EXHIBIT 10.30
AGREEMENT
THIS AGREEMENT, dated effective as of February __, 1999 (the "Agreement"),
is by and between UNITED INTERNATIONAL HOLDINGS, INC. ("UIH"), a corporation
organized under the laws of the State of Delaware, U.S.A., and UNITED PAN-EUROPE
COMMUNICATIONS N.V. ("UPC"), a company organized under the laws of The
Netherlands.
Recitals
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A. UIH is the majority shareholder of UPC. UIH currently consolidates
the financial results of UPC in UIH's financial statements. As a subsidiary of
UIH, UPC is subject to the covenants and restrictions of the indenture governing
UIH's debt securities.
B. In connection with this shareholder relationship, UIH and UPC have
agreed to take certain actions and restrict certain activities with respect to
one another, all as more particularly set forth in this Agreement.
Agreement
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1. Covenant Not to Compete. For so long as UIH holds 50% or more of the
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outstanding ordinary shares of UPC on a fully diluted basis:
(a) UIH shall not pursue any video services, telephone or Internet
access or content business opportunities specifically directed to the Europe (as
defined below) or Middle East (as defined below) markets unless: (i) UIH has
first presented such opportunity in writing to the Supervisory Board of UPC and
(ii) the members of the Supervisory Board who are not directors or officers of
UIH of UPC have declined to pursue such opportunity in writing to UIH.
(b) UIH shall not pursue any video services, telephone or Internet
access or content business opportunities in markets outside of Europe or the
Middle East in which UIH then has operations unless: (i) UPC has first
presented such opportunity in writing to the Board of Directors of UIH and (ii)
the Board of Directors of UIH has declined to pursue such opportunity in writing
to UPC.
For purposes of this section 1, "Europe" shall include Albania, Austria,
Belarus, Belgium, Bosnia, Bulgaria, Croatia, Czech Republic, Denmark, Estonia,
Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia,
Liechtenstein, Lithuania, Luxembourg, Moldova, The Netherlands, Norway, Poland,
Portugal, Romania, Russia, Slovak Republic, Spain, Sweden, Switzerland, Ukraine
and the United Kingdom and the "Middle East" shall include Armenia, Azerbaijan,
Bahrain, Cyprus, Egypt, Georgia, Iran, Iraq, Israel, Jordan, Kuwait, Lebanon,
Oman, Palestine, Qatar, Saudi Arabia, Syria, Turkey, United Arab Emirates and
Yemen, as such territories are currently constituted or as they may be
constituted in the future.
2. Sale of UIH Class A Common Stock Held by UPC. UPC shall sell to UIH
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or any UIH affiliate designated by UIH(?) all or any portion of UIH's Class A
Common Stock (the "Class A Stock") held by UPC or any of its subsidiaries, free
and clear of any liens, pledges or other encumbrances, upon receipt by the
Supervisory Board of UPC of a written request by UIH (the "Sale Notice") that
UPC do so. UPC shall set a closing date for the sale of the amount of Class A
Stock specified int eh Sale Notice. The closing date shall be a business day
int he United States and The Netherlands at least ten days and no more than 30
days after receipt of the Sale Notice by UPC. UPC shall notify UIH of the
closing date as soon as possible. The selling price of the Class A Stock shall
be the average closing price of the Class A Stock as reported on the Nasdaq
National Market for the ten trading days preceding the closing date. UPC shall
not sell directly or indirectly, nor permit any of its subsidiaries to sell, any
shares of Class A Stock, until after having provided UIH with the opportunity to
acquire such shares.
3. Compliance with UIH's Reporting Requirements. In order to assist UIH
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in complying with its reporting obligations under the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, and all other U.S.
federal and state securities laws (collectively, the "U.S. Securities Laws") or
to avoid potential liability by UIH thereunder, UPC shall (a) timely provide UIH
with audited financial statements of UPC in such form and with respect to such
periods as UIH shall reasonably request, until UIH is no longer required to
include financial statements of UPC in UIH's filings under the U.S. Securities
Laws, and (b) not alter or amend its accounting principles without the prior
written consent of UIH, until such time as UIH no longer consolidates UPC's
financial results. UPC hereby consents to the public disclosure by UIH of all
matters deemed necessary or appropriate by UIH in its sole discretion in order
to comply with or satisfy its public disclosure obligations o UIH or any
affiliate of UIH under the U.S. Securities Laws.
4. Indemnification by UPC. (a) As additional consideration for UIH to
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execute the underwriting agreement in connection with UPC's initial public
offering of securities (the "Underwriting Agreement"), UPC shall defend,
indemnify and hold UIH harmless form and against any and all losses, claims,
damages, obligations, liens, assessments, judgments, fines, liabilities, and
other costs and expenses (including without limitation interest, penalties and
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claim
asserted, as the same are incurred (collectively, "Liabilities")) that UIH may
sustain or suffer based upon, arising out of, by reason of or otherwise in
respect of or in connection with the Underwriting Agreement; provided, however,
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that UPC will not be liability to UIH (i) to the extent that in finally
judicially determined that such Liabilities resulted from the willful misconduct
or gross negligence of UIH; or (ii) to the extent that it is finally judicially
determined that such Liabilities resulted form the material breach by UIH of any
representation, warranty, covenant or other agreement of UIH contained in the
Underwriting Agreement; provided, further, that if and to the extent that such
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indemnification is unenforceable for any reason, UPC shall make the maximum
contribution to the payment and satisfaction of such indemnified liability which
shall be permissible under applicable laws. The indemnification and
contribution provided for in this Section 4 will remain in full force and effect
regardless of any investigation made by or on behalf of UIH.
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(b) Indemnification Procedure; Notice; Defense. Promptly after
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becoming aware of any Liabilities or the making of any claim or demand by any
third party that may result in the incurrence of any Liabilities, UIH shall
notify UPC of such incurrence, claim or demand; provided, that the failure of
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UIH to so notify UPC shall not relieve UPC of any liability under Section 4(a)
hereof, except if UPC has been prejudiced by such failure to be so notified. In
case of any notice to UPC, UPC shall be entitled to participate in, and, if it
wishes, to assume, the defense of any such claim or demand and, after notice of
its intent to assume such defense, UPC will not be liable for any attorney's
fees or other expenses subsequently incurred by UIH in connection with such
claim; provided that UIH shall have the right to employ counsel to represent it
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if, in the reasonable judgment of UIH's counsel, there is reasonably likely to
be a conflict of interest such that representation of UIH and UPC by the same
counsel would violate the Code of Professional Responsibility or similar rules,
in which event the reasonable fees and expenses of appropriate separate counsel
shall be borne by UPC. If UPC does not elect within a reasonable time after
receipt of notice to assume the defense of any suit brought to enforce a claim
or demand referred to above, UIH shall be entitled to assume the control of such
defense, in which case the reasonable fees and expenses incurred by UIH int he
conduct of such defense, including the reasonable fees and expenses of counsel,
shall be reimbursed by UPC as the same are incurred from time to time by UIH (in
addition to local counsel) in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. UPC shall not, without the prior written
consent of UIH, effect any settlement of any pending or threatened claim or
action in respect of which UIH is or could have been a party and indemnity could
have been sought hereunder by UIH unless such settlement includes an
unconditional release of UIH from all liability on any claims that are the
subject matter of such action.
5. Compliance by UPC with UIH Indenture. UPC shall take no action or
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inaction that will result in a breach of the Indenture, dated as of February 5,
1998, by and between UIH and Firstar Bank of Minnesota, N.A., as trustee, as the
same may be amended or supplemented (the "Indenture") provided that such
replacement or refinancing indenture does not contain covenants applicable to
UPC by reason of this paragraph that are materially more restrictive, taken as a
whole.
6. Term; Termination. This Agreement shall be effect from the date set
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forth above until this Agreement is terminated pursuant to this Section 6. This
Agreement shall terminate, (i) for purposes of Section 1, when UIH ceases to
hold 50% or more of the outstanding ordinary shares of UPC on a fully diluted
basis, (ii) for purposes of Section 2, at such time as UPC or its subsidiaries
no longer holds any Class A Stock, (iii) for purposes of Section 3, when UIH or
its affiliates are no longer subject to periodic reporting requirements under
the U.S. Securities Laws or financial information about UPC is no longer
required to be reported by UIH under the U.S. Securities Laws, (iv) for purposes
of Section 4, when UIH no longer has any obligations or liabilities under the
Underwriting Agreement and (v) for purposes of Section 5, when UPC is no longer
subject to the terms of the UIH Indenture or any replacement agreement.
7. Assignment Successors. Except as otherwise provided herein, neither
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party hereto may assign or transfer any of its interests, or delegate any of its
obligations, hereunder without the prior written consent of the other party.
UIH, upon written notice to UPC, may assign its interests
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in this Agreement to any affiliate of UIH. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successor
and assigns.
8. Miscellaneous.
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(a) Amendment; Waiver. The Agreement may not be amended nor may any
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rights hereunder be waived except by an instrument in writing signed by the
parties hereto. The waiver of any breach of any term or condition hereof shall
not be deemed a waiver of any other or subsequent breach. No failure to
exercise and no delay in exercising, on the part of either party hereto, any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies at law.
(b) Further Assurances. Each party hereto shall execute, acknowledge,
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deliver, file and record such further certificates, amendments, instruments,
agreements and documents, and do all such other acts and things, as may be
required by law or as, in the reasonable opinion of either party hereto, may be
necessary or advisable to carry out the intents and purposes hereof.
(c) Headings. Titles and headings of the sections of this Agreement
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are for convenience of reference only and do not form a part of this Agreement
and shall not in any way affect the interpretation of this Agreement.
(d) Entire Agreement. This Agreement is the entire agreement and
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understanding between the parties hereto concerning the subject matter hereof
and supersedes and replaces all prior agreements and understandings between the
parties hereto with respect thereto.
(e) Severability. If any provision of this Agreement or the
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application thereof to any person or circumstance is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provisions to such persons or
circumstances other than those to which it has been invalid or unenforceable,
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby.
(f) Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Colorado, USA, other than its rules
of conflicts of laws to the extent that the application of the laws of another
jurisdiction would be required thereby.
(g) Notices. All notices, demands or other communications to be given
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under or by reason of this Agreement shall be in writing and shall be deemed to
have been received when delivered personally, by facsimile or mailed by
certified or registered mail, return receipt requested and postage prepaid, as
follows:
(i) If to UIH, to it at:
United International Holdings, Inc.
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0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000, X.X.X.
Facsimile: x0(000)000-0000
Attention: President
Copy to: Legal Department
(ii) If to UPC, to it at:
United Pan-Europe Communications N.V.
Xxxx. Xxxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Facsimile: x00(00)000-0000
Attention: President
Copy to: General Counsel
Either party hereto may change its address for notices, demands and other
communications hereunder by giving notice of such change to the other party in
accordance with this Section 8(g).
(h) No Third-Party Beneficiaries. Notwithstanding anything to the
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contrary herein, no person shall be a third-party beneficiary to this Agreement.
(i) Counterparts. This Agreement may be executed in one or more
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counterparts, each of which, when executed, shall constitute an original of this
Agreement, and all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement to
be effective in accordance with Section 6 hereof.
UNITED INTERNATIONAL HOLDINGS, INC.
By:_____________________________________________________
Xxxxxxx X. Xxxxx, President
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By:______________________________________________________
J. Xxxxxxx Xxxxx, President
By:______________________________________________________
Anton H.E. v. Voskuijlen, Senior Vice President, Legal
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