EXHIBIT 10.2
UNDERWRITING AGREEMENT
United Austar, Inc.
Austar United Communications Limited
ABN 88 087 695 707
and
United Australia Holdings, Inc.
Xxxxxxxxx
XXX Xxxxxx Xxxxxx Xxxxx Xxxxxx XXX 0000 Xxxxxxxxx
Telephone 00 0 0000 0000 Facsimile 61 2 9322 4000
xxx.xxxxxxxxx.xxx.xx DX361 Sydney
SYDNEY MELBOURNE PERTH CANBERRA BRISBANE HANOI HO CHI MINH CITY
Correspondent Offices JAKARTA KUALA LUMPUR SINGAPORE
Liability limited by the Solicitors' Limitation of Liability Scheme
approved under the Professional Standards Xxx 0000 (NSW)
Reference LP:KL
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Table of contents
Clause Page
1 Definitions and interpretation 1
1.1 Definitions 1
1.2 Interpretation 3
2 Conditions precedent 4
2.1 Conditions precedent 4
2.2 Satisfaction of conditions 5
2.3 Waiver 5
2.4 Termination of agreement 5
3 Appointment of Underwriters 5
3.1 Appointment 5
3.2 Subunderwriting 5
4 Applications and allotment 5
4.1 Offer of Underwritten Shares 5
4.2 Allotment of Underwritten Shares 6
4.3 Notification to Underwriter 6
4.4 Foreign holders 6
5 Shortfall 6
5.1 Calculation of Shortfall 6
5.2 Notice of Shortfall and Certificate 6
5.3 Applications for Shortfall 6
5.4 Allotment of Shares 6
6 Cessation of Underwriter's liability 7
7 Irrevocable authority 7
8 Payments 7
8.1 Expenses 7
8.2 Goods and Services Tax 7
9 Representations and warranties 8
9.1 Representations and warranties by the parties 8
9.2 Representations and warranties by AUN 8
9.3 Survival of representations and warranties 9
10 Obligations 9
10.1 Compliance 9
10.2 Prospectus 9
10.3 Supplementary or replacement documents 10
10.4 Examination and enquiries of the Underwriter 10
10.5 Obligation of Underwriter 10
10.6 Obligation of United Australia 10
11 Events of Termination 11
11.1 Events of Termination 11
11.2 Occurrence of an Event of Termination 13
11.3 Termination in relation to United Australia 13
11.4 Underwriter's knowledge 13
12 Indemnity 13
12.1 Indemnity 13
12.2 Limitation on indemnity 14
12.3 Survival of indemnity 14
Page 1
12.4 Underwriter's obligation to notify 14
12.5 Indemnified Party's obligation to assist 15
12.6 AUN's obligation 15
12.7 Consent to be named does not affect liability 15
13 Confidentiality 16
13.1 Confidentiality 16
13.2 Announcements 16
14 General 16
14.1 Notices 16
14.2 Governing law and jurisdiction 17
14.3 Enforceability, prohibition and severance 17
14.4 Waivers 17
14.5 Variation 18
14.6 Cumulative rights 18
14.7 Counterparts 18
Schedule 1 - Certificate 20
Annexure A - Timetable
Annexure B - Prospectus
Page 2
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This Underwriting Agreement
is made on 23 March 2001 between the following parties:
1. United Austar, Inc.
of Suite 1300,
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000
XXXXXX XXXXXX OF AMERICA
(Underwriter)
2. Austar United Communications Limited
ABN 88 087 695 707
of Xxxxx 00, XXX Xxxxxx
000 Xxxxxx Xxxxxx, Xxxxxx, XXX 0000
XXXXXXXXX
(AUN)
3. United Australia Holdings, Inc.
of Suite 1300,
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000
XXXXXX XXXXXX OF AMERICA
(United Australia)
Recitals
A. AUN proposes to make a rights issue on the terms of the
Prospectus to its existing Shareholders on the basis that each
Shareholder will be entitled to subscribe for 3 Shares for each 7
existing Shares held at an issue price of $0.95 per Share.
B. AUN seeks an underwriting of Underwritten Shares being offered
under the Issue.
C. In consideration for, among other things, AUN granting the
indemnity to the Underwriter and its Related Corporations, the
Underwriter has agreed to underwrite the Issue, and United
Australia has agreed to perform its obligations, on the terms and
conditions in this agreement.
The parties agree
in consideration of, among other things, the mutual promises contained
in this agreement:
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1 Definitions and interpretation
1.1 Definitions
In this agreement:
ALLOTMENT DATE means the allotment date shown in the Timetable, or any
earlier time and date agreed by AUN and the Underwriter in writing;
APPLICATION means a duly completed and executed application for Shares
in the form of the application attached to the Prospectus;
APPLICATION MONEY means the amount which must accompany an Application
in cash or by cheque (other than a cheque which is not honoured within
5 Business Days after presentation or 3 Business Days after the
Closing Date, whichever occurs first) being the issue price of $0.95
multiplied by the number of Shares subscribed for;
Page 1
ASIC means the Australian Securities and Investments Commission;
ASX means Australian Stock Exchange Limited;
BUSINESS DAY means a 'Business day' as defined in the Listing Rules;
CERTIFICATE means a Certificate in the form set out in schedule 1 duly
executed by AUN;
CLOSING DATE means the closing date for Applications shown in the
Timetable, being in respect of offers under the Prospectus the day
specified in the Prospectus or any other time and date agreed by AUN
and the Underwriter in writing;
DUE DILIGENCE COMMITTEE means the committee appointed by the board of
directors of AUN to conduct the Due Diligence Program;
DUE DILIGENCE PLANNING MEMORANDUM means the memorandum outlining the
Due Diligence Program to be implemented and supervised by the Due
Diligence Committee;
DUE DILIGENCE PROGRAM means the commercial, accounting and legal
investigations of the assets, liabilities, financial position, profits
and losses, and affairs of AUN (including future business plans and
prospects), and the verification of all material statements in the
Prospectus, conducted in the period up to allotment of Shares;
EVENT OF TERMINATION means any event specified in clause 11.1;
GOVERNMENTAL AGENCY means any government or any governmental,
semi-governmental, administrative, fiscal or judicial body,
department, commission, authority, tribunal, agency or entity;
ISSUE means the issue of 214,229,574 Shares, each at an issue price of
$0.95 respectively offered under the Prospectus;
LISTING RULE means the official listing rules and requirements as
varied from time to time of the ASX;
LODGMENT DATE means the date specified in the Timetable for the
lodgment of the Prospectus;
MATERIAL ADVERSE EFFECT means a material reduction in the level or
likely level of Applications for the Issue;
MATERIAL SUBSIDIARY means each of the following:
(a) Austar United Broadband Pty Limited ACN 089 048 439;
(b) Austar Entertainment Pty Limited ACN 068 104 530;
(c) CTV Pty Limited ACN 064 416 128;
(d) STV Pty Limited ACN 065 312 450;
(e) XYZ Entertainment Pty Limited ACN 066 812 119; and
(f) Telstra Saturn Limited;
NOTICE CLOSING DATE means the date which is 5 Business Days after the
Closing Date;
PROSPECTUS means a Prospectus to be lodged with ASIC in relation to
the Issue substantially in the form of annexure B, subject to any
amendments approved by the Underwriter (such approval not to be
unreasonably withheld or delayed);
RELATED CORPORATION means a `related body corporate' as that
expression is defined in the Corporations Law and includes a body
corporate which is at any time after the date of this agreement a
`related body corporate' but ceases to be a `related body corporate'
because of an amendment, consolidation or replacement of the
Corporations Law;
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SHAREHOLDERS means:
(a) holders of Shares with registered addresses in:
(1) Australia;
(2) New Zealand;
(3) Saskatchewan Canada; or
(4) Hong Kong; and
(b) holders of Shares with registered addresses in the United States
which are institutional `accredited investors' within the meaning
of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act of 1933, as amended;
SHARES means fully paid ordinary shares in the capital of AUN;
SHORTFALL means the difference between:
(a) the Underwritten Shares; and
(b) the number of Shares offered under the Issue for which valid
Applications and correct Application Money have been received
(other than those AUN offers to the Underwriter under the Issue
in the Underwriter's capacity as a Shareholder),
calculated no later than 3 Business Days after the Closing Date;
SHORTFALL APPLICATION DATE means the date which is 7 Business Days
after the Notice Closing Date;
SUBSIDIARY means a subsidiary as defined in the Corporations Law but
in the case of the Underwriter does not include AUN or its
Subsidiaries;
TIMETABLE means the timetable for the Issue contained in annexure A or
varied by AUN with the approval of the Underwriter (such approval not
to be unreasonably withheld or delayed, except in relation to the
delay of an event by more than 5 Business Days in total, which the
Underwriter may decline to approve in its discretion);
UNDERWRITTEN SHARES means all of the Shares the subject of the Issue
other than:
(a) those AUN offers to the Underwriter under the Issue in the
Underwriter's capacity as a Shareholder; and
(b) those AUN offers to United Australia under the Issue in United
Australia's capacity as a Shareholder.
1.2 Interpretation
In this agreement, unless the context otherwise requires:
(a) headings are for convenience only and do not affect the interpretation
of this agreement;
(b) words importing the singular include the plural and vice versa;
(c) words importing a gender include any gender;
(d) other parts of speech and grammatical forms of a word or phrase
defined in this agreement have a corresponding meaning;
(e) an expression importing a natural person includes any company,
partnership, joint venture, association, corporation or other body
corporate and any Governmental Agency;
(f) a reference to any thing (including, but not limited to, any right)
includes a part of that thing;
(g) a reference to a clause, party, annexure, exhibit or schedule is,
unless otherwise specified, a reference to a clause of, and a party,
annexure, exhibit and schedule to, this agreement and a reference to
this agreement includes any annexure, exhibit and schedule;
Page 3
(h) a reference to a statute, regulation, proclamation, ordinance or
by-law includes all statutes, regulations, proclamations, ordinances
or by-laws amending, consolidating or replacing it, and a reference to
a statute includes all regulations, proclamations, ordinances and
by-laws issued under that statute;
(i) a reference to a document includes all amendments or supplements to,
or replacements or novations, of that document;
(j) a reference to a party to a document includes that party's successors
and permitted assigns;
(k) where the day on or by which any thing is to be done is not a Business
Day, that thing must be done on or by the next Business Day;
(l) no rule of construction applies to the disadvantage of a party because
that party was responsible for the preparation of this agreement or
any part of it;
(m) a reference to an agreement other than this agreement includes any
undertaking, deed, agreement or legally enforceable arrangement or
understanding whether or not in writing;
(n) a reference to an asset includes all property of any nature,
including, but not limited to, a business, and all rights, revenues
and benefits;
(o) a reference to a document includes any agreement in writing, or any
certificate, notice, instrument or other document of any kind;
(p) a reference to any act of AUN includes an act performed in general
meeting or on AUN's behalf by its directors, officers, employees,
share registrars, accountants, solicitors, or agents;
(q) a reference to a body, other than a party to this agreement
(including, without limitation, an institute, association or
authority), whether statutory or not:
(1) which ceases to exist; or
(2) whose powers or functions are transferred to another body,
is a reference to the body which replaces it or which substantially
succeeds to its powers or functions; and
(r) a reference to currency is a reference to the lawful currency of the
Commonwealth of Australia.
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2 Conditions precedent
2.1 Conditions precedent
The obligations of the Underwriter under clause 5 are conditional
upon:
(a) AUN issuing the Prospectus to all Shareholders by the time
specified in the Timetable after lodging it with ASIC by the
Lodgment Date;
(b) the Shares offered under the Issue being granted official
quotation by the ASX before the Closing Date, which approval may
be conditional only upon the issue of those Shares and other
conditions usually imposed by the ASX;
(c) AUN delivering to the Underwriter a Certificate both:
(1) 2 Business Days before the Prospectus is sent to all members
of AUN; and
Page 4
(2) after the Closing Date but before 5.00pm on the Notice
Closing Date; and
(d) the Treasurer of the Commonwealth of Australia:
(1) consenting unconditionally to, or stating before the Closing
Date that he or she has no objection under the Commonwealth
Government's foreign investment policy to, the issue of the
Underwritten Shares to the Underwriter or its Subsidiary; or
(2) ceasing to be entitled to make an order under the Foreign
Acquisitions and Takeovers Xxx 0000 in respect of that
acquisition.
2.2 Satisfaction of conditions
AUN must use its best endeavours to satisfy the conditions precedent
in clause 2.1. The Underwriter must use its best endeavours to satisfy
the condition precedent in clause 2.1(d). AUN must promptly notify the
Underwriter when it has satisfied the conditions precedent in clause
2.1.
2.3 Waiver
The Underwriter alone may waive any or all of the conditions precedent
in clause 2.1.
2.4 Termination of agreement
If any condition in clause 2.1 has not been satisfied or waived by the
time specified in that condition (or, if no time is specified, by the
Closing Date) the Underwriter may by notice to AUN terminate its
obligations under this agreement. In that case AUN has no claim
against the Underwriter arising under this agreement or in respect of
its termination. The Underwriter's rights survive such a termination.
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3 Appointment of Underwriters
3.1 Appointment
AUN appoints the Underwriter to underwrite the subscription of the
Underwritten Shares and the Underwriter accepts the appointment on the
conditions and for the consideration set out in this agreement.
3.2 Subunderwriting
The Underwriter may appoint sub-underwriters for the subscription of
some or all of the Underwritten Shares.
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4 Applications and allotment
4.1 Offer of Underwritten Shares
AUN must offer the Underwritten Shares for subscription in accordance
with the Timetable, the Prospectus, the constitution of AUN and any
applicable statute.
Page 5
4.2 Allotment of Underwritten Shares
(a) AUN must allot the Underwritten Shares for which an Application
and the correct Application Money have been received under the
Prospectus by the Allotment Date.
(b) The allotment must be in accordance with the Prospectus, the
constitution of AUN and any applicable statute.
4.3 Notification to Underwriter
AUN must, when requested, give the Underwriter written notice of:
(a) the number of Applications received by AUN;
(b) the identity of the applicants; and
(c) the number of Shares applied for by each applicant and in total.
4.4 Foreign holders
AUN must follow the procedure under section 615 of the Corporations
Law in relation to the Issue, and ensure that the terms of the Issue
require that procedure to be followed in relation to holders of Shares
other than the Shareholders.
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5 Shortfall
5.1 Calculation of Shortfall
AUN must calculate the Shortfall. All Applications received by AUN
before 5.00pm on the Closing Date and for 2 Business Days after the
Closing Date must be taken into account in calculating the Shortfall
whether or not AUN makes allotments in respect of those Applications.
5.2 Notice of Shortfall and Certificate
If there is a Shortfall then, after the Closing Date but before 5.00pm
on the Notice Closing Date (or such later date as the Underwriter may
allow), AUN must give the Underwriter:
(a) a notice in writing stating the Shortfall and setting out the
calculations made by AUN under clause 5.1; and
(b) a Certificate dated the same date as the notice.
5.3 Applications for Shortfall
On receiving a notice and Certificate under clause 5.2, the
Underwriter must lodge or procure the lodgment with AUN a list of
applicants, Applications and the appropriate Application Money for all
of the Shortfall on or before 5.00pm on the Shortfall Application
Date.
5.4 Allotment of Shares
AUN must allot Shares in respect of any Applications lodged under
clause 5.3 by the Allotment Date.
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6 Cessation of Underwriter's liability
The liability of the Underwriter under this agreement ceases on the
first to occur of the following:
(a) Applications and correct Application Money having been received
for all of the Underwritten Shares;
(b) the Underwriter lodging one or more Applications and the correct
Application Money in accordance with clause 5.3; or
(c) the termination of this agreement under clause 2.4 or clause
11.2.
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7 Irrevocable authority
Subject to clauses 2.4 and 11.2, this agreement is irrevocable on the
part of the Underwriter. If the Underwriter fails to discharge its
obligation under clause 5.3, this agreement constitutes an authority
for AUN to sign or authorise any other person to sign an application
in the name and on behalf of the Underwriter for all or any of the
Shortfall and to allot the Shortfall to the Underwriter. The
Underwriter must pay, on demand from AUN, the Application Money for
the amount of the Shortfall AUN allots to the Underwriter under this
clause 7.
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8 Payments
8.1 Expenses
(a) AUN acknowledges that it must pay the expenses of the Issue in
relation to the costs of preparing and lodging the Prospectus,
the printing, advertising and postage costs associated with the
Prospectus, and the costs of AUN's advisers in connection with
the Prospectus and the Issue.
(b) AUN must reimburse the Underwriter for the cost of its advisers
and its other reasonable expenses in connection with this
agreement, the underwriting, the Prospectus and the Issue.
8.2 Goods and Services Tax
If goods and services tax or any similar tax (GST) is payable as a
consequence of any supply made or deemed to be made or other matter or
thing done under or in connection with this agreement by the
Underwriter, AUN must pay to the Underwriter on demand, as
consideration in addition to the consideration provided for elsewhere
in the agreement, an amount calculated by multiplying the amount of
the consideration provided for elsewhere in the agreement by the
applicable rate of GST. To the extent that GST is not calculated on
the amount of the consideration provided for elsewhere in the
agreement, AUN must pay to the Underwriter an amount that is
sufficient to ensure that the economic benefit to the Underwriter of
this agreement remains the same whether GST applies or not. The
Underwriter will provide to AUN a tax invoice.
Page 7
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9 Representations and warranties
9.1 Representations and warranties by the parties
Each party represents and warrants to the other that:
(a) registration: it is a corporation as that expression is defined
in the Corporations Law having limited liability, registered (or
taken to be registered) and validly existing under the laws of
the place of its incorporation;
(b) authority: it has full power and authority to enter into and
perform its obligations under this agreement in accordance with
its terms;
(c) authorisations: subject to satisfaction of conditions in clause
2.1, it has taken all necessary action to authorise the
execution, delivery and performance of this agreement in
accordance with its terms
(d) binding obligations: subject to satisfaction of conditions in
clause 2.1, this agreement constitutes its legal, valid and
binding obligations and, subject to any necessary stamping and
registration, is enforceable in accordance with its terms;
(e) transaction permitted: subject to satisfaction of conditions in
clause 2.1, the execution, delivery and performance by it of this
agreement does not and will not violate, breach or result in a
contravention of:
(1) any law, regulation, authorisation, ruling, consent,
judgment, order or decree of any Government Agency;
(2) its constitution or any other of its constituent documents;
(3) any encumbrance or document which is binding upon it or any
Subsidiary or any asset of it or any such Subsidiary; or
(4) the Listing Rules,
and do not and will not result in:
(5) the creation or imposition of any encumbrance or restriction
or any nature on any asset of it or any of its Subsidiaries;
or
(6) the acceleration of the date of payment of any obligation
existing under any encumbrance or document which is binding
upon it or any Subsidiary or any asset of it or any such
Subsidiary.
9.2 Representations and warranties by AUN
AUN represents and warrants, other than as previously disclosed in
writing to the Underwriter, that:
(a) no default or breach:
(1) neither it nor any of its Subsidiaries is in breach in any
material respect under any material agreement binding on it
or any of its Subsidiaries;
(2) nothing has occurred which is, or with the giving of notice,
lapse of time, satisfaction of some other condition, or any
combination of the above, constitutes an event (whatever
called) which causes or enables the acceleration of any
payment to be made under, or the enforcement, termination or
rescission of, any material agreement binding on it or any
of its Subsidiaries:
(b) no litigation: no litigation, arbitration, dispute or
administrative proceeding has been commenced, is pending or to
Page 8
its knowledge threatened, by or before any Governmental Agency,
and no judgment or award has been given, made or is pending, by
or before any Governmental Agency, which:
(1) in any way questions its power or authority to enter into or
perform its obligations under this agreement or the
Prospectus; or
(2) in the Underwriter's reasonable opinion would have a
Material Adverse Effect;
(c) Prospectus: on lodgment with the ASIC, the Prospectus will comply
with the Corporations Law and the Listing Rules;
(d) due diligence: the Due Diligence Program has been and will be
conducted in accordance with the Due Diligence Planning
Memorandum prepared for that process;
(e) information disclosed: to the best of AUN's knowledge and belief,
all information that has a Material Adverse Effect has been
disclosed to the Underwriter.
9.3 Survival of representations and warranties
The representations and warranties contained in clauses 9.1 and 9.2
survive completion of this agreement.
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10 Obligations
10.1 Compliance
In respect of the Issue, AUN must:
(a) take all reasonable precautions to ensure that the Timetable
complies with the Listing Rules;
(b) conduct the Issue in accordance with the Timetable, the
Prospectus, the Listing Rules and the Corporations Law;
(c) fully and punctually perform its obligations under the
Prospectus;
(d) comply with and observe all statutes and lawful requirements
other than a requirement of the ASX which is waived in writing by
the ASX or a requirement of the Corporations Law that ASIC
modifies under section 741 of the Corporations Law; and
(e) inform the Underwriter of any Event of Termination, breach or
default under this agreement immediately in writing.
10.2 Prospectus
In respect of the Issue, AUN must ensure that:
(a) the Prospectus is in the form of annexure B, with any amendments
that are approved by the Underwriter, such approval not to be
unreasonably withheld or delayed;
(b) the Prospectus is issued by AUN to Shareholders after it has been
lodged with ASIC;
(c) copies of the Prospectus are made available to the Underwriter as
soon as possible after the Prospectus is lodged with ASIC; and
Page 9
(d) the Prospectus complies with the requirements of the Corporations
Law, the constitution of AUN and the requirements of the ASX.
10.3 Supplementary or replacement documents
Without prejudice to any right of the Underwriter to terminate this
agreement, if, before the Underwritten Shares are allotted or issued
under the Prospectus, AUN becomes aware of:
(a) a new circumstance that has arisen since the Prospectus was
lodged that would have been required to be disclosed under the
Corporations Law had it arisen before the Prospectus was lodged
and that is materially adverse from a potential investor's point
of view; or
(b) a misleading or deceptive statement in the Prospectus; or
(c) an omission from the Prospectus of information required to be
disclosed under the Corporations Law,
then AUN must:
(d) inform the Underwriter of the change, information or deficiency
immediately; and
(e) promptly lodge a supplementary document or a replacement document
in accordance with AUN's obligations under the Corporations Law
in a form approved by the Underwriter, such approval not to be
unreasonably withheld.
10.4 Examination and enquiries of the Underwriter
(a) Without limiting any other provision of this agreement but
subject to clause 10.4(b), the Underwriter is itself, or by its
authorised agents, entitled to make any examination and enquiry
of or concerning the business, assets, liabilities, books and
accounts of AUN or any of its Subsidiaries as the Underwriter, in
its absolute discretion requires during the term of this
agreement.
(b) Under clause 10.4(a), the Underwriter may only request
information and documents relevant to the Prospectus or the Issue
or to the Underwriter's risks, liabilities or duties in respect
of the Issue or under this agreement.
(c) AUN must promptly provide all information and documents requested
by the Underwriter or its authorised representative.
10.5 Obligation of Underwriter
The Underwriter agrees to apply for its full entitlement of Shares as
a Shareholder under the Issue.
10.6 Obligation of United Australia
United Australia agrees to apply for its full entitlement of Shares as
a Shareholder under the Issue.
Page 10
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11 Events of Termination
11.1 Events of Termination
(a) It is an Event of Termination if any of the following events
occurs on or before the Closing Date in the case of the event
described in paragraph (1) and otherwise on or before the
Shortfall Application Date:
(1) fall in index: the All Ordinaries Index of ASX is, at the
close of trading on at least 3 consecutive Business Days, at
a level which is 15% or more below the level at the close of
trading on the ASX on the Business Day immediately preceding
the date of this agreement;
(2) statement of ASX: the ASX makes a statement to any person
that official quotation of the Shares offered under the
Issue will not be granted; or
(3) indictable offence: a director of AUN or any of its
Subsidiaries is charged with an indictable offence relating
to a financial or corporate matter.
(b) It is an Event of Termination if any of the following events
occurs on or before the Shortfall Application Date, and the
Underwriter determines reasonably in good faith that the event
has or would have a Material Adverse Effect:
(1) change in laws: any of the following occurs :
(A) the introduction of legislation into the Parliament of
the Commonwealth of Australia or of any State or
Territory of Australia; or
(B) the public announcement of prospective legislation or
policy by the Commonwealth, or any State or Territory
Government :
(C) the adoption by ASIC, its delegates or the Reserve Bank
of Australia of any regulations or policy;
(2) failure to comply: AUN or any Material Subsidiary fails to
comply with any of the following:
(A) a provision of its constitution;
(B) any statute;
(C) a requirement, order or request, made by or on behalf
of ASIC or any Governmental Agency; or
(D) any material agreement entered into by it;
(3) capital structure: AUN or any of its Subsidiaries alters its
capital structure other than as contemplated by or referred
to in the Prospectus without the prior written consent of
the Underwriter (such consent not to be unreasonably
withheld or delayed);
(4) constitution: the constitution of AUN is amended without the
prior written consent of the Underwriter (such consent not
to be unreasonably withheld or delayed);
Page 11
(5) financial assistance: AUN or any of its Subsidiaries passes,
becomes obliged to pass or takes any steps to pass a
resolution under section 260B of the Corporations Law,
without the prior written consent of the Underwriter (such
consent not to be unreasonably withheld or delayed);
(6) ceasing business: AUN or any Material Subsidiary ceases or
threatens to cease to carry on business, or suspends
payments generally;
(7) winding up: a application or order is made for the winding
up or dissolution of AUN or any Material Subsidiary or a
resolution is passed or any steps are taken to pass a
resolution for the winding up or dissolution of AUN or any
Material Subsidiary otherwise than for the purpose of an
amalgamation or reconstruction which has the Underwriter's
prior written consent (such consent not to be unreasonably
withheld or delayed);
(8) receiver: a receiver, receiver and manager, trustee,
administrator or similar official is appointed, or steps
taken for such appointment, over any of the assets or
undertaking of AUN or any Material Subsidiary;
(9) arrangements: AUN or any Material Subsidiary enters into or
resolves to enter into any arrangement, composition or
compromise with, or assignment for the benefit of, its
creditors or any class of them otherwise than for the
purpose of an amalgamation or reconstruction that has the
Underwriter's prior written consent (such consent not to be
unreasonably withheld or delayed);
(10) insolvency: AUN or any Material Subsidiary becomes unable to
pay its debts when they are due or is or becomes unable to
pay its debts within the meaning of the Corporations Law or
is presumed to be insolvent under the Corporations Law;
(11) Prospectus:
(A) any statement in the Prospectus becomes false or
misleading;
(B) the Prospectus does not comply with section 713 of the
Corporations Law;
(C) any person gives a notice under section 730 of the
Corporations Law in relation to the Prospectus;
(D) ASIC gives notice of intention to hold a hearing in
relation to the Prospectus under section 739(2) of the
Corporations Law or makes an interim order under
section 739(3) of the Corporations Law;
(E) any person who consented to being named in the
Prospectus (other than the Underwriter) withdraws that
consent;
(F) an application is made by the ASIC for an order under
section 1324B of the Corporations Law in relation to
the Prospectus;
(12) supplementary or replacement document: before the Closing
Date the Underwriter forms the reasonable view that a
supplementary document or replacement document must be
lodged with the ASIC under section 719 of the Corporations
Law and AUN does not lodge a supplementary document or a
replacement document in the form and content and within the
time reasonably required by the Underwriter;
(13) information supplied: any material information supplied by
AUN or any of its Subsidiaries or on its behalf to the
Underwriter in respect of the Issue is or becomes false or
misleading in a material respect;
(14) due diligence: there is a material omission from the results
of the Due Diligence Program or the results of the Due
Diligence Program are false or misleading in a material
respect;
Page 12
(15) hostilities: there is an outbreak of hostilities (whether or
not war is declared) involving Australia;
(16) breach: AUN fails to perform or observe any of its material
obligations under this agreement and that failure is not
remedied to the satisfaction of the Underwriter prior to the
Notice Closing Date;
(17) misrepresentation: a material representation or warranty
made or given or deemed to have been made or given by AUN
under this agreement proves to be, or have been, or becomes
untrue or incorrect in any material respect.
(18) adverse change: any other change occurs in the management,
financial position, results of operations or prospects of
AUN or any of its Subsidiaries.
11.2 Occurrence of an Event of Termination
If an Event of Termination occurs, the Underwriter may terminate its
obligations under this agreement by giving written notice to AUN on or
before the Shortfall Application Date which sets out:
(a) the Event of Termination;
(b) in relation to events in clause 11.1(b) -- that the Underwriter
has determined reasonably and in good faith that it is likely to
have a Material Adverse Effect; and
(c) a statement that the agreement is terminated.
The Underwriter's rights survive such a termination.
11.3 Termination in relation to United Australia
If the Underwriter terminates this agreement, United Australia's
obligations under this agreement automatically terminate. United
Australia's rights survive such a termination.
11.4 Underwriter's knowledge
Notwithstanding any other provision of this clause 11, the Underwriter
may not exercise any rights under this clause 11 in reliance on the
occurrence of one of the events specified in clause 11.1 where, at the
date of this agreement, an Underwriter's representative on the Due
Diligence Committee had knowledge that the event had already occurred
or would occur in the future.
--------------------------------------------------------------------------------
12 Indemnity
12.1 Indemnity
AUN must indemnify and hold harmless the Underwriter, its Related
Corporations (other than AUN and its Subsidiaries) and their
respective officers, employees, agents and advisers (Indemnified
Parties) and must keep them indemnified from and against any claim,
action, damage, loss, liability, cost, charge, expense, outgoing or
payment (Losses) including, Losses arising by reason of negligence of
any person, which any Indemnified Party pays, suffers, incurs or is
liable for in connection with the appointment of the Underwriter
pursuant to this agreement including without limitation:
(a) the Issue and any conduct in relation to it;
(b) the Prospectus or any omission from it;
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(c) this agreement;
(d) reliance by the Indemnified Party on information supplied by AUN;
(e) an announcement, advertisement or publicity made or distributed
by or on behalf of AUN in relation to the Issue; or
(f) any investigation, enquiry, or hearing by ASIC or the ASX in
relation to the Issue,
including, but not limited to, in respect of the above, any legal
costs and expenses on a full indemnity basis and any professional
consultant's fees, and all expenses in connection with the
investigation of, preparation for or defence of any pending or
threatened claim, action or proceeding arising therefrom whether or
not such Indemnified Party is a party. The Underwriter is hereby
contracting for the benefit of each of the Indemnified Parties.
12.2 Limitation on indemnity
The indemnity in clause 12.1 does not extend to and is not an
indemnity against;
(a) any penalty or fine which the Indemnified Party is required to
pay for any contravention of the Corporations Law;
(b) any other amount in respect of which the indemnity in clause 12.1
would be illegal, void or unenforceable;
(c) any announcement, advertisement or publicity made or distributed
by the Indemnified Party without the approval of AUN in relation
to the Issue or the Prospectus;
(d) any liability of the Underwriter to subscribe for the Shortfall
under this agreement;
(e) any action, demand, claim, suit or proceeding arising out of
fraud, bad faith, wilful misconduct or default, recklessness or
negligence on the part of an Indemnified Party;
(f) any income or withholding tax payable by the Underwriter on any
amount paid or payable to it pursuant to this agreement.
12.3 Survival of indemnity
The indemnity in clause 12.1 survives completion and termination of
this agreement.
12.4 Underwriter's obligation to notify
(a) If the Underwriter becomes aware of any matter for which an
Indemnified Party may make a claim for indemnity, it must notify
AUN in writing of the substance of that matter or thing, giving
such details as it is practicable to give, as soon as reasonably
practicable and in any event, within 5 Business Days of becoming
aware of the matter.
(b) If the Underwriter fails to notify AUN under clause 12.4(a),
AUN's obligation to indemnify the Indemnified Party under clause
12.1 is unaffected unless an Underwriter's failure to notify
under clause 12.4(a) directly results in:
(1) a complete defence no longer being available to AUN; or
(2) an increase in the amount payable by AUN under the indemnity
in clause 12.1,
Page 14
in which case AUN will only be liable to indemnify the
Indemnified Party for the amount that would have been payable if
such Underwriter had given notice pursuant to clause 12.4(a).
12.5 Indemnified Party's obligation to assist
(a) Subject to clause 12.6, AUN is entitled to defend or to institute
legal or other proceedings in the name of the Indemnified Party
conducted under the management and control of AUN but with
reasonable consultation with the Indemnified Party.
(b) Subject to clause 12.6, the Indemnified Party, must:
(1) do anything that AUN requests to avoid, dispute, resist,
appeal, compromise or defend any action, demand, claim,
suit, proceeding or other thing, or any adjudication in
respect of such item;
(2) not settle any such action, demand, claim, suit or
proceeding without the prior written consent of AUN, which
must not be unreasonably withheld;
(3) assist and co-operate with AUN in the conduct of any legal
or other proceedings, including, without limitation, give
AUN any documents in its possession and sign all documents,
authorities and directions which AUN may reasonably require
for the prosecution or advancement of any legal or other
proceeding; and
(4) do anything reasonably necessary or desirable to ensure that
AUN is subrogated to and enjoys the benefit of the rights of
the Indemnified Party in relation to any cross-claims and to
give AUN all assistance it reasonably requests for this
reason.
12.6 AUN's obligation
(a) The Indemnified Party is under no obligation under clause 12.4 or
12.5 unless at the time AUN requests the Indemnified Party to
take any action, AUN agrees to indemnify the Indemnified Party
against all costs, expenses and charges incurred by or awarded
against the Indemnified Party in taking the action required, as
and when they fall due including legal costs and disbursements on
a full indemnity basis.
(b) AUN must not settle, compromise or consent to the entry of any
judgment in relation to any legal or other proceedings against
any Indemnified Party unless either:
(1) the Underwriter gives prior written consent (which must not
be unreasonably withheld or delayed); or
(2) such settlement, compromise or consent does not include a
statement or admission that such Indemnified Party is or was
at fault or culpable, failed to act or contravened any
applicable law and AUN uses its reasonable endeavours to
obtain an unconditional release of each Indemnified Party
from all liability arising out of such legal or other
proceedings.
12.7 Consent to be named does not affect liability
The Underwriter is not liable to AUN for the contents, completeness or
accuracy of the Prospectus, even if it consents to be named in the
Prospectus or consents to the issue of the Prospectus. A consent or
approval given by the Underwriter does not waive or in any way
prejudice the rights of any Indemnified Party under this clause 12.
Page 15
--------------------------------------------------------------------------------
13 Confidentiality
13.1 Confidentiality
(a) The contents of this agreement are confidential.
(b) Despite clause 13.1(a) each party may make any disclosure to the
extent required by:
(1) any applicable law or Governmental Agency; or
(2) the ASX or any stock exchange on which its shares, or shares
of its parent entity, are listed.
13.2 Announcements
AUN and the Underwriter must not announce or publish anything in
connection with the Prospectus, including but not limited to:
(a) the applications for Shares received; or
(b) the progress or results of the issue of the Shares,
without first advising and consulting with the other party.
--------------------------------------------------------------------------------
14 General
14.1 Notices
(a) Any notice or other communication including, but not limited to,
any request, demand, consent or approval, to or by a party to
this agreement:
(1) must be in legible writing and in English addressed as shown
at the commencement of this agreement/below:
(A) if to the Underwriter:
Address: Suite 1300,
0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxx, XX 00000
XXXXXX XXXXXX OF AMERICA
Attention: Vice President -- Legal
Facsimile: x0 000 000 0000
(B) if to AUN:
Address: Xxxxx 00, XXX Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxx, XXX 0000
XXXXXXXXX
Attention: General Counsel
Facsimile: x00 0 0000 0000
(C) if to United Australia:
Address: Suite 1300,
0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxx, XX 00000
XXXXXX XXXXXX OF AMERICA
Attention: Vice President - Legal
Facsimile: x0 000 000 0000
or as specified to the sender by any party by notice;
Page 16
(2) where the sender is a company, must be signed by an officer
of the sender;
(3) is regarded as being given by the sender and received by the
addressee;
(A) if by delivery in person, when delivered to the
addressee;
(B) if by post, 3 Business Days from and including the date
of postage; or
(C) if by facsimile transmission, when transmitted to the
addressee with a transmission report confirming
successful transmission,
but if the delivery or receipt is on a day which is not a
Business Day or is after 5.00pm (addressee's time) it is
regarded as received at 9.00 am on the following Business
Day; and
(4) can be relied upon by the addressee and the addressee is not
liable to any other person for any consequences of that
reliance if the addressee believes it to be genuine, correct
and authorised by the sender.
(b) In this clause 14.1 a reference to an addressee includes a
reference to an addressee's officers, agents or employees.
14.2 Governing law and jurisdiction
(a) This agreement is governed by the laws of the State of New South
Wales.
(b) Each of the parties irrevocably submits to the non exclusive
jurisdiction of the courts of the State of New South Wales.
14.3 Enforceability, prohibition and severance
(a) Any provision of, or the application of any provision of this
agreement which is prohibited in any jurisdiction is, in that
jurisdiction, ineffective only to the extent of that prohibition.
(b) Any provision of, or the application of any provision of, this
agreement which is void, illegal or unenforceable in any
jurisdiction does not affect the validity, legality or
enforceability of that provision in any other jurisdiction or of
the remaining provisions in that or any other jurisdiction.
14.4 Waivers
(a) Waiver of any right arising from a breach of this agreement or of
any right, power, authority, discretion or remedy arising upon
default under this agreement or upon the occurrence of an Event
of Termination must be in writing and signed by the party
granting the waiver.
(b) This clause 14.4 may not itself be waived except by writing.
(c) A single or partial exercise of a right by a party does not
preclude another exercise or attempted exercise of that right or
the exercise of another right.
(d) Failure by a party to exercise or delay in exercising a right
does not prevent its exercise or operate as a waiver.
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14.5 Variation
Variation of any term of this agreement must be in writing and signed
by the parties.
14.6 Cumulative rights
The rights, powers and remedies arising out of or under this agreement
are cumulative and additional to any rights, powers and remedies
provided in law or equity.
14.7 Counterparts
This agreement may be executed in any number of counterparts. All
counterparts, taken together, constitute a single agreement. A party
may execute this agreement by signing any counterpart.
--------------------------------------------------------------------------------
Executed as an agreement:
Signed by
Austar United Communications Limited
by:
/s/ Xxxxxx X. Xxxxxxxx /s/ X. X. Xxxxxxx
------------------------------------------------ --------------------------------------------------
Secretary/Director Director
Xxxxxx X. Xxxxxxxx X. X. Xxxxxxx
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
Signed for
United Austar, Inc.
by its authorised representative in
the presence of:
/s/ Xxxx Xxxxxxxxx /s/ Xxxxx X. Xxxxxxxx
------------------------------------------------ --------------------------------------------------
Witness Authorised Representative
Xxxx Xxxxxxxxx Xxxxx X. Xxxxxxxx
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
V.P.
--------------------------------------------------
Title (please print)
Page 18
Signed for
United Australia Holdings, Inc.
by its authorised representative in
the presence of:
/s/ Xxxx Xxxxxxxxx /s/ Xxxxx X. Xxxxxxxx
------------------------------------------------ --------------------------------------------------
Witness Authorised Representative
Xxxx Xxxxxxxxx Xxxxx X. Xxxxxxxx
------------------------------------------------ --------------------------------------------------
Name (please print) Name (please print)
V.P.
--------------------------------------------------
Title (please print)
Page 19
--------------------------------------------------------------------------------
Schedule 1 - Certificate
To: United Austar, Inc.
Attention: General Counsel
I hereby certify on behalf of Austar United Communications Limited ABN 88 087
695 707 (AUN) that the following statements are true and not misleading:
(a) AUN is not in default under the Underwriting Agreement and has performed
all its obligations under clause 10 to the extent that that agreement
contemplated such performance to be completed on the date of this
Certificate;
(b) the representations and warranties contained in clauses 9.1 and 9.2 are
repeated as of the date of this Certificate and there has not been any
breach of such representations and warranties from the date of that
Underwriting Agreement until the date of this Certificate; and
(c) none of the Events of Termination has occurred.
For the purposes of this Certificate:
(a) Underwriting Agreement means the underwriting agreement dated on or about 5
May 2000 between AUN and United Austar, Inc.
(b) words and expressions used in this Certificate have the meanings ascribed
to them in the Underwriting Agreement.
DATED
/s/ Xxxx X. Xxxxxx
--------------------
Director
For and on behalf of
Austar United Communications Limited
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-----------------------------------------------------------------------------------------------------------
Annexure A - Timetable
Clause 1.1
Description of action required Party responsible Latest date for performance
------------------------------ ----------------- ---------------------------
Lodgment of Prospectus AUN 23 March 2001
Prospectus sent to shareholders AUN 6 April 2001
Closing Date 2 May 2001
Allotment of New Shares AUN 23 May 2001
Trading of New Shares on
ASX on T+3 basis AUN begins AUN 24 May 2001
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Annexure B - Prospectus
Clause 1.1
Page 22
