any Class B Shares
acquired by any TW Investor from an RSL Investor pursuant to the Investor Rights
Agreement shall automatically convert to Class A Shares. Following the
termination of the Voting Agreement, any Class B Shares transferred to a TW
Investor by an RSL Investor will be converted into Class A Shares prior to, and
as a condition to, such transfer.
The TW
Investors will undertake, prior to the three year anniversary of the Closing
Date, not to engage in any discussions regarding a transaction that will result
in a change of control of the Company (a “Change of Control
Transaction”) without the consent of the RSL
Investors. Thereafter until the four year anniversary of the Closing
Date, the TW Investors will inform the RSL Investors and the Company of any
discussions it enters into in respect of a Change of Control
Transaction. The RSL Investors and the Company will undertake on a
good faith basis to consult with the TW Investors in respect of discussions or
arrangements in connection with a Change of Control Transaction and to provide
the TW Investors with thirty days notice of the initiation of a sales process or
negotiations in respect of a Change of Control.
In the
event the Board of Directors of the Company will have determined to approve or
recommend to the shareholders of the Company an offer in respect of a Change of
Control Transaction (a “Takeover Proposal”)
and the TW Investors own at least 25% of the TW Shares at such time, the TW
Investors shall have the right for a period of ten days from notice of such
offer or proposal to make an alternative offer or proposal for a Change of
Control Transaction. If the alternative offer or proposal from the TW Investors
is more favorable to the Company’s shareholders from a financial point of view
than the Takeover Proposal, the Board of Directors will approve such alternate
offer, recommend to shareholders such alternate proposal and the RSL Investors
shall accept such alternate proposal; provided, that the Board of Directors
shall not be obliged to recommend such alternate proposal from the TW Investors
if it has received a subsequent Takeover Proposal that is more favorable to the
Company’s shareholders from a financial point of view than the alternate
proposal. If the TW Investors do not make an offer or proposal that is more
favorable to the Company’s shareholders from a financial point of view than the
Takeover Proposal, the TW Investors will accept such Takeover Proposal within
the time period required for such Takeover Proposal.
The TW
Investors will agree that prior to the termination of the Voting Agreement, no
TW Investor shall on its own or as part of a “group” (within the meaning of
Section 13(d)(3) of the Securities Exchange Act of 1934) acquire aggregate
voting power that exceeds 49.9% from time to time without the prior written
consent of the Board of Directors of the Company. This standstill
provision will not prevent the TW Investors from acquiring equity securities in
the Company in a transaction approved by the Board of Directors of the Company
by which the TW Investors acquire a controlling interest in the
Company.
For so
long as the TW Investors own at least 25% of the TW Shares, the Company will
covenant that it shall not, without the consent of the TW Investors, authorize
an increase in the number of Class B Shares, issue any Class B Shares, issue any
preferred shares with voting rights superior to those of the Class A Shares, or
securities convertible into the same. For so long as the RSL Investors own at
least 25% of certain equity securities owned by them as of the Closing Date, the
Company will covenant not, without the consent of RSL Savannah, to authorize an
increase in the number of Class B Shares, issue any Class B Shares, issue any
preferred shares with voting rights superior to those of the Class A Shares or
securities convertible into the same.
Subject
to certain exceptions, the Company will grant the TW Investors the right to
participate in future issuances of the shares of the Company in order to allow
the TW Investors to maintain their pro rata ownership in the
Company.
The RSL
Investors will agree to use their best efforts to vote their equity securities
in favor of election to the Board of Directors two persons designated by the TW
Investors for so long as the TW Investors own more than 50% of the TW Shares and
one person designated by the TW Investors for so long as the TW Investors own
more than 25% of the TW Shares.
Registration
Rights Agreement
Under the
Registration Rights Agreement, the TW Investors will receive the right to demand
in any consecutive twelve-month period up to two registrations of equity
securities held by them (subject to requesting a minimum amount of equity
securities to be registered), the right to request a shelf registration and
piggyback registration rights (subject to customary cutbacks).
Indemnity
Agreement
On March
22, 2009, the Company entered into an indemnity letter agreement with Mr. Lauder
and RSL Savannah (the “Indemnity
Agreement”). Under the Indemnity Agreement, the Company agrees
to indemnify Mr. Lauder and certain of his affiliates in respect of losses (as
defined in the Indemnity Agreement) related to the issuance of the TW
Shares.
The
Voting Agreement, the Investor Rights Agreement and the Registration Rights
Agreement will be entered on or prior to the Closing Date. In order
to effect the issuance of the TW Shares, the Company is required under NASDAQ
Stock Market Rules to obtain a vote of the shareholders in favor of the issuance
of the TW Shares.
Other
Agreements
From time
to time, subsidiaries of the Company enter into agreements with Warner Bros.
International Television Distribution, Inc., an affiliate of TWMH, to acquire
programming, including multi-year volume contracts with terms of up to five
years that have been entered into by the Company’s subsidiaries in the Czech
Republic, Romania, the Slovak Republic and Slovenia.
Item
3.02 Unregistered
Sale of Securities
On the
Closing Date, the Company will issue 14.5 million Class A Shares at a price of
$12.00 per share and 4.5 million Class B Shares at a price of $15.00 per share,
for an aggregate offering price of $241.5 million. Class B Shares are
convertible into Class A Shares on a one-for-one basis for no additional
consideration. Circumstances under which the Class B Shares issued to
TWMH convert to Class A Shares are summarized above. The Company is
relying on exemption from registration afforded by Section 4(2) of the
Securities Act of 1933, as amended and Rule 506 promulgated thereunder, based on
(i) representations to the Company made by TWMH that it is an accredited
investor and that the TW Shares are being acquired for investment and
(ii) the fact that TWMH was the only person offered the Company’s Class A
Shares and Class B Shares.
Signatures
Pursuant
to the requirements of the Securities Exchange Act of 1934, we have duly caused
this report to be signed on our behalf by the undersigned thereunto duly
authorized.
|
CENTRAL
EUROPEAN MEDIA ENTERPRISES LTD.
|
|
|
|
|
Date:
March 23, 2009
|
/s/ Wallace Macmillan
|
|
|
Wallace
Macmillan
Chief
Financial Officer
|
|
5