Exhibit 1.1
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MIH LIMITED
(a British Virgin Islands corporation)
800,000 Class A Ordinary Shares
U.S. PURCHASE AGREEMENT
Dated: April 17, 2000
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TABLE OF CONTENTS
PAGE
U.S. PURCHASE AGREEMENT......................................................................1
SECTION 1. REPRESENTATIONS AND WARRANTIES...................................................3
(a) Representations and Warranties by the Company.............................3
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS............................3
(ii) 1934 ACT REPORTS.....................................................4
(iii) INDEPENDENT ACCOUNTANTS..........................................4
(iv) FINANCIAL STATEMENTS.............................................4
(v) NO MATERIAL ADVERSE CHANGE IN BUSINESS...............................5
(vi) GOOD STANDING OF THE COMPANY.....................................5
(vii) GOOD STANDING OF SUBSIDIARIES....................................5
(viii) CAPITALIZATION...................................................6
(ix) COMPANY AUTHORIZATION OF AGREEMENT...............................6
(x) AUTHORIZATION AND DESCRIPTION OF SECURITIES..........................6
(xi) ABSENCE OF DEFAULTS AND CONFLICTS................................6
(xii) ABSENCE OF LABOR DISPUTE.........................................7
(xiii) ABSENCE OF PROCEEDINGS...........................................7
(xiv) ACCURACY OF EXHIBITS.............................................8
(xv) POSSESSION OF INTELLECTUAL PROPERTY..............................8
(xvi) ABSENCE OF FURTHER REQUIREMENTS..................................8
(xvii) POSSESSION OF LICENSES AND PERMITS...............................8
(xviii) TITLE TO PROPERTY................................................9
(xix) COMPLIANCE WITH RESEARCH GUIDELINES..............................9
(xx) INVESTMENT COMPANY ACT...........................................9
(xxi) ENVIRONMENTAL LAWS...............................................9
(xxii) REGISTRATION RIGHTS.............................................10
(xxiii) PASSIVE FOREIGN INVESTMENT COMPANY..............................10
(xxiv) PASSIVE FOREIGN HOLDING COMPANY.................................10
(xxv) STATISTICAL AND MARKET-RELATED DATA.............................10
(xxvi) JOHANNESBURG STOCK EXCHANGE.....................................10
(xxvii) ABSENCE OF MANIPULATION.........................................10
(b) OFFICERS' CERTIFICATES...................................................10
SECTION 2. SALE AND DELIVERY TO U.S. UNDERWRITERS; CLOSING.................................10
(a) INITIAL SECURITIES.......................................................10
(b) OPTION SECURITIES........................................................11
(c) PAYMENT.Payment..........................................................11
(d) DENOMINATIONS; REGISTRATION..............................................12
SECTION 3. COVENANTS OF THE COMPANY........................................................12
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS...........12
(b) FILING OF AMENDMENTS.....................................................12
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PAGE
(c) DELIVERY OF REGISTRATION STATEMENTS......................................13
(d) DELIVERY OF PROSPECTUSES.................................................13
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS................................13
(f) BLUE SKY QUALIFICATIONS..................................................13
(g) RULE 158.................................................................14
(h) USE OF PROCEEDS..........................................................14
(i) RESTRICTION ON SALE OF SECURITIES........................................14
(j) REPORTING REQUIREMENTS...................................................14
SECTION 4. PAYMENT OF EXPENSES.............................................................14
(a) EXPENSES.................................................................14
(b) Termination of Agreement.................................................15
SECTION 5. CONDITIONS OF U.S. UNDERWRITERS' OBLIGATIONS....................................15
(a) Effectiveness of Registration Statement..................................15
(b) OPINION OF COUNSEL FOR COMPANY...........................................15
(c) OPINION OF COUNSEL FOR U.S. UNDERWRITERS.................................16
(d) OFFICERS' CERTIFICATE....................................................16
(e) ACCOUNTANT'S COMFORT LETTER..............................................16
(f) BRING-DOWN COMFORT LETTER................................................16
APPROVAL OF LISTING......................................................17
(h) NO OBJECTION.............................................................17
(i) LOCK-UP AGREEMENTS.......................................................17
(j) PURCHASE OF INITIAL INTERNATIONAL SECURITIES.............................17
(k) CONDITIONS TO PURCHASE OF U.S. OPTION SECURITIES.........................17
(i) OFFICERS' CERTIFICATE...............................................17
(ii) OPINION OF COUNSEL FOR COMPANY......................................17
(iii) OPINION OF COUNSEL FOR U.S. UNDERWRITERS........................18
(iv) BRING-DOWN COMFORT LETTER.......................................18
(l) ADDITIONAL DOCUMENTS.....................................................18
(m) TERMINATION OF AGREEMENT.................................................18
SECTION 6. INDEMNIFICATION.................................................................18
(a) INDEMNIFICATION OF U.S. UNDERWRITERS BY COMPANY..........................18
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS.......................19
(c) ACTIONS AGAINST PARTIES; NOTIFICATION....................................19
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE.......................20
SECTION 7. CONTRIBUTION....................................................................20
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY..................21
SECTION 9. TERMINATION OF AGREEMENT........................................................22
(a) TERMINATION; GENERAL.....................................................22
(b) LIABILITIES..............................................................22
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SECTION 10. DEFAULT BY ONE OR MORE OF THE U.S. UNDERWRITERS................................22
SECTION 11. DEFAULT BY THE COMPANY.........................................................23
SECTION 12. NOTICES........................................................................23
SECTION 13. PARTIES........................................................................23
SECTION 14. GOVERNING LAW AND TIME.........................................................23
SECTION 15. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES............24
SECTION 16. JUDGMENT CURRENCY..............................................................24
SECTION 17. EFFECT OF HEADINGS.............................................................25
SECTION 18. COUNTERPARTS...................................................................25
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SCHEDULES
Schedule A - List of U.S. Underwriters...........................Sch A-1
Schedule B - List of Selling Shareholders........................Sch B-1
Schedule C - Pricing Information.................................Sch C-1
Schedule D - List of Persons subject to Lock-up...................Sch D-1
EXHIBITS
Exhibit A - Form of Opinion of Company=s Counsel..................A-1
Exhibit B - Form of Lock-up Letter....................................B-1
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MIH LIMITED
(a British Virgin Islands corporation)
800,000 Class A Ordinary Shares
(No Par Value)
U.S. PURCHASE AGREEMENT
April 17, 2000
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
as U.S. Representative of the several U.S. Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
MIH Limited, an international business company organized under the laws
of the British Virgin Islands (the "COMPANY") confirms its respective agreements
with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("XXXXXXX XXXXX") and each of the U.S. Underwriters named in SCHEDULE A hereto,
if any (collectively, the "U.S. UNDERWRITERS," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
Xxxxxxx Xxxxx is acting as representative (in such capacity, the "U.S.
REPRESENTATIVE"), with respect to (i) the issue and sale by the Company and the
purchase by the U.S. Underwriters, acting severally and not jointly, of the
respective numbers of Class A Ordinary Shares, no par value, of the Company
("CLASS A ORDINARY SHARES") set forth in said SCHEDULE A and in SCHEDULE B
hereto and (ii) the grant by the Company to the U.S. Underwriters, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 120,000 additional Class A Ordinary Shares to cover
over-allotments, if any. The aforesaid 800,000 Class A Ordinary Shares (the
"INITIAL U.S. SECURITIES") to be purchased by the U.S. Underwriters and all or
any part of the 120,000 Class A Ordinary Shares subject to the option described
in Section 2(b) hereof (the "U.S. OPTION SECURITIES") are hereinafter called,
collectively, the "U.S. SECURITIES".
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It is understood that the Company is concurrently entering
into an agreement dated the date hereof (the "INTERNATIONAL PURCHASE AGREEMENT"
and, together with the U.S. Purchase Agreement, the "PURCHASE AGREEMENTS")
providing for the offering by the Company of 3,200,000 Class A Ordinary Shares
(the "INITIAL INTERNATIONAL SECURITIES") through arrangements with certain
underwriters outside the United States and Canada (the "INTERNATIONAL MANAGERS")
for which Xxxxxxx Xxxxx International and MeesPierson N.V. are acting as the
international representatives (the "INTERNATIONAL REPRESENTATIVES") and the
grant by the Company to the International Managers, acting severally and not
jointly, of an option to purchase all or any part of the International Managers'
pro rata portion of up to 480,000 additional Class A Ordinary Shares solely to
cover over-allotments, if any (the "INTERNATIONAL OPTION SECURITIES" and,
together with the U.S. Option Securities, the "OPTION SECURITIES"). The Initial
International Securities and the International Option Securities are hereinafter
called, collectively, the "INTERNATIONAL SECURITIES." It is understood that the
Company is not obligated to sell, and the U.S. Underwriters are not obligated to
purchase, any Initial U.S. Securities unless all of the Initial International
Securities are contemporaneously purchased by the International Managers.
The U.S. Underwriters and the International Managers are
hereinafter collectively called the "UNDERWRITERS," the Initial U.S. Securities
and the Initial International Securities are hereinafter collectively called the
"INITIAL SECURITIES," and the U.S. Securities and the International Securities
are hereinafter collectively called the "SECURITIES."
The Underwriters will concurrently enter into an
Intersyndicate Agreement of even date herewith (the "INTERSYNDICATE AGREEMENT")
providing for the coordination of certain transactions among the Underwriters
under the direction of Xxxxxxx Xxxxx International (in such capacity, the
"GLOBAL COORDINATOR").
The Company understands that the U.S. Underwriters propose to
make a public offering of the U.S. Securities as soon as the U.S. Representative
deems advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form F-1 (No. 333-32736) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 ACT"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("RULE 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 ACT REGULATIONS") and paragraph (b) of Rule 424 ("RULE 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("RULE 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"TERM SHEET") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the U.S. Securities (the "FORM OF U.S.
PROSPECTUS") and one relating to the International Securities (the "FORM OF
INTERNATIONAL PROSPECTUS"). The Form of International Prospectus is identical to
the Form of U.S. Prospectus, except for the front cover and back cover pages and
the information under the captions "UNDERWRITING" and "ADDITIONAL INFORMATION"
and the inclusion in the Form of International Prospectus of a section under the
caption "CERTAIN NETHERLANDS TAX CONSEQUENCES." The information included in any
such prospectus or in any such Term Sheet,
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as the case may be, that was omitted from such registration statement at the
time it became effective but that is deemed to be part of such registration
statement at the time it became effective (a) pursuant to paragraph (b) of Rule
430A is referred to as "RULE 430A INFORMATION" or (b) pursuant to paragraph (d)
of Rule 434 is referred to as "RULE 434 INFORMATION." Each Form of U.S.
Prospectus and Form of International Prospectus used before such registration
statement became effective, and any prospectus that omitted, as applicable, the
Rule 430A Information or the Rule 434 Information, that was used after such
effectiveness and prior to the execution and delivery of this Agreement, is
herein called a "PRELIMINARY PROSPECTUS." Such registration statement, including
the exhibits thereto and the schedules thereto, at the time it became effective
and including the Rule 430A Information and the Rule 434 Information, as
applicable, is herein called the "REGISTRATION STATEMENT." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "RULE 462(b) REGISTRATION STATEMENT," and after such filing
the term "REGISTRATION STATEMENT" shall include the Rule 462(b) Registration
Statement. The final Form of U.S. Prospectus and the final Form of International
Prospectus in the forms first furnished to the Underwriters for use in
connection with the offering of the Securities are herein called the "U.S.
PROSPECTUS" and the "INTERNATIONAL PROSPECTUS," respectively, and collectively,
the "PROSPECTUSES." If Rule 434 is relied on, the terms "U.S. PROSPECTUS" and
"INTERNATIONAL PROSPECTUS" shall refer to the preliminary U.S. Prospectus dated
April 3, 2000 and the preliminary International Prospectus dated April 3, 2000,
respectively, each together with the applicable Term Sheet and all references in
this Agreement to the date of such Prospectuses shall mean the date of the Term
Sheet. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the U.S. Prospectus, the International
Prospectus or any Term Sheet or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each U.S. Underwriter as of the date hereof, as of
the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each U.S.
Underwriter, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933
4
Act and the 1933 Act Regulations and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Neither of the Prospectuses nor any amendments
or supplements thereto, at the time the Prospectuses or any such
amendments or supplements thereto were issued and at the Closing Time
(and, if any Option Securities are purchased, at the Date of Delivery),
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. If Rule 434 is used, the Company
will comply with the requirements of Rule 434 and the Prospectuses
shall not be "materially different," as such term is used in Rule 434,
from the prospectuses included in the Registration Statement at the
time it became effective. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or U.S. Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by or
on behalf of any U.S. Underwriter through the U.S. Representative
expressly for use in the Registration Statement or U.S. Prospectus.
Each preliminary prospectus and the prospectuses filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and each preliminary
prospectus and the U.S. Prospectus delivered to the U.S. Underwriters
for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) 1934 ACT REPORTS. The Company has filed with the
Commission all reports required to be filed under the Securities
Exchange Act of 1934 (the "1934 ACT"), and complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 ACT
REGULATIONS"), as applicable, and, when read together with the
information in the Prospectuses, at the time the Registration Statement
became effective, at the time the Prospectuses were issued and at the
Closing Time (and if any Option Securities are purchased, at the Date
of Delivery), such reports did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
(iii) INDEPENDENT ACCOUNTANTS. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements included
in the Registration Statement and the Prospectuses, together with the
related schedules and notes, present fairly the financial position of
the entities to which they relate as of the dates indicated and their
respective results of operations, stockholders' equity and cash flows
for the periods specified; said financial statements have been prepared
in conformity with (A) generally accepted accounting principles under
International Accounting Standards ("IAS GAAP") (in the case
5
of the financial statements of the Company and its subsidiaries and
those of the Acquired MIH Businesses (as such term is used in the
Prospectuses)), (B) generally accepted accounting principles in
Thailand ("THAI GAAP") (in the case of United Broadcasting Corporation
Public Company Limited and its subsidiaries) and (C) generally accepted
accounting principles in the United States ("U.S. GAAP") (in the case
of Spyglass, Inc.), in each case applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement present fairly in accordance
with IAS GAAP, Thai GAAP or U.S. GAAP, as applicable, the information
required to be stated therein. The selected financial data and the
summary financial information included in the Prospectuses present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement.
(v) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "MATERIAL ADVERSE EFFECT"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, that are material with
respect to the Company and its subsidiaries considered as one
enterprise and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the British Virgin Islands and has corporate power
and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectuses and to enter into and
perform its obligations under this Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing would not, singly or in the aggregate, result in a
Material Adverse Effect.
(vii) GOOD STANDING OF SUBSIDIARIES. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) and all entities in which the Company has a direct or
indirect majority equity interest or voting power (each a "SUBSIDIARY"
and, collectively, the "SUBSIDIARIES") has been duly organized and is
validly existing as a corporation, general partnership, limited
partnership, limited liability company or similar entity in good
standing (to the extent applicable) under the laws of the jurisdiction
of its organization, has organizational power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectuses and is duly qualified as a foreign
corporation (or other such entity) to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not, singly or in the aggregate, result in a
Material Adverse Effect;
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except as otherwise disclosed in the Registration Statement, all of the
issued and outstanding shares of capital stock or other ownership
interests of each Subsidiary have been duly authorized and validly
issued, are fully paid and non-assessable (to the extent applicable)
and to the extent owned, directly or indirectly, by the Company, are
owned free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. None of the outstanding shares of capital
stock or other ownership interests of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of
such Subsidiary. The only subsidiaries of the Company are (a) the
subsidiaries listed on Exhibit 21 to the Registration Statement and (b)
certain other subsidiaries which, considered in the aggregate as a
single Subsidiary, do not constitute a "significant subsidiary" as
defined in Rule 1-02 of Regulation S-X.
(viii) CAPITALIZATION. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectuses in the
column entitled "Actual" under the caption "CAPITALIZATION" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
agreements or employee benefit plans referred to in the Prospectuses or
pursuant to the exercise of convertible securities or options referred
to in the Prospectuses). The shares of issued and outstanding capital
stock of the Company have been duly authorized and validly issued and
are fully paid and non-assessable. None of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive
or other similar rights of any securityholder of the Company.
(ix) COMPANY AUTHORIZATION OF AGREEMENT. The execution,
delivery and performance of this Agreement and the International
Purchase Agreement have been duly authorized by all requisite corporate
action on the part of the Company. This Agreement and the International
Purchase Agreement have been duly executed and delivered by the
Company.
(x) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The
Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized for
issuance and sale to the U.S. Underwriters pursuant to this Agreement
and the International Managers pursuant to the International Purchase
Agreement, respectively, and, when issued and delivered by the Company
pursuant to this Agreement and the International Purchase Agreement,
respectively, against payment of the consideration set forth herein and
in the International Purchase Agreement, respectively, will be validly
issued, fully paid and non-assessable. The Class A Ordinary Shares
conform in all material respects to all statements relating thereto
contained in the Prospectuses and such description conforms to the
rights set forth in the instruments defining the same. No holder of the
Securities will be subject to personal liability by reason of being
such a holder and the issuance of the Securities is not subject to the
preemptive or other similar rights of any securityholder of the
Company.
(xi) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company
nor any Venture (as defined below) is in violation of its charter or
by-laws (or equivalent constitutive documents) or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or
7
credit agreement, note, lease or other agreement or instrument to which
the Company or any Venture is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or
any Venture is subject (collectively, "AGREEMENTS AND INSTRUMENTS")
except for such defaults that would not, singly or in the aggregate,
result in a Material Adverse Effect. The execution, delivery and
performance of this Agreement and the International Purchase Agreement
and the consummation of the transactions contemplated in this
Agreement, the International Purchase Agreement and in the Registration
Statement (including the issuance and sale of the Securities and the
use of the proceeds from the sale of the Securities as described in the
Prospectuses under the caption "USE OF PROCEEDS") and compliance by the
Company with its obligations under this Agreement and the International
Purchase Agreement have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any Venture pursuant to, the
Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not, singly or in
the aggregate, result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or
by-laws (or equivalent constitutive documents) of the Company or any
Venture or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
Venture or any of their assets, properties or operations. As used
herein, (a) "VENTURE" means any entity in which the Company has a
direct or indirect greater than 20% equity interest or voting power and
(b) a "REPAYMENT EVENT" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any Venture.
(xii) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Company or any Venture exists or, to the knowledge of
the Company, is threatened, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any Venture's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to,
singly or in the aggregate, result in a Material Adverse Effect.
(xiii) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any Venture, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might, singly or in the aggregate, reasonably be expected to result in
a Material Adverse Effect, or which (other than as disclosed in the
Registration Statement), singly or in the aggregate, may reasonably be
expected to materially and adversely affect the properties or assets of
the Company or any Venture or the consummation of the transactions
contemplated in this Agreement and the International Purchase Agreement
or the performance by the Company of its obligations hereunder or
thereunder. The aggregate of all pending legal or governmental
proceedings to which the
8
Company or any Venture is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(xiv) ACCURACY OF EXHIBITS. There are no contracts or
documents which are required to be described in the Registration
Statement or the Prospectuses or to be filed as exhibits thereto which
have not been so described and filed as required.
(xv) POSSESSION OF INTELLECTUAL PROPERTY. The Company and
the Ventures own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "INTELLECTUAL PROPERTY") necessary
to carry on the business now operated by them, and neither the Company
nor any Venture has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect
to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any Venture therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xvi) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations under this Agreement and the International Purchase
Agreement, in connection with the offering, issuance or sale of the
Securities under this Agreement and the International Purchase
Agreement or the consummation of the transactions contemplated by this
Agreement and the International Purchase Agreement, except such as have
been already obtained and are in full force and effect or as may be
required (i) under the 1933 Act or the 1933 Act Regulations or state
securities laws or (ii) under the laws and regulations of jurisdictions
outside of the United States and Canada where the International
Managers may offer and sell the International Securities.
(xvii) POSSESSION OF LICENSES AND PERMITS. Except as otherwise
disclosed in the Registration Statement, the Company and the Ventures
possess such permits, licenses, approvals, consents and other
authorizations (collectively, "GOVERNMENTAL LICENSES") issued by the
appropriate national, provincial, state or local regulatory agencies or
bodies necessary to conduct the business now operated by them. The
Company and the Ventures are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, result in a
Material Adverse Effect. All of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not, singly or in the aggregate,
result in a Material Adverse Effect. Neither the Company nor any
Venture has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses
9
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
(xviii) TITLE TO PROPERTY. The Company and the Ventures have
good and marketable title to all real property owned by the Company and
the Ventures and good title to all other properties owned by them, in
each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (A) are described in the Prospectuses or (B) do not, singly or in
the aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company or any Venture. All of the leases and subleases material to
the business of the Company and the Ventures, considered as one
enterprise, and under which the Company or any Venture holds properties
described in the Prospectuses, are in full force and effect, and
neither the Company nor any Venture has any notice of any material
claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any Venture under any of the leases or
subleases mentioned above, or affecting or questioning the rights of
the Company or such Venture to the continued possession of the leased
or subleased premises under any such lease or sublease.
(xix) COMPLIANCE WITH RESEARCH GUIDELINES. The Company,
directly or indirectly, has not taken and will not take any action that
is inconsistent with the guidelines set forth in the memorandum dated
March 1, 2000 of Xxxxxxx Xxxxxxx & Xxxxxxxx relating to research
reports, and, without limiting the foregoing, has not distributed and
will not distribute, in any manner, any research reports contemplated
by such research guidelines or any portion thereof other than in
conformity with such research guidelines.
(xx) INVESTMENT COMPANY ACT. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectuses will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 ACT").
(xxi) ENVIRONMENTAL LAWS. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any Venture is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "HAZARDOUS MATERIALS") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "ENVIRONMENTAL
LAWS"), (B) the Company and the Ventures have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial
10
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to
any Environmental Law against the Company or any Venture and (D) there
are no events or circumstances that might reasonably be expected to
form the basis of an order for clean-up or remediation, or an action,
suit or proceeding by any private party or governmental body or agency,
against or affecting the Company or any Venture relating to Hazardous
Materials or any Environmental Laws.
(xxii) REGISTRATION RIGHTS. Except as disclosed in the
Prospectuses, there are no persons with registration rights or other
similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the
1933 Act.
(xxiii) PASSIVE FOREIGN INVESTMENT COMPANY. The Company, based
on its current operations and assets and taking into consideration the
proceeds of the offering, to the best of its knowledge believes that it
is not a passive foreign investment company (a "PFIC") within the
meaning of Section 1219 et seq. of the United States Internal Revenue
Code of 1986, as amended (the "CODE"), and does not expect to become a
PFIC.
(xxiv) PASSIVE FOREIGN HOLDING COMPANY. The Company, to the
best of its knowledge, believes that it is not a foreign personal
holding company (a "FPHC") within the meaning of Section 551 et seq. of
the Code.
(xxv) STATISTICAL AND MARKET-RELATED DATA. The statistical
and market-related data included in the Prospectuses are based on or
derived from sources that the Company believes to be reliable and
accurate in all material respects or represent the Company's good faith
estimates that are made on the basis of data derived from such sources.
(xxvi) JOHANNESBURG STOCK EXCHANGE. All authorizations,
approvals, consents, qualifications or decrees of the Johannesburg
Stock Exchange that are necessary or required for the performance by
the Company of its obligations hereunder have been obtained.
(xxvii) ABSENCE OF MANIPULATION. The Company has not taken,
and will not take, directly or indirectly, any action which is designed
to or which has constituted or which might reasonably be expected to
cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(b) OFFICERS' CERTIFICATES. Any certificate signed by any
officer of the Company or any Ventures delivered to the Global
Coordinator, the U.S. Representative or to counsel for the U.S.
Underwriters shall be deemed a representation and warranty by the
Company to each U.S. Underwriter as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO U.S. UNDERWRITERS; CLOSING
(a) INITIAL SECURITIES. The Company agrees to sell to each U.S.
Underwriter, severally and not jointly, and on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, each U.S. Underwriter, severally and not jointly, agrees
11
to purchase from the Company, at the price per share set forth in SCHEDULE C,
the number of Initial U.S. Securities set forth in SCHEDULE A opposite the name
of such U.S. Underwriter, plus any additional number of Initial U.S. Securities
which such U.S. Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) OPTION SECURITIES. In addition, the Company hereby grants an
option to the U.S. Underwriters, severally and not jointly, to purchase up to an
additional 120,000 Class A Ordinary Shares at the price per share set forth in
SCHEDULE C, less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial U.S. Securities but not
payable on the U.S. Option Securities. The option hereby granted will expire 30
days after the date hereof and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial U.S. Securities
upon notice by the Global Coordinator to the Company setting forth the number of
U.S. Option Securities as to which the several U.S. Underwriters are then
exercising the option and the time and date of payment and delivery for such
U.S. Option Securities. Any such time and date of delivery for the U.S. Option
Securities (a "DATE OF DELIVERY") shall be determined by the Global Coordinator,
but shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter defined. If
the option is exercised as to all or any portion of the U.S. Option Securities,
each of the U.S. Underwriters, acting severally and not jointly, on the basis of
the representations and warranties of the Company contained herein and subject
to the terms and conditions herein set forth, will purchase that proportion of
the total number of U.S. Option Securities then being purchased which the number
of Initial U.S. Securities set forth in SCHEDULE A opposite the name of such
U.S. Underwriter bears to the total number of Initial U.S. Securities, subject
in each case to such adjustments as the Global Coordinator in its discretion
shall make to eliminate any sales or purchases of fractional shares.
(c) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Xxxxxxx
Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such
other place as shall be agreed upon by the Global Coordinator and the Company,
at 10:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after
4:30 P.M. (Eastern time) on the date hereof) business day after the date hereof
(unless postponed in accordance with the provisions of Section 10), or such
other time not later than ten business days after such date as shall be agreed
upon by the Global Coordinator, and the Company (such time and date of payment
and delivery being herein called "CLOSING TIME").
In addition, in the event that any or all of the U.S. Option Securities
are purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Global Coordinator and the Company on each Date of Delivery as specified in the
notice from the Global Coordinator to the Company.
Payment shall be made to the Company by wire transfer of U.S. dollars
in immediately available funds to a bank account designated by the Company,
against delivery to the U.S. Representative for the respective accounts of the
U.S. Underwriters of certificates for the U.S. Securities to be purchased by
them. It is understood that each U.S. Underwriter has authorized the U.S.
Representative, for its account, to accept delivery of, receipt for, and make
payment of the
12
purchase price for, the Initial U.S. Securities and the U.S. Option Securities,
if any, which it has agreed to purchase. Xxxxxxx Xxxxx, individually and not as
representative of the U.S. Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Initial U.S. Securities or the U.S.
Option Securities, if any, to be purchased by any U.S. Underwriter whose funds
have not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such U.S. Underwriter from
its obligations hereunder.
(d) DENOMINATIONS; REGISTRATION. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representative may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
U.S. Securities and the U.S. Option Securities, if any, will be made available
for examination and packaging by the U.S. Representative in The City of New York
not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
U.S. Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify
the Global Coordinator immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectuses or any
amended Prospectuses shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information and (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect
the filings necessary pursuant to Rule 424(b) and will take such steps
as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order
is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) FILING OF AMENDMENTS. The Company will give the Global
Coordinator notice of its intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)), any
Term Sheet or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectuses, will furnish the Global Coordinator
with copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file or
use any such document to which the Global Coordinator or counsel for the
U.S. Underwriters shall object.
13
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished
or will deliver to the U.S. Representative and counsel for the U.S.
Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference
therein) and signed copies of all consents and certificates of experts,
and will also deliver to the U.S. Representative, upon request from the
U.S. Representative, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the U.S. Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the U.S.
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to each U.S.
Underwriter, without charge, as many copies of each preliminary
prospectus as such U.S. Underwriter reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted
by the 1933 Act. The Company will furnish to each U.S. Underwriter,
without charge, during the period when the U.S. Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the U.S. Prospectus (as amended or supplemented) as such U.S.
Underwriter may reasonably request. The U.S. Prospectus and any
amendments or supplements thereto furnished to the U.S. Underwriters
will be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will
comply with the 1933 Act and the 1933 Act Regulations so as to permit
the completion of the distribution of the Securities as contemplated in
this Agreement, the International Purchase Agreement and the
Prospectuses. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Securities, any
event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the U.S. Underwriters or for
the Company, to amend the Registration Statement or amend or supplement
any Prospectus in order that the Prospectuses will not include any
untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel,
at any such time to amend the Registration Statement or amend or
supplement any Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly
prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectuses
comply with such requirements, and the Company will furnish to the U.S.
Underwriters such number of copies of such amendment or supplement as
the U.S. Underwriters may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts,
in cooperation with the U.S. Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states
and other jurisdictions as the Global Coordinator
14
may designate and to maintain such qualifications in effect for a period
of not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement;
PROVIDED, HOWEVER, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Securities have been so qualified, the
Company will file such statements and reports as may be required by the
laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
(g) RULE 158. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to
its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) USE OF PROCEEDS. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified
in the Prospectuses under "USE OF PROCEEDS."
(i) RESTRICTION ON SALE OF SECURITIES. During a period of 180
days from the date of the Prospectuses, the Company will not, without
the prior written consent of Xxxxxxx Xxxxx, (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of any
Class A Ordinary Shares or any securities convertible into or
exercisable or exchangeable for Class A Ordinary Shares (including,
without limitation, the Class B Ordinary Shares, no par value, of the
Company) or file any registration statement under the 1933 Act with
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the
Class A Ordinary Shares, whether any such swap or transaction described
in clause (i) or (ii) above is to be settled by delivery of Class A
Ordinary Shares or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Securities to be sold
hereunder or under the International Purchase Agreement, (B) the
issuance of any Class A Ordinary Shares by the Company upon the exercise
of options or warrants or the conversion of securities outstanding on
the date hereof and referred to in the Prospectuses; or (C) the filing
by the Company of a registration statement solely to register shares of
Thomson Consumer Electronics, Inc., a shareholder of the Company, as
disclosed in the Registration Statement.
(j) REPORTING REQUIREMENTS. The Company, during the period when
the Prospectuses are required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods referred to
therein.
SECTION 4. PAYMENT OF EXPENSES.
15
(a) EXPENSES. The Company will pay all expenses incident to the
performance of its respective obligations under this Agreement, including (i)
the preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, issuance and delivery of the certificates for the
Securities to the U.S. Underwriters, including any stock or other transfer taxes
and any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the U.S. Underwriters and the transfer of the Securities between
the U.S. Underwriters and the International Managers, (iii) the fees and
disbursements of the Company's counsel, accountants and other advisors, (iv) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the U.S. Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey and any supplement
thereto, (v) the printing and delivery to the U.S. Underwriters of copies of
each preliminary prospectus, any Term Sheets and of the Prospectuses and any
amendments or supplements thereto, (vi) the preparation, printing and delivery
to the U.S. Underwriters of copies of the Blue Sky Survey and any supplement
thereto, (vii) the fees and expenses of any transfer agent or registrar for the
Securities, (viii) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the U.S. Underwriters in connection with, the review
by the National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Securities and (ix) the fees and expenses incurred in
connection with the inclusion of the Securities in the Nasdaq National Market
and the Amsterdam Stock Exchange.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated
by the U.S. Representative in accordance with the provisions of Section 5
hereof (other than in accordance with paragraph (l) as a result of the
failure of the International Managers to comply with their obligations under
the International Purchase Agreement) or Section 9(a)(i) hereof, the Company
shall reimburse the U.S. Underwriters for all of their out-of-pocket expenses
incurred by the U.S. Underwriters in connection with this Agreement or the
offering of the Securities contemplated hereunder, including the reasonable
fees and disbursements of counsel and special counsel for the U.S.
Underwriters..
SECTION 5. CONDITIONS OF U.S. UNDERWRITERS' OBLIGATIONS. The
obligations of the several U.S. Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, shall have
become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the U.S. Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the
Commission in accordance with Rule 424(b) (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A) or, if the
Company has elected to rely upon Rule 434, a Term Sheet shall have been
filed with the Commission in accordance with Rule 424(b).
16
(b) OPINION OF COUNSEL FOR COMPANY. At Closing Time, the U.S.
Representative shall have received the favorable opinion, dated as of the date
on which the Closing Time occurs, of (i) Cravath, Swaine & Xxxxx, counsel for
the Company, (ii) Xxxxxx Westwood & Riegels, special British Virgin Islands
counsel for the Company, (iii) Xxxxx Dutilh, special Dutch counsel for the
Company, (iv) Xxxxx Xxxxx, Esq., group general counsel of the Company (as to
South African matters), (v) Socrates Loizedes, special Greek counsel for the
Company and (vi) Xxxxx & Xxxxx, special Thai counsel for the Company, each in
form and substance satisfactory to counsel for the U.S. Underwriters, together
with signed or reproduced copies of such letter for each of the other U.S.
Underwriters, to the effect set forth in Exhibits A-1 through A-6 hereto,
respectively.
(c) OPINION OF COUNSEL FOR U.S. UNDERWRITERS. At Closing Time, the
U.S. Representative shall have received the favorable opinion, dated as of
Closing Time, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the U.S. Underwriters,
Linklaters & Alliance, special Thai counsel to the U.S. Underwriters, Xxxxx &
Wood, special Thai counsel to the U.S. Underwriters and O'Xxxx Xxxxxxx X'Xxxx
Xxxxx Xxxxxxxx & Xxxxxx, special British Virgin Islands counsel to the U.S.
Underwriters, together with signed or reproduced copies of such letter for each
of the other U.S. Underwriters as to such matters as are reasonably requested by
the Representative.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectuses, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
U.S. Representative shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of the date on which the Closing Time occurs, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct with
the same force and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to Closing Time, and (iv)
no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
pending or are contemplated by the Commission.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of
this Agreement, the U.S. Representative shall have received (i) from
PricewaterhouseCoopers Inc. a letter dated such date, in form and substance
satisfactory to the U.S. Representative, together with signed or reproduced
copies of such letter for each of the other U.S. Underwriters containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectuses and (ii) from Ernst & Young LLP a letter in form and substance
acceptable to the U.S. Representative describing certain procedures followed
with respect to certain financial information contained in the Registration
Statement.
17
(f) BRING-DOWN COMFORT LETTER. At Closing Time, the U.S.
Representative shall have received from PricewaterhouseCoopers Inc. a letter,
dated as of the date on which the Closing Time occurs, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (g)
of this Section, except that the specified date referred to shall be a date not
more than three business days prior to the date on which the Closing Time
occurs.
(g) APPROVAL OF LISTING. At Closing Time, the Securities shall have
been approved for listing on the Amsterdam Stock Exchange and shall have been
approved for inclusion in the Nasdaq National Market, in each case, subject only
to official notice of issuance.
(h) NO OBJECTION. The NASD shall have confirmed that it has not
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(i) LOCK-UP AGREEMENTS. At the date of this Agreement, the U.S.
Representative shall have received an agreement substantially in the form of
Exhibit C hereto signed by the persons listed on Schedule D hereto.
(j) PURCHASE OF INITIAL INTERNATIONAL SECURITIES. Contemporaneously
with the purchase by the U.S. Underwriters of the Initial U.S. Securities under
this Agreement, the International Managers shall have purchased the Initial
International Securities under the International Purchase Agreement.
(k) CONDITIONS TO PURCHASE OF U.S. OPTION SECURITIES. In the event
that the U.S. Underwriters exercise their option provided in Section 2(b) hereof
to purchase all or any portion of the U.S. Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any subsidiary of the
Company hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery, the U.S. Representative shall have received:
(i) OFFICERS' CERTIFICATE. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(e) hereof remains true and correct as of such
Date of Delivery.
(ii) OPINION OF COUNSEL FOR COMPANY. The favorable opinion of (i)
Cravath, Swaine & Xxxxx, counsel for the Company, together with the
favorable opinion of (ii) Xxxxxx Westwood & Riegels, special
British Virgin Islands counsel for the Company, (iii) Xxxxx Dutilh,
special Dutch counsel for the Company, (iv) Xxxxx Xxxxx, Esq. group
general counsel of the Company (as to South African matters), (v)
Socrates Loizedes, special Greek counsel for the Company and (vi)
Xxxxx & Xxxxx, special Thai counsel for the Company, each in form
and substance satisfactory to counsel for the U.S. Underwriters,
dated such Date of Delivery, relating to the Option
18
Securities to be purchased on such Date of Delivery and otherwise
to the same effect as the opinion required by Section 5(b) hereof.
(iii) OPINION OF COUNSEL FOR U.S. UNDERWRITERS. The favorable
opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the U.S.
Underwriters, Xxxxx & Wood, special Thai counsel to the U.S.
Underwriters, Linklaters & Alliance, special Thai counsel to the
U.S. Underwriters, and O'Xxxx Xxxxxxx X'Xxxx Xxxxx Xxxxxxxx &
Xxxxxx, special British Virgin Islands counsel to the U.S.
Underwriters dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise
to the same effect as the opinion required by Section 5(d) hereof.
(iv) BRING-DOWN COMFORT LETTER. A letter from
PricewaterhouseCoopers LLP, in form and substance satisfactory to
the U.S. Representative and dated such Date of Delivery,
substantially in the same form and substance as the letter
furnished to the U.S. Representative pursuant to Section 5(h)
hereof, except that the "specified date" in the letter furnished
pursuant to this paragraph shall be a date not more than five days
prior to such Date of Delivery.
(l) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of
Delivery, counsel for the U.S. Underwriters shall have been furnished
with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of
the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory
in form and substance to the U.S. Representative and counsel for the
U.S. Underwriters.
(m) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of U.S. Option Securities, on a Date of Delivery which is
after the Closing Time, the obligations of the several U.S.
Underwriters to purchase the relevant Option Securities, may be
terminated by the U.S. Representative by notice to the Company at any
time at or prior to Closing Time or such Date of Delivery, as the
case may be, and such termination shall be without liability of any
party to any other party except as provided in Section 4 and except
that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF U.S. UNDERWRITERS BY COMPANY. The Company
agrees to indemnify and hold harmless each U.S. Underwriter and each person, if
any, who controls each U.S. Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
19
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectuses (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; PROVIDED, that (subject to Section
6(e) below) any such settlement is effected with the written consent of the
Company; and
(iii)against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the U.S.
Representative), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
U.S. Underwriter through the U.S. Representative expressly for use in the
Registration Statement (or any amendment or supplement thereto), including the
Rule 430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the U.S. Prospectus (or any amendment or supplement
thereto).
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each U.S.
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
or (b), as the case may be, of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment or supplement thereto),
including the Rule 430A Information and the Rule 434 Information, if applicable,
or any preliminary U.S. prospectus or the U.S. Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such U.S. Underwriter through the U.S.
Representative expressly for use in the Registration Statement (or any amendment
or supplement thereto) or such preliminary prospectus or the U.S. Prospectus (or
any amendment or supplement thereto).
20
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
or 6(b) above, counsel to the indemnified parties shall be selected by the U.S.
Representative, and, in the case of parties indemnified pursuant to Section 6(c)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; PROVIDED, HOWEVER, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties 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. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a) or 6(b) effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the U.S. Underwriters on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of the
U.S. Underwriters on the other hand in connection with the statements or
omissions
21
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the U.S.
Underwriters on the other hand in connection with the offering of the U.S.
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the U.S.
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the U.S.
Underwriters, in each case as set forth on the cover of the U.S. Prospectus, or,
if Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the U.S. Securities as set forth on
such cover.
The relative fault of the Company on the one hand and the U.S.
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the U.S. Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the U.S. Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the U.S. Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no U.S. Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the U.S. Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such U.S. Underwriter has otherwise been required to pay by reason of any 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 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a U.S.
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The U.S.
Underwriters' respective obligations to
22
contribute pursuant to this Section 7 are several in proportion to the number of
Initial U.S. Securities set forth opposite their respective names in SCHEDULE A
hereto and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any U.S. Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the U.S. Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The U.S. Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the U.S. Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the U.S.
Representative, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission, the
Amsterdam Stock Exchange or the Nasdaq National Market, or if trading generally
on the New York Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) if a banking moratorium has been declared by
South African, Dutch, United States Federal or New York authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE U.S. UNDERWRITERS. If one or
more of the U.S. Underwriters shall fail at Closing Time or a Date of Delivery
to purchase the Securities which it or they are obligated to purchase under this
Agreement (the "DEFAULTED SECURITIES"), the U.S. Representative shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting U.S. Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the U.S.
Representative shall not have completed such arrangements within such 24-hour
period, then:
23
(a) if the number of Defaulted Securities does not exceed 10% of
the number of U.S. Securities to be purchased on such date, each of the
non-defaulting U.S. Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of U.S. Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the U.S. Underwriters to purchase and of the Company to
sell the Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of any
non-defaulting U.S. Underwriter.
No action taken pursuant to this Section shall relieve any defaulting U.S.
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the U.S.
Underwriters to purchase and the Company to sell the relevant U.S. Option
Securities, as the case may be, either (i) the U.S. Representative or (ii) the
Company shall have the right to postpone Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "U.S. Underwriter"
includes any person substituted for a U.S. Underwriter under this Section 10.
SECTION 11. DEFAULT BY THE COMPANY. If the Company shall fail at Closing
Time or at the Date of Delivery to sell the number of Securities that it is
obligated to sell hereunder, then this Agreement shall terminate without any
liability on the part of any nondefaulting party; PROVIDED, HOWEVER, that the
provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect.
No action taken pursuant to this Section shall relieve the Company from
liability, if any, in respect of such default.
SECTION 12. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the U.S.
Underwriters shall be directed to the U.S. Representative c/o Merrill Xxxxx &
Co., Xxxxxxx Xxxxx Xxxxxx, Xxxxxx & Xxxxx Incorporated at North Tower, World
Financial Center, New York, New York 10281-1201, attention of Investment
Banking; and notices to the Company shall be directed to it at Myriad
International Holdings B.V., Jupiterstraat 13-15, 2132 HC Hoofddorp, The
Netherlands, attention of Group Director -- Corporate Finance.
SECTION 13. PARTIES. This Agreement shall each inure to the benefit of and
be binding upon the U.S. Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the U.S.
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7, and their
heirs and
24
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the U.S. Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors, and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any U.S. Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICT OF LAWS. SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
SECTION 15. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES. By the execution and delivery of this Agreement, the Company (i)
acknowledges that it has, by separate written instrument, designated and
appointed CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (and
any successor entity), as its authorized agent upon which process may be served
in any suit or proceeding arising out of or relating to this Agreement that may
be instituted in any Federal or state court in the Borough of Manhattan, City of
New York, State of New York, or brought under the United States Federal or state
securities laws, and acknowledge that CT Corporation System has accepted such
designation, (ii) submits to the non-exclusive jurisdiction of any such court in
any such suit or proceeding and (iii) agrees that service of process upon CT
Corporation System and written notice of said service to the Company in
accordance with Section 12 shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding. The Company further
agrees to take any and all action, including the execution and filing of any and
all such documents and instruments, as may be necessary to continue such
designation and appointment of CT Corporation System in full force and effect so
long as any of the Class A Ordinary Shares shall be outstanding; PROVIDED,
HOWEVER, that the Company may, by written notice to the U.S. Representative,
designate such additional or alternative agent for service of process under this
Section 15 that (i) maintains an office located in the Borough of Manhattan,
City of New York, in the State of New York and (ii) is either (x) counsel for
the Company (y) a corporate service company which acts as agent for service of
process for other persons in the ordinary course of its business. Such written
notice shall identify the name of such agent for process and the address of the
office of such agent for service of process in the Borough of Manhattan, City of
New York, State of New York.
To the extent that the Company or any of its respective properties,
assets or revenues may or may hereafter become entitled to, or have attributed
to the Company, any right of immunity, on the grounds of sovereignty or
otherwise, from any legal action, suit or proceeding, from the giving of any
relief in any such legal action, suit or proceeding, from setoff or
counterclaim, from the jurisdiction of any New York or U.S. Federal court, from
service of process, from attachment upon or prior to judgment, from attachment
in aid of execution of judgment, or from execution of judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement of any
judgment, in any such court in which proceedings may at any time be commenced,
with respect to the obligations and liabilities of the Company, or any other
matter under or arising out of or in connection with this Agreement or the
International Purchase Agreement, the Company hereby
25
irrevocably and unconditionally waives such right, and agrees not to plead or
claim any such immunity, and consent to such relief or enforcement.
SECTION 16. JUDGMENT CURRENCY. The Company agrees to indemnify each U.S.
Underwriter and each person, if any, who controls any U.S. Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against
any loss incurred by such party as a result of any judgment or order being given
or made against the Company for any U.S. dollar amount due under this Agreement
and such judgment or order being expressed and paid in a currency (the "JUDGMENT
CURRENCY") other than United States dollars and as a result of any variation as
between (i) the rate of exchange at which the United States dollar amount is
converted into the Judgment Currency for the purpose of such judgment or order
and (ii) the spot rate of exchange in The City of New York at which such party
on the date of payment of such judgment or order is able to purchase United
States dollars with the amount of the Judgment Currency actually received by
such party if such party had utilized such amount of Judgment Currency to
purchase United States dollars as promptly as practicable upon such party's
receipt thereof. The foregoing indemnity shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "spot rate of
exchange" shall include any premiums and costs of exchange payable in connection
with the purchase of, or conversion into, United States dollars.
SECTION 17. EFFECT OF HEADINGS. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
26
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the U.S. Underwriters and the Company in accordance with its terms.
Very truly yours,
MIH LIMITED
By:
----------------------------------
Name:
27
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
----------------------------------
Authorized Signatory
For itself and as U.S. Representative of the other U.S. Underwriters, if any,
named in Schedule A hereto.
SCHEDULE A
Number Of
Initial
Name of U.S. Underwriter U.S. Securities
------------------------- ---------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated................................ 800,000
---------
Total....................................................... 800,000
==========
Schedule A-1
SCHEDULE B
Number of Initial Maximum Number of Option
Securities to be Sold Securities to be Sold
--------------------- ------------------------
MIH Limited 800,000 120,000
Total.................. 800,000 120,000
Schedule B-1
SCHEDULE C
MIH LIMITED
800,000 Class A Ordinary Shares
(No Par Value)
1. The initial public offering price per share for the Securities, determined
as provided in Section 2, shall be $o.
2. The purchase price per share for the U.S. Securities to be paid by the
several U.S. Underwriters shall be $o, being an amount equal to the initial
public offering price set forth above less $o per share; provided that the
purchase price per share for any U.S. Option Securities purchased upon the
exercise of the over-allotment option described in Section 2(b) shall be reduced
by an amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial U.S. Securities but not payable on the U.S.
Option Securities.
Schedule C-1
SCHEDULE D
MIH (BVI) Limited
SuperSport International Holdings Limited
Naspers Limited
Schedule D-1
Exhibit A-1
FORM OF OPINION OF CRAVATH, SWAINE & XXXXX
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) OpenTV has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectuses.
(ii) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act on [/-/];
any required filing of the Prospectuses pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b); and, to the best
of our knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
(iii) The information in the Prospectuses under "Shares Eligible
For Future Sale," "United States Federal Income Tax Consequences" to the extent
that it constitutes matters of U.S. law, summaries of U.S. legal matters, or
legal proceedings or legal conclusions of U.S. law, has been reviewed by us and
is correct in all material respects.
(iv) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the 1940
Act.
Nothing has come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable), (except for financial
statements and schedules and other financial data included therein or omitted
therefrom, as to which we need make no statement), at the time such Registration
Statement or any such amendment became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectuses or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included therein or omitted
therefrom, as to which we need make no statement), at the time the Prospectuses
were issued, at the time any such amended or supplemented prospectus was issued
or at the Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of British Virgin Islands, upon the
opinion of Xxxxxx Westwood & Riegels, special counsel to the Company (which
opinion shall be dated and furnished to the Representative(s) at the Closing
Time, shall be satisfactory in form and substance to counsel for the
Underwriters and shall expressly state that the Underwriters may rely on such
opinion as if it were addressed to them), provided that Cravath, Swaine & Xxxxx
shall state in their opinion that they believe that they and the Underwriters
are justified in relying upon such opinion, and (B), as to matters of fact (but
not as to
2
legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
Exhibit A-2
FORM OF OPINION OF XXXXXX WESTWOOD & RIEGELS
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the British Virgin Islands.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the Purchase
Agreements.
(iii) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectuses in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the Purchase Agreements or pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectuses or pursuant to the
exercise of convertible securities or options referred to in the Prospectuses);
the shares of issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; and none of
the outstanding shares of capital stock of the Company was issued in violation
of the preemptive or other similar rights of any securityholder of the Company.
(iv) The Securities to be purchased by the Underwriters from the
Company have been duly authorized for issuance and sale to the Underwriters
pursuant to the Purchase Agreements and, when issued and delivered by the
Company pursuant to the Purchase Agreements against payment of the consideration
set forth in the Purchase Agreements, will be validly issued and fully paid and
non-assessable and no holder of the Securities is or will be subject to personal
liability by reason of being such a holder.
(v) The issuance and sale of the Securities by the Company is not
subject to the preemptive or other similar rights of any securityholder of the
Company.
(vi) Each Subsidiary incorporated in the British Virgin Islands
(collectively, the "BVI Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the British Virgin
Islands, has the corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectuses and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock of the
BVI Subsidiaries has been duly authorized and validly issued, is fully paid and
non-assessable and, to the best of our knowledge, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any of the BVI
2
Subsidiaries was issued in violation of the preemptive or similar rights of any
securityholder of such BVI Subsidiary.
(vii) The Purchase Agreements have been duly authorized, executed
and delivered by the Company.
(viii) The form of certificate used to evidence the Class A
Ordinary Shares complies in all material respects with all applicable statutory
requirements and with any applicable requirements of the Memorandum of
Association and Articles of Association of the Company.
(ix) To the best of our knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation, to which the
Company or any subsidiary is a party, or to which the property of the Company or
any subsidiary is subject, before or brought by any court or governmental agency
or body, domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Purchase Agreements or the performance by the
Company of its obligations thereunder.
(x) The information set forth in the Prospectuses under
"Description of Capital Stock," "Risk Factors--Because we are a British Virgin
Islands company, you may have difficulty protecting your interests in respect of
decisions made by our board of directors," "Risk Factors--Because we are a
British Virgin Islands company, you may not be able to enforce judgments against
us that are obtained in U.S. courts," "Risk Factors--The anti-takeover
provisions contained in our charter could deter a change in control," "British
Virgin Islands Taxation" and in the Registration Statement under Item 14, to the
extent that they constitute a description of the laws and regulations of the
British Virgin Islands, or its respective agencies, authorities or other
governmental bodies, or documents, or proceedings or conclusions of British
Virgin Islands law, are correct in all material respects.
(xi) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court, or governmental
authority or agency of the British Virgin Islands is necessary or required in
connection with the due authorization, execution and delivery of the Purchase
Agreements or for the offering, issuance, sale or delivery of the Securities.
(xii) The execution, delivery and performance of the Purchase
Agreements and the consummation of the transactions contemplated in the Purchase
Agreements and in the Registration Statement (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectuses under the caption "Use of Proceeds") and
compliance by the Company with its obligations under the Purchase Agreements do
not and will not result in any violation of the provisions of the Memorandum of
Association or Articles of Association of the Company or any of the BVI
Subsidiaries, or any applicable British Virgin Islands law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of the BVI Subsidiaries or any of their respective
properties, assets or operations.
3
(xiii) The conduct of the Company's business does not violate the
provisions of its Memorandum of Association or Articles of Association.
(xiv) The choice of New York law to govern the Purchase Agreements
constitutes a valid choice of law insofar as the law of the British Virgin
Islands is concerned. The submission by the Company to the non-exclusive
jurisdiction of any federal or state court sitting in New York County, New York
is a valid submission insofar as the law of the British Virgin Islands is
concerned.
(xv) To the best of our knowledge, there are no persons with
registration rights or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the Company
under the 0000 Xxx.
(xvi) Any final and conclusive monetary judgment for a definite
sum which is not subject to a stay of execution obtained against the Company in
the courts of the State of New York in respect of the Purchase Agreements would
be treated by the courts of the British Virgin Islands as a cause of action in
itself so that no retrial of the issues would be necessary.
Exhibit A-3
FORM OF OPINION OF XXXXX DUTILH
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. Each Subsidiary incorporated in The Netherlands (collectively, the "Dutch
Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of The Netherlands.
2. Each of the Dutch Subsidiaries has the corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectuses and to enter into and perform its
obligations under the Purchase Agreements.
3. The shares of the issued and outstanding capital stock of the Dutch
Subsidiaries have been duly authorized and validly issued and are fully
paid and non-assessable; and to the best of our knowledge, are owned by
the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock of the Dutch Subsidiaries
was issued in violation of the preemptive or other similar rights of any
securityholder of the Dutch Subsidiaries.
4. To the best of our knowledge, there are no statutes or regulations of
Netherlands law or rules or regulations relating to the admission of
securities to listing on the Amsterdam Stock Exchange ("ASE") maintained
by the Amsterdam Exchanges N.V. (the "AEX Rules") that are required to be
described in the Prospectuses that are not described as required. The
information set forth in the Prospectuses under "Description of Capital
Stock-- Trading through ASAS," to the extent that it constitutes a
description of the AEX Rules, and of the laws and regulations of The
Netherlands, or its respective agencies, authorities or other
governmental bodies, is correct in all respects.
5. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency of The Netherlands is necessary or required in
connection with the due authorization, execution and delivery of the
Purchase Agreements or for the offering, issuance, sale or delivery of
the Securities in The Netherlands.
6. The execution, delivery and performance of the Purchase Agreements and
the consummation of the transactions contemplated by the Purchase
Agreements and in the Registration Statement (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use of
Proceeds") and compliance by the Company with its obligations under the
Purchase Agreements do not and will not result in the violation of any
applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to us, of any Netherlands government, government
instrumentality or court having jurisdiction over any of the Dutch
Subsidiaries or any of their respective properties, assets or operations.
2
7. The information in the Prospectuses under "Certain Netherlands Tax
Consequences", to the extent that it constitutes matters of Netherlands
law, summaries of Netherlands legal matters, or proceedings or legal
conclusions of Netherlands law, has been reviewed by us and is correct in
all material respects.
Exhibit A-4
FORM OF OPINION OF COMPANY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. Each Subsidiary incorporated in South Africa (collectively, the "South
African Subsidiaries") has been duly incorporated and is validly existing
as a corporation in good standing under the laws of South Africa.
2. Each of the South African Subsidiaries has corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectuses and to enter into and perform its
obligations under the Purchase Agreements.
3. The shares of the issued and outstanding capital stock of the South
African Subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable; and to the best of our knowledge, are
owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of the South
African Subsidiaries was issued in violation of the preemptive or other
similar rights of any securityholder of the South African Subsidiaries.
4. The information in the Prospectuses under "Risk Factors--South African
exchange control regulations significantly restrict our ability to
receive cash distributions from our South African subsidiaries" and
"Regulation--South Africa," to the extent that it constitutes matters of
South African law, summaries of South African legal matters, or legal
proceedings or legal conclusions of South African law, has been reviewed
by us and is correct in all material respects.
5. To the best of our knowledge, there are no statutes or regulations under
South African law or the rules and regulations relating to the admission
of securities to listing on the Johannesburg Stock Exchange (the "JSE
Rules") to be described in the Prospectuses that are not described as
required.
6. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any South African court or
governmental authority or agency is necessary or required in connection
with the due authorization, execution and delivery of the Purchase
Agreements or for the offering, issuance, sale or delivery of the
Securities in South Africa. The South African Subsidiaries possess all
material governmental licenses necessary under South African law to
conduct the businesses now conducted by them in South Africa.
7. The execution, delivery and performance of the Purchase Agreements and
the consummation of the transactions contemplated by the Purchase
Agreements and in the Registration Statement (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the
2
caption "Use of Proceeds") and compliance by the Company with its
obligations under the Purchase Agreements do not and will not, whether
with or without the giving of notice or lapse of time or both, conflict
with or constitute a breach of, or default or Repayment Event (as defined
in Section 1(a)(xi) of the Purchase Agreements) under or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of any of the South African Subsidiaries pursuant to
any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, known to us,
to which any South African Subsidiary is a party or by which any of them
may be bound, or to which any of the property or assets of any South
African Subsidiary is subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws (or equivalent constitutive
documents) of any South African Subsidiary, or any applicable law,
statute, rule, regulation, judgment, order, writ or decree, known to us,
of any South African government, government instrumentality or court
having jurisdiction over any of the South African Subsidiaries or any of
their respective properties, assets or operations.
8. To the best of our knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which any South
African Subsidiary is a party, or to which the property of any South
African Subsidiary is subject, before or brought by any court or
governmental agency or body in South Africa which might reasonably be
expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the properties
or assets thereof or the consummation of the transactions contemplated in
the Purchase Agreements or the performance by the Company of its
obligations thereunder.
9. The issuance and sale of the Securities is not subject to the preemptive
or other similar rights of any securityholder of any South African
Subsidiary.
10. Nothing has come to our attention that would lead us to believe that the
Prospectuses or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable) (except for
financial statements and schedules and other financial data included
therein or omitted therefrom, as to which we need make no statement), at
the time such Prospectuses or any such amendment became effective, in
relation to the South African Subsidiaries, contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading
or that the Prospectuses or any amendment or supplement thereto (except
for financial statements and schedules and other financial data included
therein or omitted therefrom, as to which we need make no statement), at
the time the Prospectuses were issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Time, in relation to
the South African Subsidiaries, included or includes an untrue statement
of a material fact or omitted or omits to state a material fact necessary
in order to make the statement therein, in the light of the circumstances
under which they were made, not misleading.
Exhibit A-5
FORM OF OPINION OF SOCRATES LOIZEDES
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. Each Subsidiary incorporated in Greece or Cyprus (collectively, the
"Mediterranean Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation.
2. Each of the Mediterranean Subsidiaries has corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectuses and to enter into and perform its
obligations under the Purchase Agreements.
3. The shares of the issued and outstanding capital stock of the
Mediterranean Subsidiaries have been duly authorized and validly issued
and are fully paid and non-assessable; and to the best of our knowledge,
are owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; none of the outstanding shares of capital stock of the
Mediterranean Subsidiaries was issued in violation of the preemptive or
other similar rights or any securityholder of the Mediterranean
Subsidiaries.
4. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any Greek or Cypriot court or
governmental authority or agency is necessary or required in connection
with the due authorization, execution and delivery of the Purchase
Agreements or for the offering, issuance, sale or delivery of the
Securities in Greece or Cyprus.
5. The information in the Prospectuses under "Business--Legal
Proceedings"and "Regulation--Greece," to the extent that it constitutes
matters of Greek law, summaries of Greek legal matters, or proceedings or
legal conclusions of Greek law, has been reviewed by us and is correct in
all material respects.
6. The execution, delivery and performance of the Purchase Agreements and
the consummation of the transactions contemplated by the Purchase
Agreements and in the Registration Statement (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use of
Proceeds") and compliance by the Company with its obligations under the
Purchase Agreements do not and will not, whether with or without the
giving of notice or lapse of time or both, result in any violation of the
provisions of the charter or by-laws (or equivalent constitutive
documents) of any Mediterranean Subsidiary, or any applicable law,
statute, rule, regulation, judgment, order, writ or decree, known to us,
of any Greek or Cypriot government, government instrumentality or court
having
2
jurisdiction over any of the Mediterranean Subsidiaries or any of their
respective properties, assets or operations.
7. To the best of our knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which any
Mediterranean Subsidiary is a party, or to which the property of any
Mediterranean Subsidiary is subject, before or brought by any court or
governmental agency or body in Greece or Cyprus which might reasonably be
expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the properties
or assets thereof or the consummation of the transactions contemplated in
the Purchase Agreements or the performance by the Company of its
obligations thereunder.
Exhibit A-6
FORM OF OPINION OF XXXXX & XXXXX (THAILAND)
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. Each Subsidiary incorporated in Thailand (collectively, the "Thai
Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Thailand.
2. Each of the Thai Subsidiaries has the corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectuses and to enter into and perform its
obligations under the Purchase Agreements.
3. The information in the Prospectuses under "Business--Legal Proceedings"
to cover IKSC litigation and "Regulation--Thailand," to the extent that
it constitutes Thai matters of law, summaries of Thai legal matters, or
proceedings or legal conclusions of Thai law, has been reviewed by us and
is correct in all material respects.
4. The shares of the issued and outstanding capital stock of the Thai
Subsidiaries are owned by the Company, directly or through subsidiaries.
5. To the best of our knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which any Thai
Subsidiary is a party, or to which the property of any Thai Subsidiary is
subject, before or brought by any court or governmental agency or body in
Thailand which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of
the transactions contemplated in the Purchase Agreements or the
performance by the Company of its obligations thereunder.
6. The Thai Subsidiaries each possesses all material governmental licenses
necessary to conduct the business now operated by it in Thailand.
1
Exhibit B
, 2000
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
North Tower
World Financial Center
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxx Xxxxxx of America
XXXXXXX XXXXX INTERNATIONAL
MEESPIERSON N.V.
c/o Merrill Xxxxx International
00 Xxxxxxxxx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Re: AGREEMENT NOT TO SELL OR OTHERWISE DISPOSE OF SECURITIES OF
MIH LIMITED
Ladies and Gentlemen:
The undersigned understands that MIH Limited (the "Company") proposes to
file a registration statement on Form F-1 (the "Registration Statement") with
the United States Secu rities and Exchange Commission in connection with the
offering (the "Offering") of ordinary shares ("Shares") of the Company by the
Company. The undersigned further understands that the Company proposes to enter
into one or more purchase agreements (collectively, the "Purchase Agreement")
with you as representative of the underwriters of the Offering (the
"Underwriters").
In recognition of the benefit that the Offering will confer upon the
undersigned as a securityholder of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to induce the Company and the Underwriters to enter into the Purchase
Agreement and to proceed with the Offering, the undersigned hereby agrees, that
from the date hereof until the date which is 180 days after the date of the
Purchase Agreement, the undersigned will not, without the prior written consent
of Xxxxxxx Xxxxx International, directly or indirectly, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant for the sale of, or
otherwise dispose of or transfer (collectively, a "COVERED SALE") any Shares
(other than any Shares registered in the Offering) or any securities convertible
into or exchangeable or exercisable for any Shares, whether now owned or
hereafter acquired by the
2
undersigned or with respect to which the undersigned has or hereafter acquires
the power of disposition (collectively, the "Locked Shares") or request the
filing of any registration statement under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), with respect to any of the foregoing (it being
understood that such a request shall not be deemed to have been made pursuant to
any registration rights agreement until a request is made thereunder and the
mere entering into of any registration rights agreement shall not be deemed such
a request) or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of Shares, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of the Shares or other
securities, in cash or otherwise.
Sincerely,
Name of Securityholder:
---------------------------------
(Print)
Signature:
---------------------------------
Name:
Title:
(If not a natural person)
