Exhibit 10.77
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement, dated February 11, 2003 (this
"Agreement"), is entered into by and among UnitedGlobalCom, Inc., a Delaware
corporation (the "Purchaser") and Capital Research and Management Company
("Capital"), on behalf of The Income Fund of America, Inc. (TIFA"), Capital
World Growth and Income Fund, Inc. ("CWGIF") and Fundamental Investors, Inc.
(together with TIFA and CWGIF, the "Sellers," and each a "Seller").
RECITALS
WHEREAS, United Pan-Europe Communications N.V., incorporated and existing
under the laws of the Netherlands ("UPC") filed a voluntary case under Chapter
11 of title 11 of the United States Code, 11 U.S.C. Sections 101-1330, as
amended, in the United States Bankruptcy Court for the Southern District of New
York (the "US Bankruptcy Court") and has proposed its Second Amended Plan of
Reorganization (the "US Plan");
WHEREAS, the US Bankruptcy Court has approved UPC's Second Amended
Disclosure Statement, dated January 7, 2003, with respect to the US Plan (the
"Disclosure Statement");
WHEREAS, the Purchaser is the majority shareholder of UPC;
WHEREAS, the Sellers are the holders of the aggregate number of Preference
Shares A of UPC, nominal value E1.00 per share (the "Preference Shares") and
warrants to purchase ordinary shares A of UPC, nominal value E1.00 per share
(the "Ordinary Shares"), at an exercise price of E42.546 per Ordinary Share (the
"Warrants," and together with the Preference Shares, the "UPC Securities") set
forth opposite each Seller's name on SCHEDULE 1 attached hereto; and
WHEREAS, the Purchaser and Capital, on behalf of the Sellers, entered into
an agreement, dated December 12, 2002 (the "Letter Agreement") providing for the
Sellers to sell the UPC Securities to the Purchaser in exchange for shares of
the Purchaser's Class A Common Stock, par value $.01 per share (the "UGC
Shares").
NOW, THEREFORE, in consideration of their mutual promises made herein, and
for other good and valuable consideration, receipt of which is hereby
acknowledged by each party, the parties, intending to be legally bound, hereby
agree as follows:
SECTION 1. PURCHASE OF THE UPC SECURITIES. Subject to the terms and
conditions of this Agreement, the Purchaser agrees to purchase and the Sellers
agree, severally and not jointly, to sell to the Purchaser at Closing, the
aggregate number of UPC Securities set forth opposite each Seller's name on
SCHEDULE 1 hereto in exchange
for the number of UGC Shares set forth opposite each Seller's name on SCHEDULE 1
hereto.
SECTION 2. CLOSING. The consummation of the purchase and sale of the UPC
Securities to be purchased hereunder (the "Closing") shall take place at the
offices of the Purchaser on a date mutually agreed upon between the parties, but
in any event within three (3) business days after the satisfaction or waiver of
the conditions set forth herein (such date being referred to herein as the
"Closing Date"). At the Closing:
(a) The Sellers shall transfer title to the Preference Shares to the
Purchaser by delivering to the Purchaser an executed Deed of Purchase and
Transfer attached as EXHIBIT B hereto providing for the transfer of title to the
Purchaser.
(b) The Sellers shall transfer title to the Warrants to the Purchaser
by delivering to the Purchaser an executed Assignment Form attached as EXHIBIT C
hereto providing for the transfer of title to the Purchaser.
(c) The Purchaser shall deliver to the Sellers certificates for the
UGC Shares, in such denominations and registered in such names as set forth in
SCHEDULE 2 hereto.
(i) Each certificate representing the UGC Shares will contain a
legend substantially to the following effect (in addition to any legends
required under applicable securities laws:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS
THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. THE SHARES MAY NOT BE
OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH IS TO BE
ESTABLISHED TO THE SATISFACTION OF THE COMPANY."
SECTION 3. REGISTRATION.
(a) As soon as practicable after the Closing Date but in no event
later than 30 days after the Closing Date (such 30th day, the "Filing
Deadline"), the Purchaser shall file with the Commission a shelf registration
statement pursuant to Rule 415 under the Securities Act of 1933, as amended (the
"Securities Act"), or amend an existing registration statement (the "Shelf
Registration Statement"), providing for the registration of all of the UGC
Shares, and shall use its reasonable best efforts to cause
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such Shelf Registration Statement to become effective on or prior to 120 days
after the Closing Date (such 120th day, the "Effectiveness Deadline").
(b) No Seller may include any of its UGC Shares in any Shelf
Registration Statement pursuant to this Agreement unless and until such Seller
(i) agrees to be named as a selling stockholder in the related Prospectus and to
deliver a Prospectus to purchasers and (ii) furnishes to the Purchaser in
writing, certain representations and information with respect to itself and the
proposed distribution by it as shall be necessary in order to assure compliance
with Federal and applicable state securities laws in connection with the Shelf
Registration Statement in order to have its UGC Shares included in the Shelf
Registration Statement. Each Seller agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Purchaser by such Seller not materially misleading. The
Purchaser may exclude from such registration the UGC Shares of any Seller that
fails to furnish such information within a reasonable time after receiving such
request.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to the Sellers as follows:
(a) ORGANIZATION; POWERS. The Purchaser is (i) duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (ii) has all requisite corporate power and authority to own its
property and assets and (iii) has the corporate power and authority to execute,
deliver and perform its obligations under this Agreement.
(b) AUTHORIZATION. The execution, delivery and performance by the
Purchaser of this Agreement (a) have been duly authorized by all requisite
corporate action on the part of the Purchaser and (b) do not and will not (i)
violate any laws or regulations applicable to the Purchaser, the certificate or
bylaws of the Purchaser or any order, judgment or decree of any court or other
agency of government binding on the Purchaser, (ii) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default or
event of default under any contract, lease, instrument, indenture, note or other
agreement of or binding upon the Purchaser, (iii) result in or require the
creation or imposition of any lien upon any of the properties or assets of the
Purchaser, or (iv) require any approval of stockholders or any approval or
consent of any person under any contract, lease, instrument, indenture, note or
other agreement of or binding upon the Purchaser, except for such approvals or
consents which have been obtained on or before the date hereof or approvals or
consents of which the failure to obtain would not have a material adverse effect
on (1) the business, financial condition or results of operations of the
Purchaser or (2) the Purchaser's ability to perform its obligations under this
Agreement.
(c) ENFORCEABILITY. This Agreement has been duly executed and
delivered by the Purchaser and constitutes a legal, valid and binding obligation
of the Purchaser enforceable against the Purchaser in accordance with its terms
except as may
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be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
(d) UGC SHARES. The UGC Shares to be issued pursuant to this
Agreement are duly authorized and, when delivered by the Purchaser pursuant to
this Agreement, will be validly issued, fully paid and nonassessable. No
resolutions to make any distributions out of the equity (vermogen) of the
Purchaser have been adopted, which have not been carried out.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. Each of the
Sellers represents and warrants to the Purchaser as follows:
(a) ORGANIZATION; POWERS. Such party (i) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, and (ii) has the corporate power and authority to execute, deliver
and perform its obligations under this Agreement.
(b) AUTHORIZATION. The execution, delivery and performance by such
party of this Agreement (a) have been duly authorized by all requisite corporate
action on the part of such party and (b) do not and will not violate any laws or
regulations applicable to such party, the certificate or bylaws of such party or
any order, judgment or decree of any court or other agency of government binding
on such party.
(c) ENFORCEABILITY. This Agreement has been duly executed and
delivered by such party and constitutes a legal, valid and binding obligation of
such party enforceable against such party in accordance with its terms except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors' rights generally or by equitable
principles relating to enforceability.
(d) UPC SECURITIES. Sellers own, beneficially and of record, the
aggregate number of Preference Shares and Warrants set forth opposite Sellers'
name on SCHEDULE 1 attached hereto. Sellers did not grant rights to purchase or
otherwise acquire the UPC Securities but to the Purchaser. The UPC Securities
have not been encumbered with an attachment, usufruct and pledge nor have
depositary receipts for the UPC Securities been issued with the Purchaser's
concurrence except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles.
(e) ACCREDITED INVESTOR. Such party is aware that the UGC Shares have
not been registered under the Securities Act or any applicable state securities
laws. Such party understands that the UGC Shares are being offered and exchanged
in reliance upon an exemption from registration under the Securities Act
provided by Section 4(2) of the Securities Act. Such party is an "Accredited
Investor" as that term is defined in Rule 501(a) of the Securities Act. The UGC
Shares are being acquired solely
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for such party's own account, for investment purposes only, and not for any
distribution, subdivision or fractionalization thereof; and such party has no
agreement or other arrangement, formal or informal, with any person or entity to
sell, transfer or pledge any part of the UGC Shares. Such party further
understands that it must bear the economic risk of this investment for an
indefinite period of time because such party cannot resell or otherwise transfer
any part of the UGC Shares unless (i) the UGC Shares are first registered under
the Securities Act and such resale or other transfer complies with all
applicable state securities laws or (ii) exemptions from the requirements of the
Securities Act and all applicable state securities laws are available.
(f) ACCESS TO INFORMATION. Such party has adequate information
concerning the businesses, finances and operations, condition (financial and
otherwise), results of operations, properties, plans and prospects of the
Purchaser to make an informed decision regarding the sale and has independently
and without reliance upon the Purchaser made its own analysis and decision to
sell. Each Seller has been afforded the opportunity to ask questions of the
Purchaser and has received satisfactory answers to any such inquiries.
(g) NEGOTIATED AGREEMENT. The terms of this Agreement were the result
of negotiations between Sellers and the Purchaser, and such party was given the
opportunity to review and comment upon the proposed terms of this Agreement.
(h) DISCLOSURE STATEMENT. Such party has received a copy of the
Disclosure Statement.
SECTION 6. CONDITIONS TO CLOSING.
(a) CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER. The obligations
of the Purchaser to each Seller under this Agreement are subject to the
fulfillment on or before the Closing of each of the following conditions:
(i) The representations and warranties of the Sellers contained
in Section 5 shall be true on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of the
Closing.
(ii) Each of the Sellers shall have performed and complied with
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
(iii) Each of the Sellers shall have executed and delivered a
ballot voting in favor of the US Plan and an EGM proxy substantially in the form
of EXHIBIT A attached hereto.
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(iv) Each of the Sellers shall have executed and delivered a Deed
of Purchase and Transfer substantially in the form of EXHIBIT B attached hereto.
(v) Each of the Sellers shall have delivered to the Purchaser an
executed Assignment Form attached as EXHIBIT C hereto providing for the transfer
of title to the Purchaser.
(b) CONDITIONS TO THE OBLIGATIONS OF THE SELLERS. The obligations of
the Sellers to the Purchaser under this Agreement are subject to the fulfillment
on or before the Closing of each of the following conditions:
(i) The representations and warranties of the Purchaser
contained in Section 4 shall be true on and as of the Closing with the same
effect as though such representations and warranties had been made on and as of
the Closing.
(ii) The Purchaser shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
(iii) The Purchaser shall have executed and delivered a Transfer
Deed substantially in the form of EXHIBIT B attached hereto.
SECTION 7. INDEMNIFICATION. In the event any UGC Shares are included in a
Shelf Registration Statement pursuant to this Agreement:
(a) to the extent permitted by law, the Purchaser will indemnify and
hold harmless each Seller, the officers and directors of each Seller and each
person, if any, who controls each Seller (such persons and entities referred to
as "Seller Indemnified Parties"), against any losses, expenses, damages or
liabilities to which they may become subject under the Securities Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act") or other
federal or state securities laws (a "Loss"), insofar as such Losses (or actions
in respect thereof) arise out of any claim, action or proceeding brought by a
third party arising out of or based upon any of the following statements,
omissions or violations (collectively a "Violation"):
(i) any untrue statement or alleged untrue statement of a
material fact contained in a Shelf Registration Statement under which the UGC
Shares were registered;
(ii) the omission or alleged omission to state in a Shelf
Registration Statement under which the UGC Shares were registered a material
fact required to be stated therein, or necessary to make the statements therein
not misleading; or
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(iii) any violation or alleged violation by the Purchaser of the
Securities Act, the Exchange Act, any federal or state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
federal or state securities law, in each case in connection with the offering
covered by such Shelf Registration Statement;
and the Purchaser will reimburse each Seller Indemnified Party for any legal or
other expenses reasonably incurred by them, as incurred, in connection with
investigating or defending any such Violation; PROVIDED, HOWEVER, that the
indemnity agreement contained in this subsection shall not apply to amounts paid
in settlement of any such Loss, if such settlement is effected without the
consent of the Purchaser, nor shall the Purchaser be liable in any such case for
any such Loss to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written information
furnished expressly for use in connection with such Shelf Registration Statement
by each Seller Indemnified Party; and PROVIDED FURTHER, that the Purchaser will
not be liable for the reasonable legal fees and expenses of more than one
counsel to all of the Seller Indemnified Parties.
(b) to the extent permitted by law, each Seller will, severally and
not jointly, indemnify and hold harmless the Purchaser, each of its directors,
each of its officers who have signed the Shelf Registration Statement, and each
person, if any, who controls the Purchaser within the meaning of the Securities
Act (such persons and entities referred to as "Purchaser Indemnified Parties")
against any Losses to which such Purchaser Indemnified Parties may become
subject under the Securities Act, the Exchange Act or other federal or state
securities laws, insofar as such Losses (or actions in respect thereto) arise
out of or are based upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by each Seller expressly for use in connection
with such Shelf Registration Statement; and each Seller will reimburse any legal
or other expenses reasonably incurred by such Purchaser Indemnified Parties in
connection with investigating or defending any such Violation; PROVIDED,
HOWEVER, that the indemnity agreement contained in this subsection shall not
apply to amounts paid in settlement of any such Loss if such settlement is
effected without the consent of each Seller; PROVIDED FURTHER, that each Seller
shall not be liable for the reasonable legal fees and expenses of more than one
counsel to the Purchaser Indemnified Parties; and provided further, that the
total amounts payable in indemnity by each Seller under this subsection in
respect of any Violation shall not exceed the proceeds received by each Seller
in the registered offering out of which such Violation arises.
(c) promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim for indemnification in respect thereof
is to be made against any indemnifying party under this Section, deliver to the
indemnifying party a written notice of the commencement of such an action and
the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires,
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jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel selected by the indemnifying party and reasonably
acceptable to a majority in interest of the indemnified parties; PROVIDED,
HOWEVER, that an indemnified party shall have the right to retain its own
counsel, with the reasonable fees and expenses to be paid by the indemnifying
party, if the indemnified party has been advised in writing by counsel that
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual conflict of interests
between such indemnified party and any other party represented by such counsel
in such proceeding. The failure to deliver written notice to the indemnifying
party within a reasonable time of the commencement of any such action shall
relieve such indemnifying party of liability to the indemnified party under this
Section to the extent such delay caused material prejudice to the indemnified
party, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section.
(d) the foregoing indemnity agreements of the Purchaser and Sellers
are subject to the condition that, insofar as they relate to any Violation made
in a preliminary prospectus but eliminated or remedied in the amended prospectus
on file with the Securities Exchange Commission (the "Commission") at the time
the Shelf Registration Statement in question becomes effective or in the amended
prospectus filed with the Commission pursuant to Rule 424(b) of the Commission
(the "Final Prospectus"), such indemnity agreements shall not inure to the
benefit of any person if a copy of the Final Prospectus was furnished in a
timely manner to the indemnified party and was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act.
(e) the obligations of the Purchaser and the Sellers under this
Section shall survive the completion of any offering of UGC Shares in a Shelf
Registration Statement, and otherwise.
SECTION 8. TERMINATION OF LETTER AGREEMENT. Upon execution of this
Agreement by the parties hereto, all rights and obligations of the parties under
the Letter Agreement shall be terminated.
SECTION 9. CONFIDENTIALITY. Except as required by law (including the
Purchaser's disclosure obligations under Section 13(d) of the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder and any disclosures required to be made in connection with the
restructuring of UPC), the Purchaser and the Sellers, on behalf of themselves
and their representatives, agree to keep strictly confidential all terms of this
Agreement and the transactions contemplated hereby.
SECTION 10. SPECIFIC PERFORMANCE. Each of the parties hereto acknowledges
and agrees that the other parties hereto would be irreparably damaged in the
event any of the provisions of this Agreement were not performed in accordance
with
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their specific terms or were otherwise breached. Accordingly, each of the
parties hereto agrees that each of the other parties hereto shall be entitled to
an injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically this Agreement and the terms and
provisions hereof in any action instituted in any court of the United States or
any state thereof having subject matter jurisdiction, in addition to any other
remedy to which any party hereto may be entitled, at law or in equity.
SECTION 11. SEVERABILITY. If any provision of this Agreement shall have
been determined to be unenforceable by a court of competent jurisdiction or as a
result of binding arbitration, such provision shall, as to such jurisdiction, be
ineffective to the extent of such unenforceability, without invalidating the
remaining provisions hereof, the other provisions of this Agreement shall
nonetheless remain in full force and effect, and such unenforceability in any
jurisdiction shall not render unenforceable such provision in any other
jurisdiction.
SECTION 12. TIMING. Each of the parties hereto agrees that time shall be of
the essence for all purposes of this Agreement.
SECTION 13. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
SECTION 14. JURISDICTION. Each party hereto irrevocably submits to the
non-exclusive jurisdiction of any New York State or Federal court sitting in the
city of New York over any suit, action or proceeding arising out of or relating
to this Agreement or any other documents, agreements or instruments contemplated
by or referred to herein or the transactions contemplated hereby or the
enforcement of any of the terms hereof of any such other documents, agreements
or instruments. To the fullest extent it may effectively do so under applicable
law, each party hereto irrevocably waives and agrees not to assert, by way of
motion, as a defense or otherwise, any claim that it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding brought in any
such court and any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum.
SECTION 15. WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
UNDER OR OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING HERETO OR
THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED HEREBY. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of the transactions
contemplated hereby, including, and without limitation, contract claims, tort
claims, breach of duty claims, and other common law and statutory claims.
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SECTION 16. EFFECTIVENESS; COUNTERPARTS. This Agreement shall become
effective upon execution and delivery of a counterpart hereto by the Purchaser
and each Seller. This Agreement shall be executed in any number of counterparts
and by the different parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same agreement. Delivery of a
counterpart hereof by facsimile shall be effective as delivery of a manually
signed counterpart hereof.
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IN WITNESS WHEREOF, the parties to this Agreement have executed or caused
this Agreement to be executed by their duly authorized officers as of the day
and year first written above.
UNITEDGLOBALCOM, INC.
By: /s/ XXXXXXXXX XXXXXXXXX III
----------------------------
Name: Xxxxxxxxx Xxxxxxxxx III
Title: Chief Financial Officer
CAPITAL RESEARCH AND MANAGEMENT COMPANY
On behalf of: The Income Fund of America , Inc.
Capital World Growth and Income
Fund, Inc. and
Fundamental Investors, Inc.
By: /s/ XXXXXXX X. XXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
SCHEDULE 1
PREFERENCE UGC SHARES
SELLER SHARES WARRANTS TO BE ISSUED
------ ---------- -------- -------------
The Income Fund of America, Inc. 1,180 572,960 237,090
Capital World Growth and Income Fund, Inc. 100 48,556 20,092
Fundamental Investors, Inc. 1,120 543,826 225,035
Total 2,400 1,165,342 482,217
SCHEDULE 2
Sellers hereby instruct Purchaser to deliver the UGC Shares, issued in the
denominations and registered in the names, as set forth below:
NAME AND ADDRESS NUMBER OF UGC SHARES
---------------- --------------------
Anchorwatch & Co. 225,035 Shares
DTC/New York Window
Account: Xxxxx Xxxxxx
00 Xxxxx Xxxxxx
Xxxxx Xxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Fund Name: Fundamental Investors
Fund Number: HG06
Contact: Xxxxxx Xxxxxx (000) 000-0000
Xxxx & Co. 237,090 Shares
XX Xxxxxx
4 New York Plaza
11th Floor
Attn: Physical Receive Processing
In F/O (JPM P Account No. S56657)
Xxx Xxxx, XX 00000
Contact: Xxxxx Xxxxxxxxx (000) 000-0000
Xxxx & Co. 20,092 Shares
XX Xxxxxx
4 New York Plaza
11th Floor
Attn: Physical Receive Processing
In F/O (JPM P Account No. P48773)
Xxx Xxxx, XX 00000
Contact: Xxxxx Xxxxxxxxx (000) 000-0000
EXHIBIT A
FORM OF RESTRUCTURING BALLOT
[attached]
EXHIBIT B
FORM OF DEED OF PURCHASE AND TRANSFER
PURCHASE AND TRANSFER
OF SHARES IN
UNITED PAN-EUROPE COMMUNICATIONS N.V.
between
UnitedGlobalCom, Inc.
and
CAPITAL RESEARCH AND MANAGEMENT COMPANY
On behalf of: The Income Fund of America, Inc.
Capital World Growth and Income Fund, Inc. and
Fundamental Investors, Inc.
PURCHASE AND TRANSFER
OF SHARES IN
UNITED PAN-EUROPE COMMUNICATIONS N.V.
THE UNDERSIGNED:
1. Capital Research and Management Company
On behalf of : The Income Fund of America, Inc.
Capital World Growth and Income Fund, Inc. and
Fundamental Investors, Inc.
(the "Transferor");
2. UnitedGlobalCom, Inc.
(the "Purchaser"); and
3. United Pan-Europe Communications, N.V.,
(the "Company"),
WHEREAS:
A. the Transferor is holder of 2,400 paid up Preference Shares A in the
capital of the Company, each with a nominal value of E1.00, numbered
1A2,001 to1A4,400 inclusive (Capital World Growth and Income Fund,
Inc. 100 shares nnumbered 1A2,001 through 1A2,100; The Income Fund of
America, Inc. 1,180 shares numbered 1A2,101 through 1A3,280; and
Fundamental Investors, Inc. 1,120 shares numbered 1A3,281 through
1A4,400) (the "Shares");
B. the Transferor acquired the Shares from the Company by deed of
December 7, 2000; and
C. pursuant to the
Securities Purchase Agreement entered into by and
among the Purchaser and Capital Research and Management Company on
behalf of The Income Fund of America, Inc., Capital World Growth and
IncomeFund, Inc. and Fundamental Investors, Inc. (the "
Securities
Purchase Agreement"), the Purchaser hereby wishes to purchase the
Shares from the Transferor and the Transferor wishes to sell the
Shares to the Purchaser on the terms of and subject to the conditions,
set forth in this agreement and the
Securities Purchase Agreement.
HAVE AGREED AS FOLLOWS:
ARTICLE 1 - PURCHASE AND TRANSFER OF THE SHARES AND PAYMENT
1. The Transferor hereby sells and transfers (LEVERT) the Shares to the
Purchaser, who hereby purchases and accepts the Shares from the Transferor
(the "Transfer").
2. The purchase price for the Shares shall be equal to 482,217 shares of the
Purchaser's Class A Common Stock, each with a par value of $.01 (the
"Purchase Price").
3. The Transferor has received the Purchase Price, for which the Purchaser is
fully acquitted.
ARTICLE 2 - GUARANTEES
In addition to the guarantees as granted by the
Securities Purchase Agreement,
the Transferor grants the following guarantees in respect to the Shares to the
Purchaser:
- The Transferor did not grant rights to purchase or otherwise acquire
the Shares but to the Purchaser.
- The Shares have not been encumbered with an attachment, usufruct and
pledge nor have depositary receipts for the Shares been issued with
the Company's concurrence.
- No resolutions to make any distributions out of the equity (VERMOGEN)
of the Company have been adopted, which have not been carried out.
ARTICLE 3 - ACCOUNT AND RISK
The Shares and all rights attached thereto including any distributions made by
the Company on the Shares will, for as far as applicable, from now on be for the
benefit of the Purchaser.
ARTICLE 4 - ACKNOWLEDGEMENT
The Company hereby acknowledges the Transfer and will make the appropriate entry
in the shareholders' register.
ARTICLE 5 - MISCELLANEOUS
1. The Transferor and the Purchaser waive all their rights to rescind or avoid
(VERNIETIGEN) this agreement and the included Transfer.
2. This agreement and the included Transfer and the rights and obligations
arising from this agreement and the Transfer shall be governed by and
construed in accordance with the laws of the Netherlands.
THUS AGREED AND EXECUTED IN __ ORIGINAL COPIES
in on FEBRUARY __, 2003
---------------------------------------------
UNITED PAN-EUROPE COMMUNICATIONS, N.V.
-----------------------------------
by:
UNITEDGLOBALCOM, INC.
-----------------------------------
by:
CAPITAL RESEARCH AND MANAGEMENT COMPANY
ON BEHALF OF THE INCOME FUND OF AMERICA, INC.
CAPITAL WORLD GROWTH AND INCOME FUND, INC.
AND FUNDAMENTAL INVESTORS, INC.
-----------------------------------
by:
EXHIBIT C
FORM OF WARRANT ASSIGNMENT
FOR VALUE RECEIVED the undersigned, on behalf of the registered owners of a
warrant, number WOS 11, dated December 7, 2000, to purchase ordinary shares A of
UPC, nominal value E1.00 per share (the "Ordinary Shares"), at an exercise price
of E42.546 per Ordinary Share (the "Warrant"), hereby sells, assigns and
transfers unto the assignee named below all of the rights of the undersigned
under the Warrant, with respect to the number of Ordinary Shares set forth
below:
Name and Address of Assignee No. of Ordinary Shares
UNITEDGLOBALCOM, INC.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000 1,165,342
Xxxxxx, Xxxxxxxx 00000
and does hereby irrevocably constitute and appoint Xxxxxxxx Xxxxx
attorney-in-fact to register such transfers onto the books of United Pan-Europe
Communications N.V. maintained for the purpose, with full power of substitution
in the premises.
Date: February __, 2003 CAPITAL RESEARCH AND MANAGEMENT COMPANY
on behalf of The Income Fund of America, Inc.
Capital World Growth and Income Fund, Inc.
and Fundamental Investors, Inc.
By:
---------------------------------------
Name:
Title:
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the Warrant in every particular, without alteration or
enlargement or any change whatsoever.
