[FORM OF]
United Pan-Europe Communications N.V.
Ordinary Shares A
(nominal value (U)2.00 per share)
in the form of American Depositary Shares
or Ordinary Shares A
Underwriting Agreement
October 18, 1999
Xxxxxxx Xxxxx International
Xxxxxx Xxxxxxx & Co. International Limited
As representatives of the several Underwriters
named in Schedule I hereto
c/o Goldman Sachs International
Peterborough Court
000 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
United Pan-Europe Communications N.V., a Netherlands public
corporation with limited liability having its statutory seat at Amsterdam, The
Netherlands (the "Company"), proposes, subject to the terms and conditions
stated herein, to sell to the Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 12,000,000 Ordinary Shares A (the "Firm
Shares"), nominal value (U)2.00 each ("Stock"), of the Company and, at the
election of the Underwriters, up to 1,800,000 additional shares of Stock (the
"Optional Shares") (the "Offering"). The Firm Shares and the Optional Shares
that the Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the "Shares".
The Underwriters may elect to take delivery of the Shares in the
form of shares of Stock or in the form of American Depositary Shares ("ADSs").
The ADSs are to be issued pursuant to a deposit agreement (the "Deposit
Agreement") to be entered into among the Company, Citibank N.A., as depositary
(the "Depositary"), and registered holders and beneficial owners from time to
time of the American Depositary Receipts (the "ADRs") issued by the Depositary
and evidencing the ADSs. Each ADS will initially represent the right to receive
one share of Stock deposited pursuant to the Deposit Agreement.
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Two forms of prospectus are to be used in connection with the
offering and sale of shares of Stock contemplated by the foregoing, one relating
to the Shares hereunder to be sold in the United States and the other relating
to the Shares hereunder to be sold outside the United States. The international
form of prospectus will be identical to the U.S. prospectus except for certain
substitute pages. Except as the context may otherwise require, references
hereinafter to the Shares shall include all of the shares of Stock, whether in
the form of Shares or ADSs which may be sold pursuant to this Agreement.
References herein to any prospectus whether in preliminary or final form, and
whether as amended or supplemented, shall include the U.S. and the international
versions thereof.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-84427) (the
"Initial Registration Statement") in respect of the Shares has been
filed with the Securities and Exchange Commission (the "Commission");
the Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to you, and, excluding
exhibits thereto, to you for each of the other Underwriters, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission;
and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was
declared effective, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; and such final prospectus, in the form first filed pursuant
to Rule 424(b) under the Act, is hereinafter called the "Prospectus";
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder, and did not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make
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the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Xxxxxxx
Sachs International and Xxxxxx Xxxxxxx & Co. International Limited
(together, the "Representatives") expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements
of the Act and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through the Representatives expressly for use therein;
(d) A registration statement on Form F-6 (File No. 333-985) in respect
of the ADSs has been filed with the Commission; such registration
statement in the form heretofore delivered to you and, excluding
exhibits, to you for each of the other Underwriters, has been declared
effective by the Commission in such form; no other document with
respect to such registration statement has heretofore been filed with
the Commission; no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (the various
parts of such registration statement, including all exhibits thereto,
each as amended at the time such part of the registration statement
became effective, being hereinafter called the "ADS Registration
Statement"); and the ADS Registration Statement when it became
effective conformed, and any further amendments thereto will conform,
in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not, as of the
applicable effective date, contain an 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;
(e) None of the Company or its subsidiaries, or, to the best of the
Company's knowledge after due inquiry, any of @Entertainment, Inc.,
Time Warner Cable France S.A., Videopole S.A., Kabel Plus, a.s., SBS
Broadcasting S.A., Kabel Haarlem B.V. or any of their respective
subsidiaries (together, other than the Company and its subsidiaries,
the "New Acquisition Entities") has sustained since the date of its
respective latest audited financial statements included in the
Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or other legal or
governmental action, order or decree, having a material adverse effect
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on the Company, its subsidiaries and the New Acquisition Entities taken
as a whole, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been (i) any change in the capital stock of the Company, or (ii) any
increase in the long-term debt of the Company or its subsidiaries, or,
to the best of the Company's knowledge after due inquiry, the New
Acquisition Entities, in excess of $25,000,000 or its equivalent, or
(iii) any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, condition (financial or otherwise), shareholders'
equity or results of operations of the Company, its subsidiaries and
the New Acquisition Entities, taken as a whole, otherwise than as set
forth or contemplated in the Prospectus;
(f) The Company, its subsidiaries, and, to the best of the Company's
knowledge after due inquiry, the New Acquisition Entities, have good
and marketable title in fee simple to all material real property and
good and marketable title to all material personal property owned by
them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as do
not materially adversely 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, its subsidiaries and the New Acquisition Entities; and any
real property and buildings held under lease by the Company, its
subsidiaries and, to the best of the Company's knowledge after due
inquiry, the New Acquisition Entities, are held by them under valid,
subsisting and enforceable leases with such exceptions as do not have a
material adverse effect on the Company, its subsidiaries and the New
Acquisition Entities, taken as a whole, and do not interfere with the
use made and proposed to be made of such property and buildings by the
Company, its subsidiaries and the New Acquisition Entities:
(g) The Company has been duly incorporated and is validly existing as a
public limited liability company under the laws of The Netherlands,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus, and has been
duly qualified for the transaction of business outside The Netherlands
and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Company and, to the best of
the Company's knowledge after due inquiry, each of the New Acquisition
Entities, has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation;
(h) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the
Company and, to the best of the Company's knowledge after due inquiry,
the New Acquisition Entities, have been duly and validly authorized and
issued are fully paid and non-assessable and conform to the description
of the Stock contained in the Prospectus; and all of the issued shares
of capital stock of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid
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and non-assessable and (except for directors' qualifying shares and
except as set forth in the Prospectus) are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or
claims; the Company has fulfilled all of the requirements for the
provisional listing and admission for trading of all of the shares of
Stock on the Official Market of Amsterdam Exchanges (the "Amsterdam
Stock Exchange"), subject only to the execution by the Amsterdam Stock
Exchange of a Listing Agreement with the Company as provided in Section
3.2 of the Listing and Issuing Rules of the Amsterdam Stock Exchange,
and all of the ADSs have been duly listed for quotation on the National
Association of Securities Dealers Automated Quotations National Market
System ("NASDAQ"); the holders of outstanding shares of capital stock
of the Company are not entitled to preemptive or other rights to
acquire shares of Stock, except for (A) options granted under the
Company's Equity Stock Option Plan and Phantom Stock Option Plan, (B)
shares of Stock issuable or transferable pursuant to the promissory
note of the Company in the principal amount of $100,000,000 dated
January 25, 1999, and the promissory note of UPC Intermediates B.V. in
the principal amount of $20,000,000 dated January 25, 1999, in each
case payable to the order of UIH Europe, Inc. ("UIH Europe") (together,
the "UIH Europe Convertible Loans"), (C) shares of Stock issuable
pursuant to the Option Agreement, dated November 5, 1998, as amended,
among the Company, DIC Communication and Technology Ltd. ("DIC") and
PEC Israel Economic Corporation (the "DIC Option Agreement"), and (D)
warrants issuable to Microsoft Corporation, in each case as described
in the Prospectus; there are no outstanding securities convertible into
or exchangeable for, or warrants, rights or options to purchase from
the Company, or obligations of the Company to issue, the Stock or any
other class of capital stock of the Company; the Shares may be freely
deposited by the Company with the Depositary against issuance of ADRs
evidencing ADSs; the Shares are freely transferable by the Company to
or for the account of the several Underwriters and (to the extent
described in the Prospectus) the initial purchasers thereof; and there
are no restrictions on subsequent transfers of the Shares under the
laws of The Netherlands and of the United States except as described in
the Prospectus under the captions "Shares Eligible For Future Sale" and
"Description of American Depositary Shares" or except for Shares
acquired by affiliates (as defined in Rule 144 under the Act) of the
Company;
(i) The Shares to be sold by the Company to the Underwriters hereunder
have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly
issued and fully paid and non-assessable, will not be subject to any
preemptive or similar rights and will conform to the description of the
Stock contained in the Prospectus;
(j) The Deposit Agreement has been duly authorized by the Company, and
will, upon execution and delivery by the Company, constitute a valid
and legally binding agreement of the Company, enforceable in accordance
with its terms, subject, as to enforceability, to bankruptcy,
insolvency, reorganization and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; upon issuance by the Depositary of ADRs evidencing ADSs
against the deposit of Shares in respect thereof in
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accordance with the provisions of the Deposit Agreement, such ADRs will
be duly and validly issued and the persons in whose names the ADRs are
registered will be entitled to the rights specified therein and in the
Deposit Agreement; and the Deposit Agreement and the ADRs conform in
all material respects to the descriptions thereof contained in the
Prospectus;
(k) All consents, approvals, authorizations, orders, registrations,
clearances, qualifications or filing of or with any court or
governmental agency or body (hereinafter referred to as a "Governmental
Agency") having jurisdiction over the Company, any of its subsidiaries
or, to the best of the Company's knowledge after due inquiry, the New
Acquisition Entities, or any of their properties or any stock exchange
authorities (hereinafter referred to as "Governmental Authorizations")
required for the deposit of Shares and the issuance of ADSs in respect
thereof in accordance with the provisions of the Deposit Agreement, and
for the execution and delivery by the Company of this Agreement and the
Deposit Agreement to be duly and validly authorized, have been obtained
or made and are in full force and effect;
(l) Except to the extent otherwise set forth in the Prospectus, (A) all
dividends and other distributions declared and payable on the shares of
capital stock of the Company deposited with the Depositary in
accordance with the provisions of the Deposit Agreement may, under the
current laws and regulations of The Netherlands, be paid to the
Depositary in Dutch guilders or euros that may be converted into
foreign currency that may be freely transferred out of The Netherlands,
and (B) all such dividends and other distributions will not be subject
to withholding or other taxes under the laws and regulations of The
Netherlands and are otherwise free and clear of any other tax,
withholding or deduction in The Netherlands and without the necessity
of obtaining any Governmental Authorization (as defined below) in The
Netherlands;
(m) The issue and sale of the Shares to be sold by the Company
hereunder, the deposit of the Shares being deposited with the
Depositary in accordance with the provisions of the Deposit Agreement
against issuance of the ADRs evidencing the ADSs in respect thereof and
the compliance by the Company with all of the provisions of this
Agreement and the Deposit Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company,
its subsidiaries or, to the best of the Company's knowledge after due
inquiry, the New Acquisition Entities, is a party or by which the
Company, its subsidiaries or, to the best of the Company's knowledge
after due inquiry, the New Acquisition Entities, is bound or to which
any of the property or assets of the Company, its subsidiaries or, to
the best of the Company's knowledge after due inquiry, the New
Acquisition Entities, is subject, nor will such action result in any
violation of the provisions of the Articles of Association or bylaws or
other organizational documents of the Company, its subsidiaries or, to
the best of the Company's knowledge after due inquiry, the
6
New Acquisition Entities, or any statute or other applicable law or any
order, rule, filing, judgement, injunction, decree or regulation of any
Governmental Agency having jurisdiction over the Company, its
subsidiaries or, to the best of the Company's knowledge after due
inquiry, the New Acquisition Entities, or any of their properties
except, with respect in any such case to the subsidiaries and, to the
best of the Company's knowledge after due inquiry, the New Acquisition
Entities, as would not, singly or in the aggregate, have a material
adverse effect on the Company, its subsidiaries and the New Acquisition
Entities taken as a whole; and no such Governmental Authorization of or
with any such Governmental Agency is required for the issue and sale of
the Shares, for the deposit of the Shares being deposited with the
Depositary in accordance with the provisions of the Deposit Agreement
against issuance of ADRs evidencing the ADSs in respect thereof to be
delivered or the consummation by the Company of the transactions
contemplated by this Agreement, except (A) the registration under the
Act of the Shares, (B) such Governmental Authorizations as have been
duly obtained and are in full force and effect and copies of which have
been furnished to you and (C) such Governmental Authorizations as may
be required under United States state securities or Blue Sky laws, or
any laws of jurisdictions other than The Netherlands and the United
States, in connection with the purchase and distribution of the Shares
by or for the account of the Underwriters;
(n) None of Company, its subsidiaries or, to the best of the Company's
knowledge after due inquiry, the New Acquisition Entities is in
violation of its Articles of Association or other constituent documents
or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound, except for such defaults as would not,
singly or in the aggregate, have a material adverse effect on the
Company, its subsidiaries and the New Acquisition Entities taken as a
whole;
(o) Except as otherwise set forth in the Prospectus, 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 The Netherlands or any political subdivision or taxing
authority thereof or therein in connection with (A) the deposit with
the Depositary of Shares in accordance with the provisions of the
Deposit Agreement by the Company against the issuance of ADRs
evidencing ADSs in respect thereof, (B) the sale and delivery by the
Company of the Shares to or for the respective accounts of the
Underwriters or (C) the sale and delivery outside The Netherlands by
the Underwriters of the Shares to the initial purchasers thereof;
(p) Neither the Company nor any of its subsidiaries has taken, directly
or indirectly, any action which was designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
7
(q) The statements set forth in the Prospectus under the caption
"Description of Share Capital" and "Description of American Depositary
Shares", insofar as they purport to constitute a summary of the terms
of the Stock and the ADSs, respectively, under the caption "Taxation",
and under the caption "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to therein,
and under the caption "Certain Relationships and Transactions --
Relationship with United and Related Transactions", insofar as they
purport to describe such relationship and related transactions, and
under the caption "Certain Relationships and Transactions --
Relationship with Microsoft", insofar as they purport to describe such
relationship, are accurate and complete in all material respects;
(r) Except as otherwise set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company,
UnitedGlobalCom, Inc. ("Parent") or any of their respective
subsidiaries, or, to the best of the Company's knowledge after due
inquiry, the New Acquisition Entities, is a party or of which any
property of the Company, Parent, or any of their respective
subsidiaries or the New Acquisition Entities is the subject which, if
determined adversely to the Company, Parent, or any of their respective
subsidiaries or the New Acquisition Entities, would individually or in
the aggregate have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company, its subsidiaries and the New Acquisition
Entities taken as a whole; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by Governmental
Agencies or threatened by others;
(s) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be, an "investment company", as such term
is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(t) Except as otherwise set forth in the Prospectus, the Company, its
subsidiaries and, to the best of the Company's knowledge after due
inquiry, the New Acquisition Entities, have all licenses, franchises,
permits, authorizations, approvals and orders and other concessions of
and from all Governmental Agencies that are necessary to own or lease
their properties and conduct their current businesses as described in
the Prospectus, with such exceptions as would not, individually or in
the aggregate, have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company, its subsidiaries and the New Acquisition
Entities taken as a whole;
(u) The Company is not a Passive Foreign Investment Company ("PFIC")
within the meaning of Section 1296 of the United States Internal
Revenue Code of 1986, as amended, and is not likely to become a PFIC;
(v) Neither the Company nor any of its subsidiaries or affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes;
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(w) Xxxxxx Xxxxxxxx, who have certified certain financial statements of
the Company, its subsidiaries and the New Acquisition Entities, and
Xxxxxx Xxxxxxxx, s.r.o., Pricewaterhouse Coopers N.V.,
Pricewaterhousecoopers (France), Pricewaterhousecoopers (Malta),
Pricewaterhousecoopers (Sweden), KPMG Polska Sp. zo.o, KPMG Accountants
N.V., KPMG Somekhchaikis, KPMG Slovenski, s.r.o., VB Deloitte & Touche,
Ernst & Xxxxx X.X., Xxxxx & Xxxxx (Netherlands), Ernst & Young
(Denmark), Ernst & Young AB, Ernst & Young, Xxxxxx et Associes, whose
have certified certain financial statements of the Company's
subsidiaries and the New Acquisition Entities, are, insofar as the
Company, its subsidiaries and the New Acquisition Entities are
concerned, each independent public accountants are required by the Act
and the rules and regulations of the Commission thereunder;
(x) The Company is reviewing its operations and those of its
subsidiaries, the New Acquisition Entities, Parent and any third
parties with which the Company, its subsidiaries or the New Acquisition
Entities has a material relationship to evaluate the extent to which
the business or operations of the Company, its subsidiaries or the New
Acquisition Entities will be affected by the Year 2000 Problem. As a
result of such ongoing review to date, the Company currently has no
reason to believe, and does not currently believe, that the Year 2000
Problem will have a material adverse effect on the general affairs,
management, the current or future consolidated financial position,
business prospects, shareholders' equity or results of operations of
the Company, its subsidiaries and, to the best of the Company's
knowledge after due inquiry, the New Acquisition Entities taken as a
whole, or result in any material loss or interference with the
Company's business or operations. The "Year 2000 Problem" as used
herein means any significant risk that computer hardware or software
used in the receipt, transmission, processing, manipulation, storage,
retrieval, retransmission or other utilization of data or in the
operation of mechanical or electrical systems of any kind will not, in
the case of dates or time periods occurring after December 31, 1999,
function at least as effectively as in the case of dates or time
periods occurring prior to January 1, 2000;
(y) The Company, its subsidiaries and, to the best of the Company's
knowledge after due inquiry, the New Acquisition Entities, own,
possess, have rights to or can acquire adequate patents, licenses,
know-how, trademarks, copyrights, trade secrets, mask works, service
marks and trade names necessary to operate the businesses now operated
by them, and none of the Company, its subsidiaries or, to the best of
the Company's knowledge after due inquiry, the New Acquisition
Entities, has received any notice of infringement of or conflict with
asserted rights of others with respect to any of the foregoing which
the Company reasonably believes, singly or in the aggregate, is likely
to result in any material adverse change in the condition (financial or
otherwise) or in the earnings, business or operations of the Company,
its subsidiaries and the New Acquisition Entities taken as a whole;
(z) The Company, its subsidiaries and, to the best of the Company's
knowledge after due inquiry, the New Acquisition Entities (A) are in
compliance with any and all applicable laws and regulations relating to
the protection of human health and safety, the environment or
9
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (B) have received all permits, licenses or
other approvals required of them under the applicable Environmental
Laws to conduct their respective businesses and (C) are in compliance
with all terms and conditions of any such permit, licence or approval,
except where such noncompliance with Environmental laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the Company, its subsidiaries and the New Acquisition
Entities taken as a whole; and
(aa) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company (A) to file, other than in connection with (i) the DIC Option
Agreement, (ii) the Registration Rights Agreement dated February 10,
1999 between the Company and Parent, (iii) the agreement to grant
Microsoft Corporation certain registration rights as described in the
Prospectus under the caption "Certain Transactions and Relationships --
Relationship with Microsoft" and (iv) the Registration Rights Agreement
dated July 30, 1999 among the Company and the Initial Purchasers named
therein, a registration statement under the Securities Act with respect
to any securities of the Company or (B) to include any securities of
the Company with the Shares registered pursuant to the Registration
Statement and the ADS Registration Statement.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the
Company, at a purchase price per Share of (U)[ ] and per ADS of $[ ]
(to the extent that Xxxxxxx Xxxxx International makes the election to
take delivery of any Shares in the form of ADSs pursuant to Section 4
hereof), the number of Firm Shares (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying the aggregate
number of Firm Shares to be sold by the Company by a fraction, the
numerator of which is the aggregate number of Firm Shares to be
purchased by such Underwriter as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the
aggregate number of Firm Shares to be purchased by all of the
Underwriters from the Company hereunder and (b) in the event and to the
extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company agrees to sell to each
of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company at the purchase price per
Share and per ADS set forth in clause (a) of this Section 2, that
portion of the number of Optional Shares as to which such election
shall have been exercised (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying such number of Optional
Shares by a fraction the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set
forth opposite the name of such Underwriter in Schedule I hereto and
the denominator of which is the maximum number of Optional Shares that
all of the Underwriters are entitled to purchase hereunder.
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The Company hereby grants to the Underwriters the right to
purchase at their election up to 1,800,000 Optional Shares, at the
purchase price per Share or ADS set forth in the paragraph above, for
the sole purpose of covering sales of shares in excess of the number of
Firm Shares. Any such election to purchase Optional Shares may be
exercised only by written notice from you to the Company, given within
a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be purchased
and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless you and the
Company otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus and in Annex I to this
Agreement.
4. (a) With respect to all or a portion of the Shares to be purchased and
sold hereunder at each Time of Delivery (as defined below), Xxxxxxx
Sachs International, on behalf of the several Underwriters, may elect
to have ADSs delivered and paid for hereunder in lieu of, and in
satisfaction of, the Company's obligation to sell to the several
Underwriters and the several Underwriters' obligations to purchase,
Shares. Notice of such election shall be given by Xxxxxxx Xxxxx
International to the Company at least forty-eight hours prior to such
Time of Delivery (as defined below) (the "Notification Time"). The
number of Shares to be purchased by the Underwriters as a result of the
making of such election shall be adjusted by Xxxxxxx Sachs
International so as to eliminate any fractional Shares.
(b) If the election has been made in accordance with
subsection (a) above, the ADSs to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered in such names as Xxxxxxx Xxxxx International may request
prior to the Notification Time shall be delivered by or on behalf of
the Company to Xxxxxxx Sachs International, through the facilities of
The Depository Trust Company ("DTC"), for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer of Federal (same-day) funds to
the account specified by the Company to Xxxxxxx Xxxxx International at
least forty-eight hours in advance. The Company will cause the
certificates representing the ADSs to be made available for checking at
least twenty-four hours prior to the Time of Delivery (as defined
below) with respect thereto at the office of Xxxxxxx Sachs
International, Peterborough Court, 000 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX,
Xxxxxxx (the "Designated Office").
(c) Delivery of the Shares by the Company will be made by
book-entry transfer in the Nederlands Centraal Instituut voor Giraal
Effectenverkeer B.V. ("NECIGEF") to an account or accounts specified by
Xxxxxxx Xxxxx International, at Kas Associatie N.V. ("Kas") prior to
the Notification Time. It is understood and agreed by the parties
hereto that
11
no delivery or transfer of ADSs or Shares to be purchased and sold
hereunder at a Time of Delivery shall be effective until and unless
payment therefor has been made pursuant hereto and each of Kas,
Citibank, N.A. and the Company shall have furnished or caused to be
furnished to Xxxxxxx Sachs International, on behalf of the
Underwriters, at such Time of Delivery certificates and other evidence
reasonably satisfactory to Xxxxxxx Xxxxx International, of the
execution in favor of the Underwriters of the book-entry transfer of
Shares and ADSs to Kas and DTC, respectively.
The time and date of such delivery and payment shall be, with
respect to the Firm Shares, 6.15a.m., London time, on October 21, 1999
or such other time and date as Xxxxxxx Sachs International and the
Company may agree upon in writing and, with respect to the Optional
Shares, 6.15a.m., London time, on the date specified by Xxxxxxx Xxxxx
International, in the written notice given by Xxxxxxx Sachs
International of the Underwriters' election to purchase such Optional
Shares, or such other time and date as Xxxxxxx Xxxxx International and
the Company may agree in writing. Such time and date for delivery of
the Firm Shares is herein called the "First Time of Delivery", such
time and date for delivery of the Optional Shares, if not the First
Time of Delivery, is herein called the "Second Time of Delivery", and
each such time and date for delivery is herein called a "Time of
Delivery".
(d) The documents to be delivered at each Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof,
including the cross-receipt for the Shares and ADSs and any additional
documents requested by the Underwriters pursuant to Section 7(q)
hereof, will be delivered at the offices of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, One Canada Square, Xxxxxx Xxxxx, Xxxxxx X00 0XX,
Xxxxxxx (the "Closing Location"), and the Shares will be delivered as
specified in subsections (b) and (c) above, all at such Time of
Delivery. A meeting will be held at the Closing Location at 3.00p.m.,
London time, on the London Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for
review by the parties hereto. For the purposes of this Section 4,
"London Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in
London are generally authorized or obligated by law or executive order
to close.
5. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved
by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than
the Commission's close of business on the
second business day following the execution
and delivery of this Agreement, or, if
applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Act;
to make no further amendment or any
supplement to the Registration Statement or
Prospectus which shall be disapproved by you
promptly
12
after reasonable notice thereof; to advise
you, promptly after it receives notice
thereof, of the time when any amendment to
the Registration Statement has been filed or
becomes effective or any supplement to the
Prospectus or any amended Prospectus has
been filed and to furnish you copies
thereof; to file promptly all reports
required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c)
or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and for so long
as the delivery of a prospectus is required
in connection with the offering or sale of
the Shares; to advise you, promptly after it
receives notice thereof, of the issuance by
the Commission of any stop order or of any
order preventing or suspending the use of
any Preliminary Prospectus or prospectus, of
the suspension of the qualification of the
Shares for offering or sale in any
jurisdiction, of the initiation or
threatening of any proceeding for any such
purpose, or of any request by the Commission
for the amending or supplementing of the
Registration Statement or Prospectus or for
additional information; and, in the event of
the issuance of any stop order or of any
order preventing or suspending the use of
any Preliminary Prospectus or prospectus or
suspending any such qualification, promptly
to use its best efforts to obtain the
withdrawal of such order;
(ii) Promptly from time to time to take such
action as you may reasonably request to
qualify the Shares for offering and sale
under the securities laws of such
jurisdictions as you may request and to
comply with such laws so as to permit the
continuance of sales and dealings therein in
such jurisdictions for as long as may be
necessary to complete the distribution of
the Shares, provided that in connection
therewith the Company shall not be required
to qualify as a foreign corporation or to
file a general consent to service of process
in any jurisdiction;
(iii) Prior to 10:00 A.M., New York City time, on
the New York Business Day next succeeding
the date of this Agreement and from time to
time, to furnish the Underwriters with
copies of the Prospectus in New York in such
quantities as you may reasonably request,
and, if the delivery of a prospectus is
required at any time prior to the expiration
of nine months after the time of issue of
the Prospectus in connection with the
offering or sale of the Shares and if at
such time any events shall have occurred as
a result of which the Prospectus as then
amended or supplemented would include an
untrue statement of a material fact or omit
to state any material fact necessary in
order to make the statements therein, in the
light of the circumstances under
13
which they were made when such Prospectus is
delivered, not misleading, or, if for any
other reason it shall be necessary during
such period to amend or supplement the
Prospectus in order to comply with the Act,
to notify you and upon your request to
prepare and furnish without charge to each
Underwriter and to any dealer in securities
as many copies as you may from time to time
reasonably request of an amended Prospectus
or a supplement to the Prospectus which will
correct such statement or omission or effect
such compliance, and in case any Underwriter
is required to deliver a prospectus in
connection with sales of any of the Shares
at any time nine months or more after the
time of issue of the Prospectus in order to
comply with the Act, upon your request but
at the expense of such Underwriter, to
prepare and deliver to such Underwriter as
many copies as you may request of an amended
or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(iv) To make generally available to its
shareholders as soon as practicable, but in
any event not later than eighteen months
after the effective date of the Registration
Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the
Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of
the Act and the rules and regulations of the
Commission thereunder (including, at the
option of the Company, Rule 158);
(v) During the period beginning from the date
hereof and continuing to and including the
date 90 days after the date of the
Prospectus, not to, directly or indirectly,
offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder,
any securities of the Company that are
substantially similar to the Shares,
including but not limited to the Company's
Ordinary Shares A, Ordinary Shares B,
Class A Preference Shares (but excluding the
Company's Class B Preference Shares) and any
securities that are convertible into or
exchangeable for, or that represent the
right to receive, Stock or any such
substantially similar securities ("Subject
Securities") (other than (A) to employees
and directors of the Company pursuant to
stock option plans existing on, or upon the
conversion or exchange of convertible or
exchangeable securities outstanding as of
the date of this Agreement, or (B) in the
form of warrants to be issued to Microsoft
Corporation, as described in the Prospectus
under the caption "Relationship with
Microsoft"; or to enter into any derivative
transaction having an economic effect
similar to any of the foregoing, without the
prior written consent of Xxxxxxx Sachs
International and Xxxxxx Xxxxxxx & Co.
International Limited; provided, however,
that the Company may, from the date 30 days
following the date of the Prospectus, with
the prior written consent of Xxxxxxx Sachs
International and Xxxxxx Xxxxxxx & Co.
International Limited,
14
(a) issue Subject Securities in private
placements to one or more institutional
investors of national or international
reputation or (b) sell or otherwise dispose
of Subject Securities in exchange for equity
securities or assets in a strategic
acquisition, in each case as set forth in
clause (a) or (b) above subject to execution
by each acquiror of Subject Securities of a
"lock-up" agreement, in form and substance
satisfactory to Xxxxxxx Sachs International
and Xxxxxx Xxxxxxx & Co. International
Limited, binding on such acquiror during the
period beginning with the date of its
acquisition of Subject Securities and
continuing to and including the date 90
days following the date of the Prospectus;
(vi) To furnish to its shareholders as soon as
practicable after the end of each fiscal
year an annual report (in English)
(including a balance sheet and statements of
income, shareholders' equity and cash flows
of the Company and its consolidated
subsidiaries certified by independent public
accountants and prepared in conformity with
generally accepted accounting principles in
the U.S. ("U.S. GAAP")), and, as soon as
practicable after the end of each of the
first three quarters of each fiscal year
prepared in accordance with U.S. GAAP
(beginning with the fiscal quarter ending
after the effective date of the Registration
Statement), to make available to its
shareholders consolidated summary financial
information of the Company and its
subsidiaries for such quarter in reasonable
detail;
(vii) During a period of five years from the
effective date of the Registration
Statement, to furnish to you copies of all
reports or other communications (financial
or other) furnished to shareholders, and to
deliver to you (i) as soon as they are
available, copies of any reports and
financial statements furnished to or filed
with the Commission or any securities
exchange on which any class of securities of
the Company is listed, and (ii) such
additional information concerning the
business and financial condition of the
Company as you may from time to time
reasonably request (such financial
statements to be on a consolidated basis to
the extent the accounts of the Company and
its subsidiaries are consolidated in reports
furnished to its shareholders generally or
to the Commission);
(viii) To use the net proceeds received by it from
the sale of the Shares and ADSs pursuant to
this Agreement in the manner specified in
the Prospectus under the caption "Use of
Proceeds";
(ix) Prior to First Time of Delivery to execute
and deliver the Deposit
15
Agreement and prior to each Time of Delivery
to deposit the Stock with the Depositary in
accordance with the provisions of the
Deposit Agreement and otherwise to comply
with the Deposit Agreement so that ADRs
evidencing ADSs will be executed (and, if
applicable, countersigned) and issued by the
Depositary against receipt of such Stock and
delivered to the Underwriters at such Time
of Delivery;
(x) Not to (and to cause its subsidiaries not
to) take, directly or indirectly, any action
which is designed to or which constitutes or
which might reasonably be expected to cause
or result in stabilization or manipulation
of the price of any security of the Company
or facilitate the sale or resale or the
Shares;
(xi) To use its best efforts to list the Shares
in the form of shares of Stock on the
Amsterdam Stock Exchange and list for
quotation the ADSs on NASDAQ;
(xii) If the Company elects to rely upon Rule
462(b), the Company shall file a Rule 462(b)
Registration Statement with the Commission
in compliance with Rule 462(b) by 10:00
P.M., Washington, D.C. time, on the date of
this Agreement, and the Company shall at the
time of filing either pay to the Commission
the filing fee for the Rule 462(b)
Registration Statement or give irrevocable
instructions for the payment of such fee
pursuant to Rule 111(b) under the Act; and
(xiii) To enforce any "lock-up" agreement entered
into by an acquiror of Subject Securities
pursuant to the proviso to Section 5(a)(v)
hereof.
(b) Parent agrees with each of the Underwriters:
(i) During the period beginning from the date hereof
and continuing to and including the date 90 days following the
date of the Prospectus, not to, directly or indirectly, offer,
sell, contract to sell or otherwise dispose of, except as
provided hereunder, any Subject Securities (other than pursuant
to employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), or to enter into
any derivative transaction having an economic effect similar to
any of the foregoing, without the prior written consent of
Xxxxxxx Sachs International and Xxxxxx Xxxxxxx & Co.
International Limited; provided, however, that Parent may, from
the date 30 days following the date of the Prospectus, with the
prior written consent of Xxxxxxx Sachs International and Xxxxxx
Xxxxxxx & Co. International Limited (a) sell Subject Securities
in private placements to one or more institutional investors of
national or international reputation or (b) sell or otherwise
dispose of Subject Securities in exchange for equity securities
or assets in strategic acquisitions, in each case set forth in
clause (a) or (b) above subject to
16
execution by each acquiror of Subject Securities of a "lock-up"
agreement, in form and substance satisfactory to Xxxxxxx Xxxxx
International and Xxxxxx Xxxxxxx & Co. International Limited,
binding on such acquiror during the period beginning with the
date of its acquisition of Subject Securities and continuing to
and including the date 90 days following the date of the
Prospectus;
(ii) Not to (and to cause its affiliates not to) take,
directly or indirectly, any action which is designed to or which
constitutes or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares; and
(iii) To enforce any "lock-up" agreement entered into
by an acquiror of Subject Securities to the proviso to clause
(i) of this Section 5(b).
6. The Company covenants and agrees and with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under
the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, the ADS
Registration Statement, any Preliminary Prospectus and the Prospectus
and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this
Agreement, the Deposit Agreement, the Blue Sky memorandum, closing
documents (including compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the
Shares; (iii) all expenses in connection with the qualification of
the Shares for offering and sale under state securities laws, other
than the fees and disbursements of counsel for the Underwriters in
connection with such qualification; (iv) all fees and expenses in
connection with listing the Shares and ADSs on the Amsterdam Stock
Exchange and NASDAQ; (v) the filing fees incident to securing any
required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Shares; (vi) the reasonable
out-of-pocket expenses (other than fees and disbursements of counsel
to the Underwriters) incurred by the Underwriters in connection with
the transactions contemplated herein; (vii) all stamp, transfer,
capital issuance or similar expenses and taxes arising as a result of
the deposit by the Company of the Shares with the Depositary and the
issuance and delivery of the ADRs evidencing ADSs in exchange
therefor by the Depositary to the Company as contemplated by the
Deposit Agreement, of the sale and delivery of the ADS and the Shares
by the Company to or for the account of the Underwriters pursuant to
this Agreement, and the sale and delivery of the Shares and ADSs by
the Underwriters to the initial purchasers thereof in the manner
contemplated under this Agreement, and any Dutch income, capital
gains, withholding, transfer or other tax asserted against an
Underwriter solely by reason of the purchase and sale of any Shares
or ADSs pursuant to this Agreement; (viii) the fees and expenses
(including fees and disbursements of counsel), if any, of the
Depositary and any custodian appointed under the Deposit Agreement,
other than the fees and expenses to be paid by holders of
17
ADRs (other than the Underwriters, in connection with the initial
purchase of the Shares or ADSs); (ix) fees and expenses of the
Authorized Agent (as defined in Section 14 hereof); (x) the cost of
preparing stock certificates or a global share certificate (as
applicable) and ADRs; (xi) the cost and charges of any transfer agent
or registrar; and (xii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section, including all reasonable
roadshow costs. It is understood, however, that, except as provided in
this Section 6 and Sections 8 and 11 hereof, the Underwriters will pay
all of their own costs and expenses.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their
discretion, to the condition that all representations and warranties
and other statements of the Company herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and
Parent shall have performed all of their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become
effective by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement; no stop order suspending the effectiveness of the
Registration Statement or the ADS Registration Statement or any part of
either the Registration Statement or the ADS Registration Statement
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, United States counsel for
the Underwriters, shall have furnished to you such written opinion or
opinions, dated such Time of Delivery, in a form and substance
satisfactory to you;
(c) Xxxxx Dutilh, Dutch counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery,
in form and substance satisfactory to you;
(d) Xxxxx Xxxxxxx & Xxxx XXX, Xxxxxx Xxxxxx counsel for the Company,
shall have furnished to you their written opinion, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) Parent has been duly incorporated and is
validly existing as a corporation in good
standing under the laws of the State of
Delaware and each of this Agreement and the
agreement referred to in Section 7(t) of
this Agreement has been duly authorized,
executed and delivered by Parent and,
insofar as New York law is concerned, this
18
Agreement has been duly executed and
delivered by the Company;
(ii) The Deposit Agreement has been duly executed
and delivered by the Company and, assuming
due authorization, execution and delivery of
the Deposit Agreement by the Depositary and
that each of the Depositary and (under Dutch
law) the Company has full power, authority
and legal right to enter into and perform
its obligations thereunder, constitutes a
valid and legally binding agreement of the
Company, enforceable in accordance with its
terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and
similar laws of general applicability
relating to or affecting creditors' rights
generally and to general principles of
equity;
(iii) Upon due issuance by the Depositary of the
ADRs evidencing ADSs being delivered at such
Time of Delivery against the deposit of
Shares in respect thereof in accordance with
the provisions of the Deposit Agreement,
such ADRs will be duly and validly issued
and the persons in whose name the ADRs are
registered will be entitled to the rights
specified therein and in the Deposit
Agreement; and the Deposit Agreement and the
ADRs conform in all material respects to the
descriptions thereof contained in the
Prospectus;
(iv) Under the laws of the State of New York
relating to personal jurisdiction, the
Company has, pursuant to Section 14 of this
Agreement, validly and irrevocably submitted
to the personal jurisdiction of any state or
federal court of competent subject-matter
jurisdiction located in the Borough of
Manhattan, The City of New York, New York
(each a "New York Court") in any action
arising out of or relating to this Agreement
or the transactions contemplated hereby, has
validly and irrevocably waived any objection
to the venue of a proceeding in any such
court, and has validly and irrevocably
appointed the Authorized Agent (as defined
herein) as its authorized agent for the
purpose described in Section 14 of this
Agreement, and service of process effected
on such agent in the manner set forth in
Section 14 hereof will be effective to
confer valid personal jurisdiction over the
Company;
(v) To the best of such counsel's knowledge and
other than as set forth in the Prospectus,
there are no legal, regulatory or
governmental proceedings pending to which
the Company, Parent or any of their
respective subsidiaries is a party or of
which any property of the Company, Parent or
any of their respective subsidiaries is the
subject,
19
and with respect to which there is a
reasonable expectation of an adverse
determination that would individually or in
the aggregate have a material adverse effect
on the current or future consolidated
financial position, shareholders' equity or
results of operations of the Company, Parent
or any of their respective subsidiaries;
and, to the best of such counsel's
knowledge, no such proceedings are
threatened by any Governmental Agency,
domestic or foreign, or threatened by
others;
(vi) Neither the Company nor any of its
subsidiaries is in default in the
performance or observance of any obligation,
agreement, covenant or condition contained
in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or
instrument known to such counsel to which
the Company or such subsidiary is a party or
by which it or any of its properties may be
bound, except for such defaults as would
not, singly or in the aggregate, reasonably
be expected to have a material adverse
effect on the current or future consolidated
financial position, shareholders' equity or
results of operations of the Company, Parent
or any of their respective subsidiaries;
(vii) The issue and sale of the Shares being
delivered at such Time of Delivery and the
deposit of the Shares being deposited by the
Company with the Depositary against issuance
of the ADRs to be delivered at such Time of
Delivery and the compliance by the Company
and Parent with all of the provisions of
this Agreement and the consummation of the
transactions herein contemplated will not
conflict with or result in a breach or
violation of any of the terms or provisions
of, or constitute a default under or require
consent under, or result in the imposition
of a lien or encumbrance on any assets or
properties of the Company, Parent or any of
their respective subsidiaries, or an
acceleration of the indebtedness pursuant to
any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or
instrument known to such counsel to which
the Company, Parent or any of their
respective subsidiaries is a party or by
which the Company, Parent or any of their
respective subsidiaries is bound or to which
any of the property or assets of the
Company, Parent or any of their respective
subsidiaries is subject, except for such
breaches, violations or defaults as would
not, singly or in the aggregate, reasonably
be expected to have a material adverse
effect on the Company and its subsidiaries,
nor will such action result in any violation
of the certificate of incorporation or
bylaws of Parent or any violation of any
statue, rule or regulation or, to the
knowledge
20
of such counsel, any order, of any United
States Federal or New York Governmental
Agency having jurisdiction over the Company,
Parent or any of their respective
subsidiaries or properties;
(viii) No Governmental Authorization of the United
States or the State of New York is required
for the issue and sale of the Shares or the
consummation by the Company of the
transactions contemplated by this Agreement,
except the registration under the Act of the
Shares, and such consents, approvals,
authorizations, registrations or
qualifications as may be required under
state securities or Blue Sky laws in
connection with the purchase and
distribution of the Shares by the
Underwriters;
(ix) The statements set forth in the Prospectus
under the caption "Description of American
Depositary Shares," insofar as they purport
to constitute a summary of the terms of the
ADSs, under the caption "Certain Tax
Consequences-Certain United States Federal
Income Tax Consequences," and under the
caption "Underwriting" insofar as they
purport to describe the provisions of the
laws and documents referred to therein, are
accurate and fairly summarize such laws and
documents in all material respects;
(x) Neither the Company nor any of its
subsidiaries is now, nor, after the sale of
Shares to be sold by it thereunder and the
application of the proceeds from such sales
as described in the Prospectus under the
caption "Use of Proceeds," will be (a) an
"investment company" or a company
"controlled" by an "investment company"
within the meaning of the Investment Company
Act, or (b) a "holding company" or a
"subsidiary company" or an "affiliate" of a
holding company within the meaning of the
Public Utility Holding Company Act of 1935,
as amended;
(xi) The Registration Statement, the ADS
Registration Statement and the Prospectus
and any further amendments and supplements
thereto made by the Company prior to such
Time of Delivery (other than the financial
statements and related schedules therein, as
to which such counsel need express no
opinion) comply as to form in all material
respects with the requirements of the Act
and the rules and regulations thereunder;
although they do not assume any
responsibility for, the accuracy or
completeness of the statements in the
Registration Statement, the ADS Registration
Statement or the Prospectus, except for
those referred to in the opinion in
subsection (ix) of this Section 7(d), they
have no reason to believe that, as of its
21
effective date, the Registration Statement
or the ADS Registration Statement or any
further amendment thereto made by the
Company prior to such Time of Delivery
(other than the financial statements and
related schedules therein, as to which such
counsel need express no opinion) contained
an 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 or that,
as of its date, the Prospectus or any
further amendment or supplement thereto made
by the Company prior to such Time of
Delivery (other than the financial
statements and related schedules therein, as
to which such counsel need express no
opinion) contained an untrue statement of a
material fact or omitted to state a material
fact necessary to make the statements
therein, in light of the circumstances under
which they were made, not misleading or
that, as of such Time of Delivery, either
the Registration Statement, the ADS
Registration Statement or the Prospectus or
any further amendment or supplement thereto
made by the Company prior to such Time of
Delivery (other than the financial
statements and related schedules therein, as
to which such counsel need express no
opinion) contains an untrue statement of a
material fact or omits to state a material
fact necessary to make the statements
therein, in light of the circumstances under
which they were made, not misleading; and
they do not know of any amendment to the
Registration Statement or the ADS
Registration Statement required to be filed
or of any contracts or other documents of a
character required to be filed as an exhibit
to the Registration Statement or the ADS
Registration Statement or required to be
described in the Registration Statement, the
ADS Registration Statement or the Prospectus
which are not filed or described as
required.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States;
(e) Loeff Xxxxxx Xxxxxxx, Netherlands counsel for the Company, shall
have furnished to you their written opinion, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) United Pan-Europe Communications N.V. (the "Company")
has been duly incorporated as a public company with
limited liability and is validly existing under the
laws of The Netherlands. The Company has the power
and authority to own its properties and conduct its
business as described in the Prospectus;
22
(ii) chello broadband N.V. ("Chello") has been duly
incorporated as a public company with limited
liability and is validly existing under the laws of
The Netherlands. Chello has the corporate power and
authority to own its properties and conduct its
business as described in the Prospectus;
(iii) Priority Telecom N.V. ("Telecom") has been duly
incorporated as a public company with limited
liability and is validly existing under the laws of
The Netherlands. Telecom has the corporate power and
authority to own its properties and conduct its
business as described in the Prospectus;
(iv) The Company has an authorized share capitalization as
set forth in the Prospectus. All of the issued shares
of capital stock of the Company (including the Shares
being delivered at such Time of Delivery) have been
duly and validly authorized and issued and are fully
paid and non-assessable; according to information
from the listing agent and confirmation thereof from
the Amsterdam Stock Exchange, all of the shares of
Stock (including the Shares) have been provisionally
listed and admitted for trading on the Amsterdam
Stock Exchange; the holders of outstanding shares of
capital stock of the Company are not entitled to
preemptive or other rights to acquire the Shares to
be purchased from the Company under the Underwriting
Agreement which have not been complied with; the
Shares may be freely deposited by the Company with
the Depositary against issuance of ADRs evidencing
ADSs; the Shares are freely transferable by the
Company to or for the account of the several
Underwriters in the manner contemplated in the
Underwriting Agreement and the initial purchasers
thereof; there are no restrictions on subsequent
transfers of the Shares except as described in the
Prospectus under the caption "Shares Eligible for
Future Sale"; and the Shares conform to the
description thereof contained in the Prospectus;
(v) All Governmental Authorizations of and with any
Governmental Agency in The Netherlands for the Shares
to be duly and validly authorized and issued have
been obtained or made and are in full force and
effect;
(vi) The Company has the corporate power to enter into the
Underwriting Agreement and the Deposit Agreement and
to perform its obligations thereunder;
(vii) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company and constitutes
a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with
its terms;
(viii) The Deposit Agreement has been duly authorized,
executed and delivered by
23
the Company and constitutes a valid and legally
binding agreement of the Company, enforceable in
accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency,
reorganization and similar laws of general
applicability relating to or affecting creditors'
rights and to general equity principles;
(ix) The issue and sale of the Shares being delivered at
such Time of Delivery and the deposit of the Shares
being deposited by the Company with the Depositary
against issuance of the ADRs evidencing the ADSs to
be delivered at such Time of Delivery and the
compliance by the Company with all of the provisions
of the Underwriting Agreement and the Deposit
Agreement and the consummation of the transactions
contemplated herein and therein will not conflict
with or result in a breach or violation of any of the
terms or provisions of the Articles of Association of
the Company or the provisions of any published law,
rule or regulation in The Netherlands;
(x) No Governmental Authorization of or with any
Governmental Agency is required in The Netherlands
for the issue and sale of the Shares by the Company,
the deposit of the Shares being deposited by the
Company with the Depositary against issuance of the
ADRs evidencing the ADSs to be delivered at such Time
of Delivery or the consummation by the Company of the
transactions contemplated by the Underwriting
Agreement except for (i) notice requirements to the
Netherlands Central Bank pursuant to the Act on
Foreign Financial Relations (Wct Financiele
Betrekkingen Buitenland) and regulations promulgated
thereunder; (ii) publication and/or notice
requirements, to the extent applicable, pursuant to
the Act on Disclosure of Holdings in Listed Companies
(Wet melding zeggenschap in ter beurze genoteerde
vennootschappen 1996); (iii) registration
requirements in respect of the Shares with the
competent Trade Register and (iv) such as have been
obtained or made and are in full force and effect;
however, non-observance of these notice and
registration requirements does not render the
Underwriting Agreement void, nor does it affect the
legality, validity or enforceability of the
Underwriting Agreement, the obligations of the
Company thereunder or the validity of the Firm
Shares;
(xi) The statements in the Prospectus under the captions
"Enforcement of Civil Liabilities," "Regulation,"
"Description of Share Capital" and "Summary of
Additional Material Provisions of the Articles of
Association and Other Matters," to the extent such
statements relate to matters of Netherlands law or
regulation or to the provisions of documents therein
described, are true and accurate in all material
respects, and nothing has been omitted from such
statements which would make the same misleading in
any material respect;
24
(xii) The opinions of such counsel set forth in the
Prospectus under "Enforcement of Civil Liabilities"
are confirmed as of such Time of Delivery;
(xiii) 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 The Netherlands or to any political
subdivision or taxing authority thereof or therein in
connection with (A) the deposit with the Depositary
of Shares in accordance with the provisions of the
Deposit Agreement by the Company against issuance of
ADRs evidencing ADSs in respect thereof, (B) the sale
and delivery by the Company of the Shares to or for
the respective accounts of the Underwriters or (C)
the sale and delivery outside The Netherlands by the
Underwriters of the Shares to the initial purchasers
thereof in the manner contemplated in the
Underwriting Agreement;
(xiv) The appointment by the Company of CT Corporation
System, New York, New York to act as agent for
service of process relating to any proceeding before
a New York court on behalf of the Company is valid
and binding under the laws of The Netherlands,
provided that, if such designation will be deemed to
constitute a power of attorney (volmacht) or a
mandate (lastgeving), it will under Netherlands law
terminate by operation of law, and without notice,
upon insolvency or bankruptcy of the Company, and
service of process effected in the manner set forth
in the Underwriting Agreement will be effective,
insofar as the laws of The Netherlands are concerned,
to confer valid personal jurisdiction over the
Company subject to the limitations set forth in
paragraph (xvii) of this opinion;
(xv) The choice in Section 14 of the Underwriting
Agreement of the laws of the State of New York as the
law governing the Underwriting Agreement is valid and
binding on the Company under the laws of The
Netherlands, except (i) to the extent that any term
of the Underwriting Agreement or any provision of New
York law applicable to the Underwriting Agreement is
manifestly incompatible with the public policy of The
Netherlands, and (ii) a Netherlands court may give
effect to mandatory rules of the laws of another
jurisdiction (including The Netherlands) with which
the matter under review has a close connection, if
and insofar as, under the laws of such other
jurisdiction those rules must be applied,
irrespective of the governing law chosen by the
parties; the Company can xxx and be sued in its own
name under the laws of The Netherlands; the
irrevocable submission of the Company to the
exclusive jurisdiction of a New York Court, the
waiver by the Company of any objection to the venue
of a proceeding of a New York Court and the agreement
of the Company that the Underwriting Agreement shall
be governed by and construed in accordance with the
laws of the State
25
of New York are legal, valid and binding; service of
process effected in the manner set forth in Section
14 of the Underwriting Agreement will be effective,
insofar as the law of the Netherlands is concerned,
to confer valid personal jurisdiction over the
Company; and judgment obtained in a New York Court
arising out of or in relation to the obligations of
the Company under the Underwriting Agreement would be
enforceable against the Company in the courts of The
Netherlands. The indemnification and contribution
provisions set forth in Section 8 of the Underwriting
Agreement do not contravene the public policy or laws
of The Netherlands.
(xvi) Insofar as matters of Netherlands law are concerned,
the Registration Statement and the filing of the
Registration Statement with the Commission have been
duly authorized by and on behalf of the Company; and
the Registration Statement has been duly executed
pursuant to such authorization by and on behalf of
the Company;
(xvii) The consent to jurisdiction as provided in the
Underwriting Agreement is valid and binding upon the
Company under the laws of The Netherlands, insofar as
such law is applicable, provided, however, that such
consent will not be given effect with respect to: (1)
a claim the amount of which does not exceed NLG
10,000; (2) certain specified labor and
tenancy-related disputes; and (3) claims for
provisional measures before the president of a
competent court of the Netherlands; and
(xviii) In the absence of an applicable convention between
the United States and the Netherlands, a judgment
rendered by a United States court will not be
enforced by the courts of The Netherlands. In order
to obtain a judgment which is enforceable in the
Netherlands the claim must be relitigated before a
competent Netherlands court. Any judgment rendered by
a New York court pursuant to the Underwriting
Agreement, will, under current practice, be
recognized by a Netherlands court (i) if that
judgment results from proceedings compatible with
Netherlands concepts of due process, and (ii) if that
judgment does not contravene public policy of The
Netherlands. If the judgment is recognized by a
Netherlands court, that court will generally grant
the same claim without relitigation on the merits.
(f) Xxxxx X. Tuijten, General Counsel of the Company, shall have
furnished to you his written opinion, dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and
is validly existing as a public limited
liability company under the laws of The
Netherlands, with power and authority
(corporate and other) to own its properties
26
and conduct its business as described in the
Prospectus;
(ii) The Company has an authorized capitalization
as set forth in the Prospectus, and all of
the issued shares of capital stock of the
Company (including the Shares being
delivered at such Time of Delivery) have
been duly and validly authorized and issued
and are fully paid and non-assessable; all
of the shares of Stock (including the
Shares) have been provisionally listed and
admitted for trading on the Amsterdam Stock
Exchange; the holders of outstanding shares
of capital stock of the Company are not
entitled to preemptive or other rights to
acquire the Shares to be purchased from the
Company under this Agreement which have not
been complied with; the Shares may be freely
deposited by the Company with the Depositary
against issuance of ADRs evidencing ADSs;
the Shares are freely transferable by the
Company to or for the account of the several
Underwriters in the manner contemplated
herein and (to the extent described in the
Prospectus) the initial purchasers thereof;
there are no restrictions on subsequent
transfers of the Shares except as described
in the Prospectus under the captions "Shares
Eligible for Future Sale" and "Description
of American Depositary Shares"; and the
Shares conform to the description of the
Stock contained in the Prospectus;
(iii) All Governmental Authorizations of or with
any Governmental Agency in The Netherlands
required for the Shares to be duly and
validly authorized and issued have been
obtained or made and are in full force and
effect;
(iv) The Deposit Agreement has been duly
authorized, executed and delivered by the
Company;
(v) The Company has been duly qualified for the
transaction of business outside The
Netherlands and is in good standing under
the laws of each other jurisdiction in which
it owns or leases properties or conducts any
business so as to require such
qualification, or is subject to no material
liability or disability by reason of the
failure to be so qualified in any such
jurisdiction (such counsel being entitled to
rely in respect of the opinion in this
clause upon opinions of local counsel and in
respect of matters of fact upon certificates
of officers of the Company, provided that
such counsel shall state that he believes
that both you and he are justified in
relying upon such opinions and
certificates);
27
(vi) Each subsidiary of the Company has been duly
incorporated and is validly existing as a
corporation in good standing under the laws
of its jurisdiction of incorporation; and
all of the issued shares of capital stock of
each such subsidiary have been duly and
validly authorized and issued, are fully
paid and non-assessable, and (except for
directors' qualifying shares and except as
otherwise set forth in the Prospectus) are
owned directly or indirectly by the Company,
free and clear of all liens, encumbrances,
equities or claims (such counsel being
entitled to rely in respect of the opinion
in this clause upon opinions of local
counsel and in respect of matters of fact
upon certificates of officers of the Company
or its subsidiaries, provided that such
counsel shall state that he believes that
both you and he are justified in relying
upon such opinions and certificates);
(vii) The Company and its subsidiaries have good
and marketable title to all material real
property owned by them, in each case free
and clear of all liens, encumbrances and
defects except such as are described in 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 do not have a
material adverse effect on the Company and
its subsidiaries taken as a whole and do not
interfere with the use made and proposed to
be made of such property and buildings by
the Company and its subsidiaries (in giving
the opinion in this clause, such counsel may
state that no examination of record titles
for the purpose of such opinion has been
made, and that he is relying upon a general
review of the titles of the Company and its
subsidiaries, upon opinions of local counsel
and abstracts, reports and policies of title
companies rendered or issued at or
subsequent to the time of acquisition of
such property by the Company or its
subsidiaries, upon opinions of counsel to
the lessors of such property and, in respect
of matters of fact, upon certificates of
officers of the Company or its subsidiaries,
provided that such counsel shall state that
he believes that both you and he are
justified in relying upon such opinions,
abstracts, reports, policies and
certificates);
(viii) To the best of such counsel's knowledge and
other than as set forth in the Prospectus,
there are no legal or governmental
proceedings pending to which the Company or
any of its subsidiaries is a party or of
which any property of the Company or any of
its subsidiaries is the subject which, if
determined adversely to the Company or any
of its
28
subsidiaries, would individually or in the
aggregate have a material adverse effect on
the current or future consolidated financial
position, shareholders' equity or results of
operations of the Company and its
subsidiaries; and, to the best of such
counsel's knowledge, no such proceedings are
threatened or contemplated by any
Governmental Agency or threatened by others;
(ix) This Agreement has been duly authorized,
executed and delivered by the Company;
(x) The issue (as applicable) and sale of the
Shares to be sold by the Company at such
Time of Delivery and the deposit of the
Shares being deposited with the Depositary
in accordance with the provisions of the
Deposit Agreement against issuance of the
ADRs evidencing the ADSs in respect thereof
to be delivered at such Time of Delivery and
the compliance by the Company with all of
the provisions of this Agreement and the
Deposit Agreement and the consummation of
the transactions herein and therein
contemplated will not conflict with or
result in a breach or violation of any of
the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed
of trust, loan agreement, lease or other
agreement or instrument to which the Company
or any of its subsidiaries is bound or to
which any of the property or assets of the
Company or any of its subsidiaries is
subject, nor will such action result in any
violation of the provisions of the Articles
of Association of the Company or any
statute, other applicable law or any order,
rule or regulation of any Governmental
Agency having jurisdiction over the Company
or any of its subsidiaries or any of their
properties except, with respect in any such
case to the subsidiaries of the Company, as
would not, singly or in the aggregate, have
a material adverse effect on the Company and
its subsidiaries taken as a whole;
(xi) No Governmental Authorization of or with any
Governmental Agency required in The
Netherlands for the issue and sale of the
Shares by the Company, the deposit of the
Shares being deposited with the Depositary
in accordance with the provisions of the
Deposit Agreement against issuance of ADRs
evidencing the ADSs in respect thereof to be
delivered at such Time of Delivery by the
Company or the consummation by the Company
of the transactions contemplated by this
Agreement;
(xii) Other than as set forth in the Prospectus,
the Company and each of its subsidiaries
have all licenses, franchises, permits,
authorizations,
29
approvals and orders and other concessions
of and from all Governmental Agencies that
are necessary to own or lease their other
properties and conduct their current
businesses as described in the Prospectus,
with such exceptions as would not,
individually or in the aggregate, have a
material adverse effect on the current or
future financial consolidated financial
position, shareholders' equity or results of
operations of the Company and its
subsidiaries taken as a whole;
(xiii) Neither the Company nor any of its
subsidiaries is in violation of its articles
of association and, further the Company is
not in material default in the performance
of any obligation, agreement or condition
contained in any permit or any bond, note,
debenture or other evidence of indebtedness,
except where such violation would not have a
material adverse effect on the condition
(financial or other), business, properties,
prospects, net worth or results of
operations of the Company and its
subsidiaries taken as a whole;
(xiv) The Company is not in violation of any law,
ordinance, administrative or governmental
rule or regulation of The Netherlands
applicable to the Company or of any decree
of any Dutch court or Dutch governmental
agency, in each case, except where such
violation would not have a material adverse
effect on the condition (financial or other)
business, properties, net worth or results
of operations of the Company and its
subsidiaries taken as a whole. There are no
pending formal complaints, proceedings,
investigations, protests, petitions or other
written objections against the Company at
any Dutch regulatory agencies, in a court,
before any arbitrator or mediator, or before
any other governmental authority, except for
matters which individually or in the
aggregate would not have a material adverse
effect on the condition (financial or
other), business, properties, prospects, net
worth or results of operations of the
Company and its subsidiaries taken as a
whole; and
(xv) The statements set forth in the Prospectus
under the captions "Description of Share
Capital" and "Description of American
Depositary Shares", insofar as they purport
to constitute a summary of the terms of the
Stock and ADSs, respectively, and under the
captions "Taxation" and "Underwriting",
insofar as they purport to describe the
provisions of the laws and documents
referred to therein, are accurate, complete
and fair; and
(xvi) Although he does not assume any
responsibility for the accuracy,
30
completeness or fairness of the statements
contained in the Registration Statement or
the Prospectus, except for those referred to
in the opinion in subsection (xv) of this
Section 7(e), he has no reason to believe
that, as of its effective date, the
Registration Statement or any further
amendment thereto made by the Company prior
to such Time of Delivery (other than the
financial statements and related schedules
therein, as to which such counsel need
express no opinion) contained an 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 or that, as of its
date, the Prospectus or any further
amendment or supplement thereto made by the
Company prior to such Time of Delivery
(other than the financial statements and
related schedules therein, as to which such
counsel need express no opinion) contained
an untrue statement of a material fact or
omitted to state a material fact necessary
to make the statements therein, in the light
of the circumstances under which they were
made, not misleading or that, as such Time
of Delivery, either the Registration
Statement or the Prospectus or any further
amendment or supplement thereto made by the
Company prior to such Time of Delivery
(other than the financial statements and
related schedules therein, as to which such
counsel need express no opinion) contains an
untrue statement of a material fact or omits
to state a material fact necessary to make
the statements therein, in the light of the
circumstances under which they were made,
not misleading.
In giving such opinion, such counsel may state that with
respect to all matters of United States federal and New York law he has relied
upon the opinions of United States counsel for the Company delivered pursuant to
paragraph (d) of this Section 7;
(g) O.T. Xxxxxxx, General Counsel of United Telekabel Holding N.V.,
shall have furnished to you his written opinion, dated such Time of
Delivery, in form and substance satisfactory to you;
31
(h) With respect to the jurisdictions in which certain of the Company's
subsidiaries and certain of the New Acquisition Entities operate,
listed on Schedule II hereto, you shall have had furnished to you
written opinions dated such Time of Delivery, in the form previously
provided to you, from the special foreign counsel listed on Schedule
II, in form and substance satisfactory to you.
(i) Houthoff Buruma, Netherlands counsel for the Company, shall have
furnished to you their written opinion, dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) Each of United TeleKabel Holding N.V., A2000
Holding N.V. and GelreVision Holding B.V.
(the "Dutch Subsidiaries") has been duly
incorporated and is validly existing under
the laws of The Netherlands as a public
limited liability company, or, in the case
of GelreVision Holding B.V., a private
limited liability company, and is in good
standing under the laws of The Netherlands,
with the power and authority (corporate and
other) to own, lease and operate its
properties and to conduct its business as
described in the Prospectus;
(ii) All of the issued and outstanding shares of
the Dutch Subsidiaries have been duly and
validly authorized and issued and are fully
paid and non-assessable and (except for
directors' qualifying shares and as
otherwise set forth in the Prospectus) are
owned of record by the Company, directly or
indirectly, free and clear, to the best
knowledge of such counsel after reasonable
inquiry, of any security interest, lien,
encumbrance, equity or other claim;
(iii) The Company's ownership interest with
respect to the Dutch Subsidiaries is as
described in the Prospectus;
(iv) The issued and outstanding shares of the
Company consist of 129,246,123 ordinary
shares A and 100 priority shares, par value
Euro 0.30 per share, of which 77,087,469
ordinary shares A and 100 priority shares
are held of record by UIH Europe, Inc. The
issued and outstanding shares of A2000
Holding N.V. consists of 2,002 shares, par
value NLG 100 per share, of which 1,001
shares are held of record by United
TeleKabel Holding N.V.;
(v) None of the Dutch Subsidiaries is in
violation of its respective certificate or
articles of incorporation or bylaws, or
other organizational documents; to the best
knowledge of such counsel
32
after reasonable inquiry, none of the Dutch
Subsidiaries is in material default in the
performance of any obligation, agreement or
condition contained in any permit or any
bond, debenture, note or other evidence of
indebtedness, except as may be disclosed in
the Prospectus;
(vi) None of the issue and sale of the Shares to
be sold by the Company under the
Underwriting Agreement, the deposit of the
Shares with the Depositary in accordance
with the provisions of the Deposit Agreement
against issuance of the ADRs evidencing the
ADSs in respect thereof and compliance by
the Company with all of the provisions of
the Underwriting Agreement and the Deposit
Agreement and the consummation by the
Company of the transactions contemplated
thereby, including the use of proceeds,
conflicts or will conflict with or
constitutes or will constitute a breach of,
or a default under, the certificate or
articles of incorporation or bylaws, or
other organizational documents, of the Dutch
Subsidiaries or any license, concession,
franchise, other governmental authorization,
agreement, indenture, lease or other
instrument to which any of the Dutch
Subsidiaries is a party or by which any of
them or any of their respective properties
is bound that is known to such counsel after
reasonable inquiry, or, to the best
knowledge of such counsel after reasonable
inquiry, will result in the creation or
imposition of any material lien, charge or
encumbrance upon any property or assets of
the Dutch Subsidiaries nor will any such
action result in any violation of any
existing law, regulation, ruling, judgment,
injunction, order or decree known to such
counsel after reasonable inquiry, applicable
to any of the Dutch Subsidiaries or any of
their respective properties, except where
such violation would not have a material
adverse effect on the current or future
consolidated financial position,
shareholders' equity or results of
operations of the Dutch Subsidiaries taken
as a whole (a "Material Adverse Effect");
(vii) To the best of our knowledge and other than
as set forth in the Prospectus, there are no
legal or governmental proceedings, or
legislation or regulations pending to which
the Dutch Subsidiaries are a party or of
which any property of the Dutch Subsidiaries
is the subject which, if determined
adversely to the Dutch Subsidiaries or
enacted, as the case may be, would
individually or in the aggregate have a
Material Adverse Effect;
(viii) Each of the Dutch Subsidiaries has all
necessary licenses, concessions, franchises
and other governmental authorizations,
33
certificates and other agreements with
governmental entities, and has filed all
required notifications (collectively
referred to as "Governmental Approvals")
necessary for the operation of their
currently conducted businesses in The
Netherlands as described in the Prospectus.
All Governmental Approvals granted to the
Dutch Subsidiaries are validly held, remain
in full force and effect, and have not been
revoked, suspended, cancelled or modified in
any adverse way, and are not subject to any
conditions or requirements that are not
generally imposed upon the holders of such
Governmental Approvals. The Dutch
Subsidiaries have taken all steps necessary
to preserve their rights to seek renewals of
their Governmental Approvals;
(ix) To the best knowledge of such counsel after
reasonable enquiry, the Dutch Subsidiaries
are not in violation of, or in default
under, any statute of The Netherlands or any
applicable governmental or administrative
rule, regulation or requirement, any
Governmental Approval, or any decree of any
court or governmental agency or body having
jurisdiction over the Dutch Subsidiaries,
applicable to the Dutch Subsidiaries, except
for matters which, individually or in the
aggregate, would not have a Material Adverse
Effect. There are no pending formal
complaints, proceedings, investigations,
protests, petitions or other written
objections against the Dutch Subsidiaries at
[name regulatory agency], in a court, before
any arbitrator or mediator, or before any
other governmental authority, except for
matters which, individually or in the
aggregate, would not have a Material Adverse
Effect;
(x) No consent, approval, authorization or other
order of, or registration or filing with any
Dutch court, or any national regulatory or
governmental body, administrative agency or
official of The Netherlands is required for
the execution, delivery or performance of
the Underwriting Agreement and the Deposit
Agreement with respect to the Company and
the Dutch Subsidiaries or consummation of
the transactions contemplated thereby. The
Company's execution and delivery of, and its
performance of its obligations under, the
Underwriting Agreement and the Deposit
Agreement, and the consummation of the
transactions contemplated thereby, do not
violate or conflict with any judgement,
decree, order, statute, rule or regulation
of any governmental agency or body having
jurisdiction over the Dutch Subsidiaries
relating to the currently conducted
businesses of the Dutch Subsidiaries and
will not cause any cancellation,
termination, revocation, forfeiture or
material
34
impairment of any of their Governmental
Approvals or prevent the Company and the
Dutch Subsidiaries from conducting their
respective currently conducted businesses as
described in the Prospectus; and
(xi) Insofar as the statements included in the
Prospectus purport to describe or summarize
(i) contracts, agreements, Governmental
Approvals, litigation, complaints,
arbitration, mediation or other legal
documents to which the Dutch Subsidiaries
are a party or are bound or (ii) the
provisions of statutes, laws, rules,
regulations, orders, judgments, decrees or
pending legislation or regulations relating
to regulation in The Netherlands of the
respective currently conducted businesses of
the Company, the Dutch Subsidiaries, such
statements are accurate and complete in all
material respects.
(j) Counsel for the Depositary shall have furnished to you their
written opinion, dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Deposit Agreement has been duly
authorized, executed and delivered by the
Depositary and constitutes a valid and
legally binding obligation of the
Depositary, enforceable in accordance with
its terms, subject as to enforcement to
bankruptcy, insolvency, reorganization and
similar laws of general applicability
relating to or affecting creditors' rights
and to general equity principles; and
(ii) The ADRs issued under and in accordance with
the provisions of the Deposit Agreement to
evidence ADSs will entitle the holders
thereof to the rights specified therein and
in the Deposit Agreement, assuming that (A)
the Shares represented by the ADSs which are
in turn evidenced by the ADRs have been duly
authorized and validly issued and are fully
paid and nonassessable and that any
preemptive rights with respect to the Shares
have been validly waived or exercised and
(B) such Shares have been duly deposited
with Citibank, N.A., Amsterdam as Custodian,
in each case under and in accordance with
all applicable laws and regulations;
(k) On the date of the Prospectus of a time prior to the execution of
this Agreement, at 2:30 p.m., London time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at each Time of Delivery, Xxxxxx
Xxxxxxxx, s.r.o., Pricewaterhouse Coopers N.V., Pricewaterhousecoopers
(France), Pricewaterhousecoopers (Malta), Pricewaterhousecoopers
(Sweden), KPMG Polska Sp. zo.o, KPMG Accountants N.V., KPMG
Somekhchaikis, KPMG Slovensko s.r.o., VB Deloitte & Touche, Ernst &
Xxxxx X.X, Xxxxx & Xxxxx (Netherlands), Ernst & Young
00
(Xxxxxxx), Xxxxx & Young AB, Ernst & Young, Xxxxxx et Associes shall
each have furnished to you a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to you;
(l) (i) None of the Company, its subsidiaries or the New Acquisition
Entities shall have sustained since the date of the latest audited
financial statements included in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus
there shall not have been: (x) any change in the capital stock of the
Company, or (y) an increase in the long-term debt of the Company or any
of its subsidiaries, or, to the best of the Company's knowledge after
due inquiry, the New Acquisition Entities, in excess of $25,000,000 or
its equivalent, or (z) any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, condition (financial or otherwise),
shareholders' equity or results of operations of the Company, its
subsidiaries and the New Acquisition Entities, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is
in the judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(m) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act, and (ii)
no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities;
(n) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange, the NASDAQ, the
Luxembourg Stock Exchange or the Amsterdam Stock Exchange and/or the
London Stock Exchange; (ii) a suspension or material limitation in
trading in the Company's securities on the NASDAQ or the Amsterdam
Stock Exchange; (iii) a general moratorium on commercial banking
activities in New York, London or Amsterdam declared by the relevant
authorities; (iv) a change or development involving a prospective
change in Dutch taxation affecting the Company, the Shares or the
transfer thereof or the imposition of exchange controls by the United
States or The Netherlands; (v) the outbreak or escalation of
hostilities involving the United States, the United Kingdom or The
Netherlands or the declaration by the United States, the United Kingdom
or The Netherlands of a national emergency or war, if the effect of any
such event specified in this clause (v) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with
36
the public offering or the delivery of the Shares being delivered at
such Time of Delivery on the terms and in the manner contemplated in
the Prospectus; or (vi) the occurrence of any material adverse change
in the existing financial, political or economic conditions in the
United States, the United Kingdom, The Netherlands or elsewhere which,
in the judgment of the Representatives, would materially and adversely
affect the financial markets or the market for the Shares and other
equity securities;
(o) The Shares to be sold by the Company at such Time of Delivery shall
have been duly listed on the Amsterdam Stock Exchange and the ADSs to
be sold by the Company at such Time of Delivery shall have been duly
listed for quotation on NASDAQ;
(p) The Company and the Depositary shall have executed and delivered
the Deposit Agreement and the Depositary shall have furnished or caused
to be furnished to you as at such Time of Delivery certificates
satisfactory to you evidencing the deposit of it of the Shares being so
deposited against issuance of ADRs evidencing the ADSs to be delivered
by the Company at such Time of Delivery, and the execution,
countersignature (if applicable), issuance and delivery of ADRs
evidencing such ADSs pursuant to the Deposit Agreement;
(q) The Company shall have complied with the provisions of subsection
(a)(iii) of Section 5 hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date of
this Agreement;
(r) The Company and Parent shall have furnished or caused to be
furnished to you at such Time of Delivery certificates of officers of
the Company and of Parent (as applicable), respectively, satisfactory
to you, as to the accuracy of the representations and warranties of the
Company herein at and as of such Time of Delivery, as to the
performance by the Company and Parent of all of their respective
obligations hereunder to be performed at or prior to such Time of
Delivery; and as to such other matters as you may reasonably request,
and the Company shall have furnished or caused to be furnished
certificates as to the matters set forth in subsections (a) and (k) of
this Section 7, and as to such other matters as you may reasonably
request;
(s) Xxxxxx Xxxxxxxx shall have furnished you its written opinion, dated
such Time of Delivery, in form and substance to you, to the effect
that:
(i) The statements in the Prospectus under
"Taxation," to the extent such statements
relate to matters of Dutch law or
regulation, are true and accurate in all
material respects, and nothing has been
omitted from such statements that would make
the same misleading in any material respect;
(ii) The opinions of Xxxxxx Xxxxxxxx set forth in
the Prospectus and in
37
the International Prospectus under
"Taxation" are confirmed as of such Time of
Delivery;
(iii) Except to the extent otherwise set forth in
the Prospectus, 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 The Netherlands or to any
political subdivision or taxing authority
thereof or therein in connection with (A)
the deposit with the Depositary of Shares by
the Company against the issuance of ADRs
evidencing the ADSs, (B) the sale and
delivery by the Company of the Shares to or
for the respective accounts of the
Underwriters or (c) the sale and delivery by
the Underwriters of Shares to the initial
purchasers thereof in the manner
contemplated herein; and
(iv) Except to the extent otherwise set forth in
the Prospectus, all dividends and other
distributions declared and payable on the
shares of capital stock of the Company may
under the current laws and regulations of
The Netherlands be paid in euros or Dutch
guilders (including any such dividends or
distributions to be paid to the Depositary)
that may be converted into foreign currency
that may be freely transferred out of The
Netherlands, and all such dividends and
other distributions will not be subject to
withholding or other taxes under the laws
and regulations of The Netherlands and are
otherwise free and clear of any other tax,
withholding or deduction in The Netherlands
and without the necessity of obtaining any
Governmental Authorization in The
Netherlands; and
(t) Xxxxxxx Sachs International and Xxxxxx Xxxxxxx & Co. International
Limited shall have received from Parent an agreement, satisfactory in
form and substance to Xxxxxxx Sachs International and Xxxxxx Xxxxxxx &
Co. International Limited certifying as to the accuracy of certain
information supplied by Parent and contained in the Registration
Statement (which agreement shall contain an indemnity from Parent to
the Underwriters in substantially the form of Section 8 hereof with
respect to losses, claims, damages or liabilities arising in connection
with any such information); and
(u) Xxxxxxx Sachs International and Xxxxxx Xxxxxxx & Co. International
Limited shall have received from the persons who are members of the
Company's Supervisory Board and Management Board as at the date of this
Agreement, an agreement, satisfactory in form and substance to Xxxxxxx
Sachs International and Xxxxxx Xxxxxxx & Co. International Limited,
that such persons agree to be bound by the provisions set forth in
Section 5(v) hereof.
38
8.
(a) The Company and Parent, jointly and severally, will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the ADS Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses
are incurred; provided, however, that the Company and Parent shall not
be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, the ADS
Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the
Representatives expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company and
Parent against any losses, claims, damages or liabilities to which the
Company and Parent may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the ADS
Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, the Registration Statement, the
ADS Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the
Company and Parent for any legal or other expenses reasonably incurred
by the Company and Parent in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be
39
brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (which shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any
legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may
be sought hereunder (whether or not the indemnified party is an actual
or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company and Parent on the one hand and the Underwriters on the
other from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice
required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company and Parent on the
one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Company and Parent on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Shares purchased under this Agreement
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters
with respect to the Shares purchased under this Agreement, in each case
as set forth in the table on the cover page of the U.S. Prospectus. The
relative fault 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 to
information supplied by the Company or Parent on the one hand or the
Underwriters on the other and the parties' relative intent,
40
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, Parent and the Underwriters
agree that it would not be just and equitable if contributions pursuant
to this subsection (d) 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 which does not take account of the equitable
considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include 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 subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages which 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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d)
to contribute are several in proportion to their respective
underwriting obligations and not joint. The Company's and Parent's
obligations in this subsection (d) to contribute are joint and several.
(e) Notwithstanding the foregoing, the liability of Parent in
connection with the indemnification and contribution provisions
contained in subsections (a) and (d) of this Section 8 shall not exceed
the amount, if any, of proceeds from the offering of the Shares
transferred directly or indirectly to Parent or any of its affiliates
by the Company or any of its affiliates in repayment of any
indebtedness of the Company to Parent outstanding, or otherwise.
(f) The obligations of the Company and Parent under this Section 8
shall be in addition to any liability which the Company and Parent may
otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls any Underwriter within the meaning of
the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters
may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any
person who, with his or her consent, is named in the Registration
Statement as about to become a director of the Company) and to each
person, if any, who controls the Company within the meaning of the Act.
9.
(a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery,
you may in your discretion arrange for you or another party or other
parties to purchase such Shares on the terms contained herein. If
within thirty-six hours after such default by any Underwriter you do
not arrange for the
41
purchase of such Shares, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another
party or other parties satisfactory to you to purchase such Shares on
such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the
purchase of such Shares, or the Company notify you that they have so
arranged for the purchase of such Shares, you or the Company shall have
the right to postpone such Time of Delivery for a period of not more
than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in
any other documents or arrangements, and the Company agrees to file
promptly any amendments to the Registration Statement or the Prospectus
which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate number of
such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all of the Shares to be purchased at such Time
of Delivery, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of Shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and,
in addition, to require each non-defaulting Underwriter to purchase its
pro rata share (based on the number of Shares which such Underwriter
agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate number of
such Shares which remains unpurchased exceeds one- eleventh of the
aggregate number of all of the Shares to be purchased at such Time of
Delivery, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of
the Underwriters to purchase and of the Company to sell the Optional
Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company or Parent, except for the
expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company, Parent and the several Underwriters,
as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force
42
and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or the Company, or Parent, or
any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor Parent shall then be under any liability to any
Underwriter except as provided in Sections 6 and 8 hereof; but, if for
any other reason the Shares are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Underwriters
through the Representatives for all out-of-pocket expenses approved in
writing by the Representatives, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations
for the purchase, sale and delivery of the Shares not so delivered, but
the Company and Parent shall then be under no further liability to any
Underwriter in respect of the Shares not so delivered except as
provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by you jointly or by Xxxxxxx Xxxxx
International on behalf of you as the representatives of the
Underwriters.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to you as the representatives in care
of Xxxxxxx Sachs International, Peterborough Court, 000 Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxxx, Attention: Equity Capital Markets; and if to
the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the
Registration Statement, Attention: Chief Executive Officer; and if to
Parent shall be delivered or sent by mail, telex or facsimile
transmission to 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xx, 00000,
U.S.A., Attention: President; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent
by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire or telex
constituting such Questionnaire, which address will be supplied to the
Company or Parent by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and Parent and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter,
and their respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right under or
by virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
43
14. Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any New York
court, (ii) waives, to the fullest extent it may effectively do so, any
objection which it may now or hereafter have to the laying of venue of
any such proceeding and (iii) submits to the exclusive jurisdiction of
such courts in any such suit, action or proceeding. The Company has
appointed CT Corporation System, New York, New York, as its authorized
agent (the "Authorized Agent") upon whom process may be served in any
such action arising out of or based on this Agreement or the
transactions contemplated hereby which may be instituted in any New
York Court by any Underwriter or by any person who controls any
Underwriter, expressly consents to the jurisdiction of any such court
in respect of any such action, and waives any other requirements of or
objections to personal jurisdiction with respect thereto. Such
appointment shall be irrevocable. The Company represents and warrants
that the Authorized Agent has agreed to act as such agent for service
of process and agrees to take any and all action, including the filing
of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent and written notice of such
service to the Company shall be deemed, in every respect, effective
service of process upon the Company.
15. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment
currency") other than United States dollars, the Company and Parent,
jointly and severally, will indemnify each Underwriter against any loss
incurred by such Underwriter as a result of any variation as between
(i) the rate of exchange at which the United States dollar amount is
converted into the judgment currency for the purpose of such judgment
or order and (ii) the rate of exchange at which an Underwriter is able
to purchase United States dollars with the amount of the judgment
currency actually received by such Underwriter. The foregoing indemnity
shall constitute a separate and independent obligation of the Company
and Parent and shall continue in full force and effect notwithstanding
any such judgment or order as aforesaid. The term "rate of exchange"
shall include any premiums and costs of exchange payable in connection
with the purchase of or conversion into United States dollars.
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
18. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and
the same instrument.
44
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters, the
Company and Parent. It is understood that your acceptance of this letter on
behalf of each of the Underwriters is pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Company and Parent for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
United Pan-Europe Communications N.V.
By:
Name:
Title:
UnitedGlobalCom, Inc.
By:
Name:
Title:
45
Accepted as of the date hereof:
Xxxxxxx Xxxxx International
By:
Name:
Title:
Xxxxxx Xxxxxxx & Co. International Limited
By:
Name:
Title:
On behalf of each of the Underwriters
46
SCHEDULE 1
Total number of Firm Number of Optional Shares
Shares to be purchased to be purchased if
maximum option exercised
Underwriter
Xxxxxxx Sachs International
Xxxxxx Xxxxxxx & Co.
International Limited
Xxxxxxxxx, Lufkin & Xxxxxxxx
International
Xxxxxxx Xxxxx International
Salomon Brothers
International Limited
Cazenove & Co.
MeesPierson N.V.
UBS AG, acting through its
division Warburg Dillon
Read
Total
47
SCHEDULE II
1. Belgium - Stibbe Simont Xxxxxxx Duhot
2. Austria - Bruckhaus Mestrick Xxxxxx Xxxxx
3. Israel - Xxxxx Xxxxx & Co
4. Norway - Advokatfirmaet Steenstrup
5. France - Jeantet & Associes
6. France - Nomos
7. Hungary - Squire, Sanders, & Xxxxxxx
8. The Netherlands - Xxxxx & Xxxxxxx/Xxxxx & XxXxxxxx
9. Xxxxxx - Xxxxx & XxXxxxxx
10. USA - Xxxxx & XxXxxxxx
11. UK - Ashurst Xxxxxx Xxxxx
10. Sweden - Xxxxx & Xxxxxxxx
00. Xxxxx Xxxxxxxx and Slovak Republic - Xxxxx Xxxxxxxx
48
ANNEX I
Each Underwriter further represents and agrees that:
1. (i) it has not offered or sold and will not offer or sell any Shares to
persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom within
the meaning of the Public Offers of Securities Regulations 1995, (b) it
has complied, and will comply, with all applicable provisions of the
Financial Services Act of 1986 of Great Britain with respect to
anything done by it in relation to the Shares in, from or otherwise
involving the United Kingdom, and (c) it has only issued or passed on
and will only issue or pass on in the United Kingdom any document
received by it in connection with the issuance of the Shares to a
person who is of a kind described in Article 11(3) of the Financial
Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996
of Great Britain or is a person to whom the document may otherwise
lawfully be issued or passed on.
2. The Shares have not been registered under the Securities and Exchange
law of Japan and are not being offered or sold and may not be offered
or sold, directly or indirectly, in Japan or to or for the account of
any resident of Japan, except (i) pursuant to an exemption from the
registration requirements of the Securities and Exchange law of Japan
and (ii) in compliance with any other applicable requirements of
Japanese law.
49
