UNITED STATES | ||
SECURITIES AND EXCHANGE COMMISSION | ||
Washington, D.C. 20549 |
SCHEDULE 13D/A | ||
Under the Securities Exchange Act of 1934 | ||
(Amendment No. 3)* |
CENTRAL EUROPEAN MEDIA ENTERPRISES LTD. | ||
(Name of Issuer) |
Class A Common Stock, par value $0.08 per share | ||
(Title of Class of Securities) |
G20045202 | ||
(CUSIP Number) |
Paul T. Cappuccio, Esq. | ||
Executive Vice President and General Counsel | ||
Time Warner Inc. | ||
One Time Warner Center | ||
New York, New York 10019 | ||
(212) 484-8000 |
(Name, Address and Telephone Number of Person | ||
Authorized to Receive Notices and Communications) |
March 2, 2011
|
||
(Date of Event which Requires | ||
Filing of this Schedule) |
CUSIP No. G20045202 | Page 2 of 8 Pages | ||
1
|
NAME OF REPORTING PERSONS
Time Warner Inc.
|
||
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
(b) X
|
|
3 |
SEC USE ONLY
|
||
4 |
SOURCE OF FUNDS
WC (see Item 3)
|
||
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2 (d) or 2(e) o
|
||
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Deleware
|
||
7 |
SOLE VOTING POWER
0 (See Item 5)
|
||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING PERSON
WITH
|
8 |
SHARED VOTING POWER
25,201,800 (See Item 5)
|
|
9 |
SOLE DISPOSITIVE POWER
0 (See Item 5)
|
||
10 |
SHARED DISPOSITIVE POWER
25,201,800 (See Item 5)
|
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
25,201,800 (See Item 5)
|
|
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o
|
|
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
39.1% (See Item 5)
|
|
14 |
TYPE OF REPORTING PERSON
CO
|
CUSIP No. G20045202 | Page 3 of 8 Pages | ||
1
|
NAME OF REPORTING PERSON
TW Media Holdings LLC
|
||
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
(b) X
|
|
3 |
SEC USE ONLY
|
||
4 |
SOURCE OF FUNDS
WC (see Item 3)
|
||
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) o
|
||
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
||
7 |
SOLE VOTING POWER
0 (See Item 5)
|
||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING PERSON
WITH
|
8 |
SHARED VOTING POWER
25,201,800 (See Item 5)
|
|
9 |
SOLE DISPOSITIVE POWER
0 (See Item 5)
|
||
10 |
SHARED DISPOSITIVE POWER
25,201,800 (See Item 5)
|
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
25,201,800 (See Item 5)
|
|
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o
|
|
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
39.1% (See Item 5)
|
|
14 |
TYPE OF REPORTING PERSON
OO (See Item 2)
|
CUSIP No. G20045202 | Page 4 of 8 Pages | ||
1
|
NAME OF REPORTING PERSON
Time Warner Media Holdings B.V.
|
||
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
(b) X
|
|
3 |
SEC USE ONLY
|
||
4 |
SOURCE OF FUNDS
WC (see Item 3)
|
||
5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) o
|
||
6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
The Netherlands
|
||
7 |
SOLE VOTING POWER
0 (See Item 5)
|
||
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING PERSON
WITH
|
8 |
SHARED VOTING POWER
25,201,800 (See Item 5)
|
|
9 |
SOLE DISPOSITIVE POWER
0 (See Item 5)
|
||
10 |
SHARED DISPOSITIVE POWER
25,201,800 (See Item 5)
|
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
25,201,800 (See Item 5)
|
|
12 |
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o
|
|
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
39.1% (See Item 5)
|
|
14 |
TYPE OF REPORTING PERSON
OO (See Item 2)
|
Exhibit
|
Description
|
99.14
|
Share Purchase Agreement, dated as of March 2, 2011, by and between Time Warner Media Holdings B.V. and Testora Limited
|
|
TIME WARNER INC.
|
By: | /s/ John K. Martin, Jr. | |
Name: John K. Martin, Jr. | ||
Title: Executive Vice President, Chief Financial and Administrative Officer |
TW MEDIA HOLDINGS LLC |
By: | /s/ John K. Martin, Jr. | |
Name: John K. Martin, Jr. | ||
Title: Executive Vice President, Chief Financial and Administrative Officer |
TIME WARNER MEDIA HOLDINGS B.V. |
By: | /s/ Michael Del Nin | |
Name: Michael Del Nin | ||
Title: Managing Director |
Name |
Principal Occupation
|
Jeffrey L. Bewkes
|
Chairman of the Board and Chief Executive Officer
|
Paul T. Cappuccio | Executive Vice President and General Counsel |
Gary L. Ginsberg | Executive Vice President, Global Marketing and Communications |
John K. Martin, Jr. | Executive Vice President, Chief Financial and Administrative Officer |
Carol A. Melton | Executive Vice President, Global Public Policy |
Olaf Olafsson* | Executive Vice President |
Name
|
Principal Occupation
|
Business Address
|
James L. Barksdale
|
Chairman and President, Barksdale Management Corporation
(private investment management)
|
Barksdale Management Corporation
800 Woodland Parkway, Suite 118
Ridgeland, MS 39157
|
William P. Barr
|
Former Executive Vice President and General Counsel,
Verizon Communications Inc. (communications)
|
N/A
|
Jeffrey L. Bewkes
|
Chairman of the Board and Chief Executive Officer, Time Warner (media entertainment)
|
N/A
|
Stephen F. Bollenbach
|
Former Co-Chairman and Chief Executive Officer of Hilton Hotels Corporation (hospitality)
|
N/A
|
Frank J. Caufield
|
Co-Founder
Kleiner Perkins Caufield & Byers (venture capital firm)
|
Kleiner Perkins Caufield & Byers
2750 Sand Hill Road
Menlo Park, CA 94025
|
Robert C. Clark
|
Distinguished Service Professor, Harvard University (higher education)
|
Harvard Law School
1563 Massachusetts Avenue
Cambridge, MA 02138
|
Mathias Döpfner**
|
Chairman of the Board, Chief Executive Officer
and Head of the Newspapers and International Divisions, Axel Springer AG (newspaper and magazine publishing)
|
Axel Springer AG
Axel-Springer-Straße 65
10888 Berlin
|
Jessica P. Einhorn
|
Dean, Paul H. Nitze School of Advanced International
Studies (SAIS), The Johns Hopkins University (higher education)
|
Paul H. Nitze School of Advanced International Studies
(SAIS), The Johns Hopkins University
1740 Massachusetts Avenue, N.W.
Washington, DC 20036
|
Fred Hassan
|
Partner, Warburg Pincus (private equity firm)
|
101 Plaza Real South, Suite 203
Boca Raton, FL 33432
|
Michael A. Miles
|
Special Limited Partner, Forstmann Little & Company
(private investment firm)
|
Forstmann Little & Company
767 Fifth Avenue
New York, NY 10153
|
Kenneth J. Novack
|
Senior Counsel, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC (law firm)
|
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC
One Financial Center
Boston, MA 02111
|
Paul D. Wachter
|
Founder, Chairman and Chief Executive Officer, Main Street Advisors (investment advisory firm)
|
Main Street Advisors
3110 Main Street #300
Santa Monica, CA 90405-5354
|
Deborah C. Wright
|
Chairman of the Board, President and Chief Executive Officer Carver Bancorp, Inc. and Carver Federal Savings Bank (banking)
|
Carver Bancorp, Inc.
75 West 125th Street
New York, NY 10027
|
Name | Principal Occupation |
Olaf Olafsson*
|
Executive Vice President, Time Warner Inc.
|
John K. Martin, Jr. | Executive Vice President, Chief Financial and Administrative Officer, Time Warner Inc. |
Name | Principal Occupation |
Ron Duyn*
|
Director, Finance & Operations, Warner Bros. Entertainment Nederland B.V., Naritaweg 237, 1043CB Amsterdam, The Netherlands
|
Michael Del Nin**
|
Senior Vice President, Strategy, Time Warner Inc.
|
Stephen N. Kapner
|
Vice President and Assistant Treasurer, Time Warner Inc.
|
1.
|
Acquisition of the Shares.
|
2.
|
Closing, Delivery and Exchange.
|
(a)
|
The execution of this Agreement shall take place at the offices of Willkie Farr & Gallagher LLP, 787 Seventh Avenue, New York, New York, at 10:00 A.M. (New York City time) on the date hereof via email exchange of the copies of this Agreement. The delivery of the Shares and the payment of the Purchase Price (the “Closing”) shall take place simultaneously with execution of this Agreement. The date and time on which the Closing commences shall be referred to as the “Closing Date”.
|
(b)
|
On the Closing Date, Seller shall cause the Shares to be electronically delivered through the facilities of The Depository Trust Company (DVP) to the account specified by Purchaser.
|
(c)
|
On the Closing Date, Purchaser shall deliver or cause to be delivered to Seller immediately available funds in the amount of the Purchase Price through the facilities of The Depository Trust Company (DVP) to the account specified by Seller.
|
(d)
|
All of the actions to be taken pursuant to the Closing (including execution of this Agreement) shall be deemed to occur simultaneously and none of the actions to be taken at the Closing pursuant to this Agreement shall be deemed to have occurred until the Closing is complete.
|
3.
|
Seller’s Representations and Warranties.
|
(a)
|
Organization and Good Standing. Seller is a limited liability company duly organized, validly existing and in good standing under the laws of Cyprus.
|
(b)
|
Ownership. Seller is the sole legal and beneficial owner of the Shares free and clear of any Liens and has all power to vote, dispose of and exercise all other rights with respect to such Shares.
|
(c)
|
Good and Marketable Title. Seller has the power and authority to sell, transfer and deliver the Shares, as provided in this Agreement. Delivery of the Shares by Seller in accordance with this Agreement will convey to Purchaser good and marketable title to the Shares, free and clear of any and all Liens. The Shares are not subject to any restrictions on transfer.
|
(d)
|
Contracts. There is no existing option, warrant, call, right or Contract of any character to which Seller is a party requiring, and there are no securities outstanding which upon conversion or exchange would require, the sale or transfer of the Shares. Seller is not a party to any voting trust or other Contract with respect to the voting, redemption, sale, transfer or other disposition of the Shares, except for this Agreement.
|
(e)
|
Due Authorization. (i) The execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated hereby are within its power and authority and have been duly authorized, and no other corporate or organizational proceedings on the part of Seller are necessary to authorize the execution, delivery and performance of this Agreement or the transactions contemplated hereby and (ii) this Agreement has been duly executed and delivered by Seller and constitutes a legal, valid and binding agreement of Seller, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability, regardless of whether considered in a proceeding in equity or at law.
|
(f)
|
Governmental Authorization. The execution, delivery and performance by Seller of this Agreement and the consummation by Seller of the transactions contemplated hereby require no action by or in respect of, or filing with or approval from, or consent or authorization from any domestic or foreign federal, provincial, state, municipal or other governmental department, court, tribunal, commission or commissioner, bureau, minister or ministry, board or agency, or other regulatory authority, including any securities regulatory authority or securities exchange (each, a “Governmental Authority”). Notwithstanding the foregoing, following the Closing, Seller shall file with the U.S. Securities and Exchange Commission (the “SEC”) any filings required pursuant to Section 13(d) and Section 16 of the Exchange Act.
|
(g)
|
Non-Contravention. The execution, delivery and performance by Seller of this Agreement and the consummation by Seller of the transactions contemplated hereby do not and will not (i) contravene, conflict with, or result in (with or without due notice or lapse of time or both) any violation or breach of any provision of its organizational documents or resolutions of its shareholders, members or directors (or any committee thereof), (ii) contravene, conflict with or result in a violation or breach of any provision of any applicable Law, or (iii) require any consent or other action by any Person under, or constitute (with or without due notice or lapse of time or both) a breach of any Contract to which it is a party or by which it or any of its properties or assets may be bound or result in the creation of a security interest, Lien, charge, encumbrance, equity or claim with respect to the Shares.
|
(h)
|
Accredited Investor. Seller is a U.S. Accredited Investor.
|
(i)
|
Sophisticated Investor. Seller is a sophisticated investor and has such knowledge and experience in financial and business matters and in making investments of this type that it is capable of evaluating, negotiating and implementing the transactions contemplated hereby, including the sale of the Shares in exchange for the consideration contemplated hereby.
|
(j)
|
Evaluation. Seller has adequate public information with respect to the business, financial affairs and prospects of the Company to evaluate the merits and risks of the sale of the Shares. Seller has evaluated the merits and risks of selling the Shares on the terms set forth in this Agreement on its own and without reliance upon Purchaser (other than with respect to Purchaser’s express representations and warranties set forth herein). Based on such information as it has deemed appropriate, Seller has made the decision to sell the Shares to Purchaser, and has done so independently and without reliance upon Purchaser (or any agent or advisor of, or any other Person or entity affiliated or associated with Purchaser) for any investigation or assessment to evaluate the Company, the Shares or any other matter relating to the Company or the transactions contemplated hereby. In entering into this Agreement, Seller has not received, been induced by or relied upon any representations, warranties or statements, whether express or implied, verbal or written, made by or on behalf of Purchaser or any Affiliate, agent, employee or other representative of Purchaser which are not expressly set forth in this Agreement. It is further understood and agreed by Seller that Purchaser is not making any representations or warranties about any information provided (or otherwise made available) to Seller (or any of its representatives or agents) by or on behalf of Purchaser or any of its Affiliates unless and to the extent subject to a specific representation in Section 4 of this Agreement.
|
(k)
|
Confidential Information. Seller understands that Purchaser may be in possession of material non-public information and other confidential information relating to the Shares and the Company, including through current representation on the board of directors of the Company by certain Affiliates of Purchaser or other association with the Company, that has not been communicated to Seller. Seller acknowledges that it is proceeding with the sale of the Shares to Purchaser knowingly and voluntarily, without access to or the benefit of such information. Seller hereby waives any right to rescind or invalidate the sale of the Shares to Purchaser or to seek any damages or remuneration from Purchaser, or any Person affiliated or associated with Purchaser or any of the respective stockholders, partners, members, managers, directors, officers, employees, advisors, agents, Affiliates and representatives of Purchaser or any such Person, based on the possession of any information regarding the Company by Purchaser or such Person or the lack of possession of any such information regarding the Company by Seller.
|
(l)
|
Litigation. There is no litigation, arbitration, administrative, regulatory or other investigations, or sanctions proceedings or disputes which could materially affect fulfillment of Seller’s obligations under this Agreement, whether commenced, pending, or, to Seller’s best knowledge, threatened, and, to Seller’s best knowledge, there are no facts or any other circumstances which could lead to any of the aforementioned.
|
4.
|
Purchaser’s Representations and Warranties.
|
(a)
|
Organization and Good Standing. Purchaser is a besloten vennootschap met beperkte aansprakelijkheid or private limited company duly organized and validly existing under the laws of the Netherlands.
|
(b)
|
Due Authorization. (i) The execution, delivery and performance by Purchaser of this Agreement and the transactions contemplated hereby are within its power and authority and have been duly authorized, and no other corporate or organizational proceedings on the part of Purchaser are necessary to authorize the execution, delivery and performance of this Agreement or the transactions contemplated hereby; and (ii) this Agreement has been duly executed and delivered by Purchaser and constitutes a legal, valid and binding agreement of Purchaser enforceable against it in accordance with its terms, except in each case as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability, regardless of whether considered in a proceeding in equity or at law.
|
(c)
|
Governmental Authorization. The execution, delivery and performance by Purchaser of this Agreement and the consummation by Purchaser of the transactions contemplated hereby require no action by or in respect of, or filing with or approval from, or consent or authorization from any Governmental Authority. Notwithstanding the foregoing, following the Closing, Buyer shall file with the SEC any filings required pursuant to Section 13(d) and Section 16 of the Exchange Act.
|
(d)
|
Non-Contravention. The execution, delivery and performance by Purchaser of this Agreement and the consummation by Purchaser of the transactions contemplated hereby do not and will not (i) contravene, conflict with, or result in (with or without due notice or lapse of time or both) any violation or breach of any provision of its organizational documents or resolutions of its shareholders, members or directors (or any committee thereof), (ii) contravene, conflict with or result in a violation or breach of any provision of any applicable Law, (iii) require any consent or other action by any Person under, or constitute, with or without notice or lapse of time or both, a breach of any material contract to which it is a party or by which it or any of its properties or assets may be bound.
|
(e)
|
Litigation. There is no litigation, arbitration, administrative, regulatory or other investigations, or sanctions proceedings or disputes which could materially affect fulfillment of Purchaser’s obligations under this Agreement, whether commenced, pending, or, to Purchaser’s best knowledge, threatened, and, to Purchaser’s best knowledge, there are no facts or any other circumstances which could lead to any of the aforementioned.
|
(f)
|
Sufficiency of Funds. Purchaser has or is able to secure sufficient funds to pay, in a due and timely fashion, the Purchase Price and to acquire these funds in accordance with applicable law.
|
5.
|
Indemnification.
|
6. | Governing Law. |
7.
|
Notices.
|
if to Seller:
|
TESTORA LIMITED
Grigori Afxentiou, 8, EL.PA. LIVADIOTI, Office 401, 6023,
Larnaca, Cyprus
Attention: Director(s)
Fax: (+357) 22 66 01 87
|
if to Purchaser:
|
Time Warner Media Holdings B.V.
c/o Time Warner Inc.
One Time Warner Center
New York NY 10019
Attention: General Counsel/Senior Vice President – Mergers and Acquisitions
Fax: (212) 484-7167/(212) 484-7299
- and -
|
with a copy (which shall
not constitute notice) to:
|
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention: William H. Gump
Fax: (212) 728-8111
|
8. | Publicity. |
9.
|
Assignment.
|
10.
|
Entire Agreement.
|
11.
|
Expenses.
|
12.
|
Successors and Assigns.
|
13.
|
Severability.
|
14.
|
Defined Terms.
|
(a)
|
“Affiliate” of any Person means any other Person controlling, controlled by, or under common control with such particular Person. For purposes of this Agreement, “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, contract or otherwise;
|
(b)
|
“Agreement” means this Share Purchase Agreement;
|
(c)
|
“Business Day” means any day other than a Saturday, Sunday or any day on which banks are generally not open for business in the City of New York, New York;
|
(d)
|
“Class A Common Stock” has the meaning ascribed thereto in Section 1;
|
(e)
|
“Closing” has the meaning ascribed thereto in Section 2(a);
|
(f)
|
“Closing Date” has the meaning ascribed thereto in Section 2(a);
|
(g)
|
“Code” means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder;
|
(h)
|
“Company” has the meaning ascribed thereto in Section 1;
|
(i)
|
“Contract” means any agreement, obligation, contract, license, understanding, commitment, indenture or instrument, whether written or oral;
|
(j)
|
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended;
|
(k)
|
“Governmental Authority” has the meaning ascribed thereto in Section 3(f);
|
(l)
|
“Indemnified Parties” has the meaning ascribed thereto in Section 5(a);
|
(m)
|
“Indemnifying Party” has the meaning ascribed thereto in Section 5(a);
|
(n)
|
“Law(s)” means any federal, state or local law, statute, ordinance, rule, regulation, judgment, order, injunction, decree, declaration, arbitration award, agency requirement, license or permit of any Governmental Authority;
|
(o)
|
“Liens” means all liens, claims, pledges, options, charges, easements, security interests, deeds of trust, mortgages, conditional sales agreements, encumbrances of any nature or other rights of third parties, whether voluntarily incurred by Contract or arising by operation of Law, and includes any agreement to give any of the foregoing in the future;
|
(p)
|
“Losses” has the meaning ascribed thereto in Section 5(a);
|
(q)
|
“Notice” has the meaning ascribed thereto in Section 7;
|
(r)
|
“Person” means an individual, group (including a “group” under Section 13(d) of the Exchange Act), a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a Governmental Authority of any department, agency or political subdivision thereof;
|
(s)
|
“Purchase Price” has the meaning ascribed thereto in Section 1;
|
(t)
|
“Purchaser” has the meaning ascribed thereto in the preamble;
|
(u)
|
“SEC” has the meaning ascribed thereto in Section 3(f);
|
(v)
|
“Seller” has the meaning ascribed thereto in the preamble;
|
(w)
|
“Shares” has the meaning ascribed thereto in Section 1; and
|
(x)
|
“U.S. Accredited Investor” means an “accredited investor” under Rule 501 of Regulation D under the Securities Act of 1933, as amended, and as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act.
|
15.
|
Interpretation.
|
16.
|
Sections and Heading
|
17.
|
Further Assurances.
|
18.
|
No Third Party Beneficiaries.
|
19.
|
Survival.
|
20.
|
Amendment and Waiver.
|
21.
|
Counterparts.
|
TIME WARNER MEDIA HOLDINGS B.V.
|
|||
By: | /s/ Stephen N. Kapner | ||
Name: Stephen N. Kapner | |||
Title: Director |
TESTORA LIMITED
|
|||
By: | /s/ Andreas Loizou | ||
Name: Andreas Loizou | |||
Title: Director | |||
|
|||
By: | /s/ Elena Chrysanthou | ||
Name: Elena Chrysanthou | |||
Title: Director | |||