Exhibit 10.2
Conformed Copy
REGISTRATION RIGHTS AGREEMENT
Dated May 25, 2001
between
UNITED PAN-EUROPE COMMUNICATIONS N.V.
and
LIBERTY-BELMARKEN, INC.
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated May 25, 2001 (this "Agreement"),
between United Pan-Europe Communications N.V. (the "Company") and
Liberty-Belmarken, Inc. ("Liberty").
The parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Commission" means the Securities and Exchange Commission of the United
States and any successor federal agency having similar powers.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder, all as the same shall be
in effect from time to time during the term hereof.
"Holder" means Liberty and other Persons who acquire Registrable
Securities from time to time (including any successors and assigns), for so long
as such person own any Registrable Securities.
"Liberty" has the meaning assigned to it in the preamble.
"Loan" means the loan advanced under the Loan Agreement.
"Loan Agreement" means the loan agreement dated as of May 15, 2001 by
and among Belmarken Holding B.V. and the Company, as Obligors, UPC Internet
Holding B.V., as Guarantor, and Liberty, as Lender.
"Ordinary Shares" means the ordinary shares A of the Company, issued in
the form of ordinary shares or American Depositary Shares.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government (or any agency or political subdivision
thereof) or other legal entity.
"Public Offering" means a public offering of Ordinary Shares of the
Company.
"Registrable Securities" means the Ordinary Shares issued by the
Company to Liberty or any other Holder upon exchange of the Loan for Ordinary
Shares pursuant to the terms set forth in Article IV of the Loan Agreement. As
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to any particular Registrable Securities that have been issued, such securities
shall cease to be Registrable Securities when (i) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of under such
registration statement, (ii) such securities shall have been distributed to the
public pursuant to Rule 144 under the Securities Act, (iii) they shall be freely
saleable without restriction under Rule 144(k), (iv) such securities shall have
been otherwise transferred or disposed of, and subsequent transfer or
disposition of such securities shall not require their registration or
qualification under the Securities Act or any similar state law then in force or
(v) such securities shall have ceased to be outstanding.
"Registration Expenses" means any and all expenses incident to
performance of or compliance with this Agreement, including, without limitation,
(i) all SEC and stock exchange or National Association of Securities Dealers,
Inc. registration and filing fees, (ii) all fees and expenses of complying with
securities or blue sky laws (including fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the Registrable
Securities), (iii) all printing, messenger and delivery expenses, (iv) all fees
and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange or with The Nasdaq Stock Market pursuant
to clause (vii) of Section 4, (v) the fees and disbursements of counsel for the
Company and of its independent public accountants, including the expenses of any
special audits and/or "cold comfort" letters required by or incident to such
performance and compliance, (vi) the reasonable fees and disbursements of one
counsel selected by the Holders of a majority of the Registrable Securities
being registered to represent all Holders of the Registrable Securities being
registered in connection with each such registration, and (vii) any fees and
disbursements of underwriters customarily paid by the issuers or sellers of
securities, including liability insurance if the Company so desires or if the
underwriters so require, and the reasonable fees and expenses of any special
experts retained in connection with the requested registration, but excluding
underwriting discounts and commissions and transfer taxes, if any.
"Registration Request" has the meaning assigned to it in Section 2(a).
"Registration Statement" has the meaning assigned to it in Section
2(a).
"Requesting Holder" has the meaning assigned to it in Section 2(a).
"Requesting 10% Holder" has the meaning assigned to it in Section 6.
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations thereunder, all as the same shall be in
effect from time to time during the term hereof.
"Selling Investor" has the meaning assigned to it in Section 2(b).
"Shareholder" means each Person (other than the Holders) that
beneficially own Ordinary Shares.
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2. Registration on Request.
(a) If after the date of this Agreement the Company shall receive
written notice (a "Registration Request") from any Holder (the "Requesting
Holder") in accordance with Section 2(c), then the Company shall promptly, but
in no event more than 10 days following the receipt of such request, deliver to
all Holders and Shareholders with registration rights written notice of its
intention to file a registration statement under the Securities Act pursuant to
such Registration Request and specify the manner of sale requested by the
Requesting Holder pursuant to Section 2(b) and the number of Ordinary Shares
proposed to be included in the registration by the Company and the Requesting
Holder.
In the case of each Registration Request:
(i) the Company shall, within the time period specified in Section 2(b)
below, prepare, file and use its best efforts to cause to become effective as
promptly as practicable a registration statement under the Securities Act
relating to the Registrable Securities specified in the Registration Request and
the Registrable Securities, if any, specified by each other Holder or
Shareholder who notifies the Company in writing within 15 days of the notice
from the Company of the Company's intention to file a registration statement
pursuant to this Section 2(a) of its determination to have a specified number of
Ordinary Shares included in the registration statement (together, for purposes
of this Section 2, the "Relevant Securities");
(ii) the Company shall prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all Relevant Securities
covered by such registration statement; and
(iii) the Company shall keep such registration statement current and
effective for such time not exceeding six months, for the purpose of selling or
disposing of such Relevant Securities.
(b) The Company shall be obligated to file such registration statement
as promptly as practicable, but in any event within 60 days after receipt of a
Registration Request; provided, however, that, (i) if the Board of Management
determines, in its good faith judgment, that the registration and offering
otherwise required by this Section 2 would have an adverse effect on a then
contemplated public offering of the Company's equity securities, the Company may
postpone the filing of a registration statement required by this Section 2,
during the period starting with the 30th day immediately preceding the date of
the anticipated filing of, and ending on a date 135 days following the effective
date of, the registration statement relating to such other public offering and
(ii) if the Company has pending or in process a material transaction, the
disclosure of which could, in the good faith judgment of the Board, reasonably
be expected to materially and adversely affect the Company, the Company may
postpone the filing (but not the preparation) of a registration statement
required by this Section 2 for up to 90 days; provided, that the Company shall
at all times in good faith use its best efforts to cause any registration
statement required by this Section 2 to be filed as soon as possible. The
Company shall promptly give the Holders requesting registration thereof pursuant
to this Section 2 written notice of any postponement made in accordance with the
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preceding sentence. If the Company gives the Holders such a notice, the Holders
shall have the right, within 15 days after receipt thereof, to withdraw their
request in which case, such request will not be counted for purposes of this
Section 2.
(c) A Registration Request may be made by any Holder at any time after
such Holder acquires Registrable Securities; provided however, no Holder shall
be entitled to submit a Registration Request until 6 months after the closing of
any Public Offering relating to a Registration Request under this Section 2 and
no Registration Request may be made by a Holder during the pendency of a
Registration.
Notwithstanding anything contained herein to the contrary, (i) unless
the aggregate requests by the Holder or Holders for such registration cover at
least 10% of the number of Registrable Securities held by Holder on the date of
this Agreement (as such number may be adjusted for stock splits, combinations
and similar events); (ii) each Holder shall be entitled to make a total of six
separate Registration Requests on forms other than a Form S-3, provided that
each Holder may make an unlimited number of Registration Requests on Form S-3;
and (iii) the Holders in any offering by majority vote based on the number of
Ordinary Shares to be offered, shall be entitled to appoint the underwriters and
to designate their respective roles in any offering under this Section 2 as well
as to approve the syndicate structure for any such offering, in each case with
the approval of the Company, such approval not to be unreasonably withheld.
No registration requested pursuant to this Section 2 shall be deemed to
have been effected for purposes of this Section 2(c) unless (i) it has been
declared effective by the Commission, (ii) it has remained effective for the
period set forth in Section 2(a)(iii), and (iii) the offering of the Registrable
Securities pursuant to such registration is not subject to any stop order,
injunction or other order or requirement of the Commission.
(d) The Company will pay all Registration Expenses in connection with
the registration of Registrable Securities effected by it pursuant to this
Section 2.
(e) If the managing underwriter of a Public Offering to be made under
this Section 2 should recommend that the number of Registrable Securities to be
included in such offering would be likely to have an adverse effect on the
offering, after the exclusion of all securities by Shareholders that are not a
party to this Agreement, then the Holders shall reduce the Registrable
Securities to be included in the offering on a pro rata basis based on the total
number of Registrable Securities requested by each Holder to be included
therein.
Notwithstanding anything contained herein to the contrary, if a
determination is made under this Section 2(e), the effect of which is to limit
the number of Registrable Securities to be included in an offering by any
Holder, such Holder will not be deemed to have made a Registration Request.
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3. Incidental Registration.
(a) If the Company at any time after the date of this Agreement
proposes to register any of its securities under the Act (other than pursuant to
Section 2 above), whether or not for sale for its own account, on a form and in
a manner which would permit registration of Registrable Securities for sale to
the public under the Securities Act, it will give written notice promptly (and
in no event less than 30 days prior to the proposed filing or offering date) to
the Holders of its intention to do so, describing such securities and specifying
the form and manner and the other relevant facts involved in such proposed
registration, and upon the written request of any Holder delivered to the
Company within 20 days after any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such Holder), the Company
will use its best efforts to effect the registration under the Securities Act of
all of the Registrable Securities which the Company has been so requested to
register by the Holders of Registrable Securities, to the extent required to
permit the disposition (in accordance with the intended methods thereof as
aforesaid) of the Registrable Securities so to be registered, provided that:
(i) in the case of a primary offering of its securities, if,
at any time after giving such written notice of its intention to
register any of its securities and prior to the effective date of the
registration statement or listing particulars filed in connection with
such registration, the Company shall determine for any reason not to
register such securities, the Company may, at its election, give
written notice of such determination to the Holders proposing to sell
Registrable Securities and thereupon shall be relieved of its
obligation to register any Registrable Securities in connection with
such registration (but not from its obligation to pay the Registration
Expenses in connection therewith as provided in Section 3(c)), without
prejudice, however, to the rights, if any, of any one or more holders
to request that such registration be effected as a registration under
Section 2 above;
(ii) if (A) the Company has filed a registration statement
covering the sale for its own account of its own securities to
underwriters for the purpose of making a Public Offering of Ordinary
Shares and Registrable Securities are to be included therein pursuant
to the provisions of this Section 3, (B) in the judgment of the
managing underwriter or underwriters of the proposed Public Offering of
such securities, the total amount of such securities to be so
registered, including such Registrable Securities, will exceed the
maximum amount of the Company's securities that can be marketed without
materially and adversely affecting such Public Offering, and (C)
notification of such determination is given to the Holders proposing to
sell Registrable Securities prior to the effective date of such
registration statement, then the Company shall be entitled to reduce
the number of Registrable Securities proposed to be sold by the Holders
in such offering. Such reduction shall be allocated to the Holders pro
rata based on the number of Registrable Securities proposed to be
included; and
(iii) the Company shall be entitled to appoint the
underwriters and to designate their respective roles in any offering
under this Section 3 as well as to approve the syndicate structure for
any such offering.
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(b) The Company shall not be obligated to effect any registration of
Registrable Securities under this Section 3 incidental to the registration of
any of its securities in connection with mergers, acquisitions, exchange offers,
dividend reinvestment plans, retirement plans or stock option or other employee
benefit plans.
(c) The Company will pay all Registration Expenses in connection with
each registration of Registrable Securities requested pursuant to this Section
3.
4. Related Provisions.
(a) In connection with any registration of Registrable Securities
pursuant to Section 2 or 3, the Company will:
(i) furnish to each seller of Registrable Securities such
number of conformed copies of the registration statement and of each
amendment or supplement thereto (in each case including all exhibits),
such number of copies of the prospectus included in the registration
statement (including each preliminary prospectus and any summary
prospectus), in conformity with applicable registration requirements,
any documents incorporated by reference in the registration statement
or prospectus, such number of copies of the listing particulars, in
conformity with the requirements of the Securities Act, and such other
documents as such seller may reasonably request;
(ii) after the filing of the registration statement, promptly
notify each Selling Investor covered by such registration statement of
any stop order issued or threatened by the Commission and take all
reasonable actions required to prevent the entry of such stop order or
to remove it if entered;
(iii) use its best efforts to register or qualify all
Registrable Securities and other securities covered by the registration
statement under such other securities or blue sky laws of such
jurisdictions as each seller shall reasonably request, and do any and
all other acts and things which may be necessary or advisable to enable
such seller to consummate the disposition in such jurisdiction of its
Registrable Securities covered by such registration statement, except
that the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction
wherein it is not so qualified, or to subject itself to taxation in any
such jurisdiction, or to consent to general service of process of any
such jurisdiction;
(iv) promptly notify each seller of Registrable Securities
covered by such registration statement at any time when a prospectus
relating thereto is required to be delivered under applicable
regulation, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances
then existing, and at the request of any such seller or holder prepare
and furnish to such seller and holder a reasonable number of copies of
a supplement to or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the purchasers of such Registrable
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Securities or securities, such prospectus shall not include 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 in the light of the circumstances then existing;
(v) enter into customary agreements (including, if the method
of distribution is by means of an underwriting, an underwriting
agreement in customary form in accordance with Section 4(b)) and take
such other actions as are reasonably required in order to expedite or
facilitate the disposition of the Registrable Securities to be so
included in the registration statement;
(vi) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its security holders, as soon as reasonably practicable, but in no
event more than eighteen months after the effective date of such
registration statement, an earnings statement covering a period of at
least twelve months after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Act and rules and regulations promulgated
thereunder; and
(vii) use its best efforts (A) to list the Registrable
Securities on each securities exchange on which Ordinary Shares are
then listed and to be on or to remain listed on, (B) to assist the
Holder to prepare and distribute the U.S. prospectus and whichever
other documents may be required, as soon as practicable and (C) to
provide a transfer agent and registration for such Registrable
Securities covered by such registration statement not later than the
effective date of such registration statement.
(viii) before filing a registration statement or prospectus,
or any amendments or supplements thereto, the Company will furnish to
the Holders and to one counsel selected by the Holders of a majority of
the Registrable Securities covered by such registration statement to
represent all Holders of Registrable Securities covered by such
registration statement, copies of all documents proposed to be filed
(including, if requested, all documents to be incorporated by reference
in such registration statement, prospectus, amendment or supplement),
which documents will be subject to the review of such counsel and the
Company shall not file any registration or amendment or supplement
thereto (excluding any document incorporated by reference in such
registration statement, prospectus, amendment or supplement) if the
Holders' counsel shall reasonably object, in writing, on a timely basis
as to a matter affecting the liability of any Holder or the rights of
the Holders under this Agreement; provided, that any such objecting
party and the Company shall use their good faith efforts to resolve
such party's objections on a basis reasonably satisfactory for such
party and the Company which will permit such filing; provided, further,
that nothing in this clause (viii) shall be construed to require the
consent of any Holder or its counsel to the filing of any document
incorporated by reference in any registration statement, prospectus,
amendment or supplement;
(ix) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with
or approved by such other governmental agencies or authorities as may
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be necessary to enable the seller or sellers thereof to consummate the
disposition of such Registrable Securities;
(x) obtain a "cold comfort" letter or letters from the
Company's independent public accountants in customary form and covering
matters of the type customarily covered by "cold comfort" letters as
the seller or sellers of a majority of such Registrable Securities
shall reasonably request; and
(xi) make available for inspection by any seller of such
Registrable Securities covered by such registration statement, by any
underwriter participating in any disposition to be effected pursuant to
such registration statement and by the attorney acting on behalf of the
Holders as provided in Section 1 or representing any such underwriter,
all pertinent financial and other records, pertinent corporate
documents and properties of the Company, and cause all of the Company's
officers, directors and employees to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company such information
regarding such seller and pertinent to the disclosure, requirements relating to
the registration and the distribution of such securities as the Company may from
time to time reasonably request in writing or as shall be required by law or by
any regulatory agency in connection therewith.
(b) If requested by the underwriters for any offering pursuant to a
registration requested under Section 2, above, the Company will enter into an
underwriting agreement with such underwriters for such offering, such agreement
to contain such representations and warranties by the Company and such other
terms and provisions as are customarily contained in underwriting agreements
with respect to secondary distributions, including, without limitation,
agreements to indemnify and to contribute to the effect and to the extent
provided in Sections 7 and 8, respectively,
(c) If the Company at any time proposes to register any of its
securities in the United States (other than pursuant to a request made under
Section 2 above), whether or not for sale for its own account, and such
securities are to be distributed by or through one or more underwriters, the
Company will make reasonable efforts, if requested by any Selling Investor, to
arrange for such underwriters to include such Registrable Securities among those
securities to be distributed by or through such underwriters; provided, however,
that for purposes of this sentence, reasonable efforts shall not require the
Company or any other seller of the securities proposed to be distributed by or
through such underwriters to reduce the amount or net sale price of such
securities proposed to be so distributed. The Holders of the Registrable
Securities on whose behalf Registrable Securities are to be distributed by such
underwriters shall be parties to any such underwriting agreement and the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such Holders of Registrable Securities. If any Holder of
Registrable Securities disapproves of the terms of the underwriting, such Holder
may elect to withdraw all of its Registrable Securities by written notice to the
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Company and the managing underwriter. The securities so withdrawn shall also be
withdrawn from registration.
(d) In the case of any registration pursuant to Section 2 or 3 which
shall be in connection with an underwritten public offering, the Company and
each Holder of Registrable Securities agrees, if so required by the managing
underwriter or underwriters, not to effect any public sale or distribution of
Registrable Securities (other than as part of such underwritten public
offering):
(i) within 30 days prior to the scheduled effective date
of such registration statement, as notified by the Company, or
(ii) thereafter until 180 days (or such lesser period as the
managing underwriters may permit) after the effective date of such
registration statement.
(e) For so long as the Ordinary Shares are registered under the
Exchange Act, the Company covenants and agrees to timely file all reports and
other information required to be filed by Section 13 or 15(d) under the Exchange
Act and to take such further actions as any Holder may reasonable request, to
the extent required from time to time to enable any Holder to sell the
Registrable Securities without registration under the Securities Act within the
limitation of the exemption provided by Rule 144 under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission. Upon any Holder's request, the Company will
deliver to such Holder a written statement as to whether it has complied with
such reporting requirements.
5. Preparation; Reasonable Investigation.
In connection with the preparation and filing of each registration
statement registering Registrable Securities under the Securities Act, the
Company will give each Holder and its underwriters, if any, and their respective
counsel and accountants, the opportunity to participate in the preparation of
such registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and will give each
of them such access to its books and records and such opportunities to discuss
the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of such holders and such underwriters or their respective
counsel, to conduct a reasonable investigation within the meaning of the Act.
6. Rights of Certain Requesting Holders.
The Company will not file any registration statement under the
Securities Act unless it shall first have given to each Holder that owns
Ordinary Shares constituting 10% or more of the Ordinary Shares at the time
outstanding or is otherwise deemed to be a control person under the Securities
Act at least 30 days' prior written notice thereof and, if so requested by any
such Holder within 30 days after such notice, each such Holder shall have the
right, at any time when, in the reasonable judgment of such Holder, such Holder
is or might be deemed to be a controlling person of the Company within the
meaning of the Securities Act (a "Requesting 10% Holder"), (a) to participate in
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the preparation and filing of each such registration statement to the extent
provided in this Agreement; (b) to receive the documents specified in Sections
4(a)(i) and (iv) and the notice specified in Section 4(a)(iv), and to make the
requests specified in Sections 4(a)(i) and (v); and (c) to retain counsel to
assist such Requesting 10% Holder or Holders in such participation. If any such
registration statement refers to any Requesting 10% Holder by name or otherwise
as the holder of any securities of the Company, then such holder shall have the
right (in addition to any other rights it may have under this Section 6) to
require, in the event that such reference to such holder by name or otherwise is
not required by the Securities Act or any rules and regulations promulgated
thereunder, the deletion of the reference to such holder.
7. Indemnification.
(a) In the event of any registration of securities of the Company under
the Securities Act, the Company will, and hereby does, indemnify and hold
harmless (i) in the case of any registration statement filed pursuant to Section
2 or 3 above, the seller of any Registrable Securities covered by such
registration statement, its directors and officers, each underwriter of such
securities, each officer and director of each such underwriter, each Person who
participates as an underwriter in the offering or sale of such securities, their
respective officers, directors, partners, agents, employees and controlling
persons, including each other Person, if any, who controls such seller or any
such underwriter within the meaning of the Securities Act, and (ii) in the case
of any registration statement of the Company, any Requesting Holder, its
directors and officers and each other Person, if any, who controls such
Requesting Holder or Holders, as a group, within the meaning of the Securities
Act, against any losses, claims, damages, liabilities and expenses, joint or
several, to which such seller, underwriter or Requesting Holder or any such
director, officer, participating Person or controlling Person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions or proceeding in respect thereof) arise out
of or are based upon (x) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus included therein, or any amendment or
supplement thereto, or any statement incorporated by reference therein, or (y)
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or (z)
the failure of the Company to comply with applicable law or the breach by the
Company of this Agreement, and the Company will reimburse such seller,
underwriter and Requesting Holder and each such director, officer, participating
Person and controlling Person for any legal or any other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability, action or proceeding; provided, however,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
any such preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by such seller,
underwriter or Requesting Holder specifically stating that it is for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
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behalf of such seller, underwriter, Requesting Holder or any such director,
officer, participating Person or controlling Person and shall survive the
transfer of such securities by such seller.
(b) The Company may require that, as a condition to including any
Registrable Securities in any registration statement (the "Filing"), the Company
shall have received an undertaking satisfactory to it from the prospective
seller of such securities, to indemnify and hold harmless (in the same manner
and to the same extent as set forth in Section 7(a), above) the Company, each
director of the Company, each officer of the Company who shall sign such
registration statement and each other Person, if any, who controls the Company
within the meaning of the Securities Act, with respect to any statement in or
omission from such registration statement, any preliminary prospectus, final
prospectus or summary prospectus included therein, any amendment or supplement
thereto, or the Filing, if such statement or omission was made in reliance upon
and in conformity with written information furnished to the Company through an
instrument duly executed by such seller specifically stating that it is for use
in the preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, Filing, amendment or supplement. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of the Company or any such director, officer or controlling Person and
shall survive the transfer of such securities by such seller.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in the
preceding paragraphs of this Section 7 such indemnified party will, if a claim
in respect thereof is to be made against an indemnifying party, give written
notice to the latter of the commencement of such action; provided, however, that
the failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under this Section 7 or
relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case any such action
is brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, then, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such action, the indemnifying party shall be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified, to the extent that it may wish,
with counsel satisfactory to such indemnified party (who 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 for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation, unless in such indemnified party's judgment a
conflict of interest between such indemnified and indemnifying parties arises in
respect of such actions after assumption of the defense thereof. No indemnifying
party will consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
of such claim or litigation.
11
(d) Indemnification similar to that specified in the preceding
paragraphs of this Section 7 (with appropriate modifications) shall be given by
the Company and each seller of Registrable Securities with respect to any
required registration or other qualification of such Registrable Securities
under any federal or state law or regulation or governmental authority other
than the Securities Act.
8. Contribution.
If the indemnification provided for in Section 7 above is unavailable
to the indemnified parties in respect of any losses, claims, damages or
liabilities referred to herein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) as between the Company and the Selling Investors on the one hand
and the underwriters, if any, on the other, in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Selling
Investors on the one hand and the underwriters on the other from the offering of
the Ordinary Shares, or if such allocation is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
but also the relative fault of the Company and the Selling Investors on the one
hand and of the underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations and (ii) as between the Company
on the one hand and each Selling Investor on the other, in such proportion as is
appropriate to reflect the relative fault of the Company and of each Selling
Investor in connection with such statements or omissions, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Selling Investors on the one hand and the underwriters on the other
shall be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and the Selling Investors bear to the total
underwriting discounts and commissions received by the underwriters, in each
case as set forth in the table on the cover page of the prospectus. The relative
fault of the Company and the Selling Investors on the one hand and of the
underwriters on the other 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 and the Selling Investors or by the underwriters. The
relative fault of the Company on the one hand and of each Selling Investor on
the other 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 such party,
and the party's relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Selling Investors agree that it would not be just
and equitable if contribution pursuant to this Section 8 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 in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
12
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Ordinary 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, and no Selling
Investor shall be required to contribute any amount in excess of the amount by
which the total price at which the Ordinary Shares of such Selling Investor were
offered to the public exceeds the amount of any damages which such Selling
Investor has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Selling Investor's obligations to contribute
pursuant to this Section 8 are several in proportion to the proceeds of the
offering received by such Selling Investor bears to the total proceeds of the
offering received by all the Selling Investors and not joint.
9. Transfer of Registration Rights.
The registration rights of any Holder under this Agreement with respect
to any Registrable Securities may be transferred (a) without the prior written
consent of the Company (i) by any Holder to one or more of its direct or
indirect subsidiaries, parents or affiliates (ii) among such subsidiaries,
parents or affiliates and (iii) by any of such subsidiaries, parents or
affiliates to such Holder, and (b) with the consent of the Company, such consent
not to be unreasonably withheld, to any other person. No transfer of Registrable
Securities shall cause such Registrable Securities to lose such status.
10. Miscellaneous.
(a) Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of, and be
binding upon, the respective successors and assigns of the parties hereto.
Except as expressly provided in this Agreement, nothing in this Agreement,
express or implied, is intended to confer upon any person other than the parties
hereto or their respective successors and assigns, any rights, remedies,
obligations or liabilities under, or by reason of, this Agreement.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company and the Holders agree to the same in writing. In the
case of any new Holder becoming a party hereto after the date hereof, no
amendment of this Agreement may be made that adversely affects the rights of
existing Holders at the time the new Person becomes a Holder hereunder.
(c) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
13
together shall constitute one and the same agreement.
(d) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(e) Governing Law. This Agreement shall be governed by the laws
of the State of New York.
(f) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Attorney-in-Fact
Address for Notices:
Xxxxxx Xxxxxx 00
0000 XX Xxxxxxxx Xxxx
Xxxxxxx 00000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telecopier: x00-00-000 9841
Attention: Chief Financial Officer and
General Counsel
with a copy to:
Holme Xxxxxxx &Owen
Xxxxxxxxx Xxxxx
00 Xxxxxx Xxx
Xxxxxx X0X 0XX
Telecopier: x00-00 0000 0000
Attention: Xxxx X. Xxxxxxxx
LIBERTY-BELMARKEN, INC.
By /s/ Xxxxx X.X. Xxxxxxx
--------------------------------
Name: Xxxxx X.X. Xxxxxxx
Title: Senior Vice President and
Treasurer
Address for Notices:
0000 Xxxxx Xxxxxx Xx.
Xxxxxxxxx, XX 00000
Telecopier: 000-000-0000
Attention: Xxxx Xxxxxx
Assistant Treasurer
With a copy to:
Xxxxx Xxxxx L.L.P.
One Shell Plaza
000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Telecopier: (000)000-0000
Attention: Xxxxxx Xxxxxxx
