EXECUTION COPY
UNITED VIDEO SATELLITE GROUP, INC.
$400,000,000
8-1/8% Senior Subordinated Notes due 2009
Purchase Agreement
New York, New York
February 23, 1999
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
United Video Satellite Group, Inc. (to be renamed TV Guide,
Inc.), a corporation organized under the laws of Delaware ("UVSG"), proposes to
issue and sell to the several parties named in Schedule I hereto (the "Initial
Purchasers"), for whom you (the "Representatives") are acting as
representatives, $400,000,000 aggregate principal amount of its 8-1/8% Senior
Subordinated Notes due 2009 (the "Securities"). The Securities are to be issued
under an indenture (the "Indenture") dated as of March 1, 1999, among UVSG, the
subsidiary guarantors party thereto and The Bank of New York, as trustee (the
"Trustee"). The Securities have the benefit of a Registration Rights Agreement
(the "Registration Rights Agreement"), dated as of February 23, 1999, among
UVSG, the subsidiary guarantors party thereto and the Initial Purchasers,
pursuant to which UVSG and such subsidiary guarantors have agreed to register
the Securities under the Act subject to the terms and conditions therein
specified. The use of the neuter in this Agreement shall include the feminine
and masculine wherever appropriate. Certain terms used herein are defined in
Section 17 hereof.
The sale of the Securities to the Initial Purchasers will be
made without registration of the Securities under the Act in reliance upon
exemptions from the registration requirements of the Act.
In connection with the sale of the Securities, (i) UVSG
intends to acquire (the "TV Guide Acquisition"), pursuant to a Share Exchange
Agreement, effective as of June 10, 1998, all the outstanding capital stock of
News America Publications Inc., a Delaware corporation ("Publications"), and all
the outstanding capital stock of TVSM, Inc., a Delaware corporation ("TVSM"), on
the terms described in the definitive proxy statement, dated January 20, 1999
(the "Proxy Statement"), of UVSG, (ii) UVSG intends to acquire (the "Netlink
Acquisition"), pursuant to an Amended and Restated Stock Purchase Agreement,
effective as of May 18, 1998, all the outstanding shares of three subsidiaries
of Liberty Media Corporation (the "Liberty Subsidiaries"), a Delaware
corporation, on the terms described in the Proxy Statement and (iii) UVSG
intends to change its name to TV Guide, Inc. As used herein, the "Company" means
TV Guide, Inc., taken as
1.1-1
a whole, on a pro forma basis after giving effect to the TV Guide Acquisition,
the Netlink Acquisition and the aforementioned name change.
In connection with the sale of the Securities, UVSG has
prepared a preliminary offering memorandum, dated February 11, 1999 (as amended
or supplemented at the Execution Time, the "Preliminary Memorandum"), and a
final offering memorandum, dated February 23, 1999 (as amended or supplemented
at the Execution Time, the "Final Memorandum"). Each of the Preliminary
Memorandum and the Final Memorandum sets forth certain information concerning
the Company and the Securities. UVSG hereby confirms that it has authorized the
use of the Preliminary Memorandum and the Final Memorandum, and any amendment or
supplement thereto, in connection with the offer and sale of the Securities by
the Initial Purchasers.
For purposes of this Agreement, all references to Subsidiary
Guarantors shall mean those entities set forth on Schedule II hereto for periods
prior to the Closing Date and shall mean those entities set forth on Schedule II
hereto plus any other entity that becomes a Subsidiary Guarantor pursuant to
Section 5(o) for the period on and after the Closing Date, provided, however,
that any such Subsidiary Guarantor shall cease to be a Subsidiary Guarantor
under this Agreement and the Registration Rights Agreement at such time as such
entity ceases to be a Subsidiary Guarantor under the Indenture.
1. Representations and Warranties. UVSG and each of the
Subsidiary Guarantors jointly and severally represent and warrant to each
Initial Purchaser as set forth below in this Section 1.
(a) The Preliminary Memorandum, at the date thereof, did not
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. At the
Execution Time, on the Closing Date (as defined in Section 3 hereof)
and on any settlement date, the Final Memorandum did not, and will not
(and any amendment or supplement thereto, at the date thereof, at the
Closing Date and on any settlement date, will not), contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that UVSG and the Subsidiary Guarantors make no representation
or warranty as to the information contained in or omitted from the
Preliminary Memorandum or the Final Memorandum, or any amendment or
supplement thereto, in reliance upon and in conformity with information
furnished in writing to UVSG by or on behalf of the Initial Purchasers
through the Representatives specifically for inclusion therein.
(b) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf has, directly or indirectly, made
offers or sales of any security, or solicited offers to buy any
security, under circumstances that would require the registration of
the Securities under the Act.
(c) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation
D) in connection with any offer or sale of the Securities in the United
States.
(d) The Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Act.
1.1-2
(e) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf has engaged in any directed
selling efforts with respect to the Securities, and each of them has
complied with the offering restrictions requirement of Regulation S.
Terms used in this paragraph have the meanings given to them by
Regulation S.
(f) The Company is not, and after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Memorandum will not be, an
"investment company" within the meaning of the Investment Company Act,
without taking account of any exemption arising out of the number of
holders of the Company's securities.
(g) The Company is subject to and in full compliance with the
reporting requirements of Section 13 or Section 15(d) of the Exchange
Act.
(h) The Company has not paid or agreed to pay to any person
any compensation for soliciting another to purchase any securities of
the Company (except as contemplated by this Agreement).
(i) The Company has not taken, directly or indirectly, any
action designed to cause or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(j) The information provided by the Company pursuant to
Section 5(h) hereof will not, at the date thereof, contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(k) Each of UVSG, Publications, TVSM, the Liberty Subsidiaries
and their respective subsidiaries has (i) been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized with full
corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Final Memorandum and (ii) is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification, except, in the case of this clause
(ii), to the extent the failure to so qualify or be in good standing
would not, individually or in the aggregate, be reasonably expected to
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole ("Material Adverse Effect").
(l) All the outstanding shares of capital stock of each
subsidiary of UVSG, Publications and TVSM have been duly and validly
authorized and issued and are fully paid and nonassessable, and, except
as otherwise set forth in the Final Memorandum, all outstanding shares
of capital stock of the subsidiaries are owned by UVSG, Publications or
TVSM, as applicable, either directly or through wholly owned
subsidiaries free and clear of any perfected security interest or any
other security interests, claims, liens or encumbrances.
(m) This Agreement has been duly authorized, executed and
delivered by UVSG and each of the Subsidiary Guarantors; the Indenture
has been duly authorized and, assuming due authorization, execution and
delivery thereof by the Trustee, when executed and delivered by UVSG
and each of the Subsidiary Guarantors, will constitute a legal, valid,
binding instrument enforceable against the Company and each of the
Subsidiary Guarantors in accordance with its terms (subject, as to the
enforcement of remedies, to applicable
1.1-3
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect and
to general principles of equity); the Securities have been duly
authorized, and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Initial Purchasers, will have been duly executed and delivered by UVSG
and each of the Subsidiary Guarantors and will constitute the legal,
valid and binding obligations of the Company and each of the Subsidiary
Guarantors entitled to the benefits of the Indenture (subject, as to
the enforcement of remedies, to applicable bankruptcy, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity); each of
the IP Agreements has been duly authorized, executed and delivered; and
the Registration Rights Agreement has been duly authorized and, when
executed and delivered by UVSG and each of the Subsidiary Guarantors,
will constitute the legal, valid, binding and enforceable instrument of
the Company and each of the Subsidiary Guarantors (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity).
(n) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Indenture or the
Registration Rights Agreement, except such as will be obtained under
the Act and the Trust Indenture Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Initial Purchasers in the
manner contemplated herein and in the Final Memorandum and the
Registration Rights Agreement.
(o) Neither the execution and delivery of the Indenture, this
Agreement or the Registration Rights Agreement, the issue and sale of
the Securities, nor the consummation of any other of the transactions
herein or therein contemplated, nor the fulfillment of the terms hereof
or thereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to (i) the
charter or by-laws of UVSG, Publications, TVSM, the Liberty
Subsidiaries or any of their respective subsidiaries; (ii) the terms of
any material indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which UVSG, Publications, TVSM, the Liberty
Subsidiaries or any of their respective subsidiaries is a party or
bound or to which any of their property is subject; or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable to
UVSG, Publications, TVSM, the Liberty Subsidiaries or any of their
respective subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over UVSG, Publications, TVSM, the Liberty Subsidiaries or
any of their respective subsidiaries or any of their properties.
(p) The consolidated historical financial statements and
schedules of each of UVSG, Publications, the Netlink Wholesale Division
(as defined in the Final Memorandum) and their respective consolidated
subsidiaries, as applicable, included in the Final Memorandum present
fairly in all material respects the financial condition, results of
operations and cash flows of each of UVSG, Publications and the Netlink
Wholesale Division, respectively, as of the dates and for the periods
indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein);
the selected financial data set forth under the caption "Selected
Historical Financial Information--United Video Satellite Group, Inc.",
"Selected Historical Financial Data--News America Publications Inc."
and "Selected Historical Financial Data-- Netlink Wholesale Division"
in the Final Memorandum fairly present, on the basis stated in the
Final Memorandum, the information included therein; the pro forma
financial statements included in the Final Memorandum include
assumptions that provide a reasonable basis for presenting the
significant effects directly attributable to the transactions and
events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma adjustments
reflect the proper application of those adjustments to the historical
financial statement amounts in the pro forma financial statements
included in the Final Memorandum; the pro forma financial statements
included in the Final Memorandum comply as to form in all material
respects with the applicable accounting requirements of Regulation S-X
under the Act; and the pro forma adjustments have been properly applied
to the historical amounts in the compilation of those statements.
(q) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving any
of UVSG, Publications, TVSM, any of the Liberty Subsidiaries or any of
their respective subsidiaries, as applicable, or any of their property
is pending or, to the best knowledge of UVSG, threatened that (i) would
reasonably be expected to have a material adverse effect on the
performance of this Agreement, the Indenture or the Registration Rights
Agreement, or the consummation of any of the transactions contemplated
hereby or thereby; or (ii) would reasonably be expected to have a
Material Adverse Effect, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated
in the Final Memorandum (exclusive of any amendment or supplement
thereto).
(r) Except as provided in Section 1(t) below, each of UVSG,
Publications, TVSM, the Liberty Subsidiaries and each of their
respective subsidiaries, as applicable, owns or leases all such
properties as are necessary to the conduct of its operations as
presently conducted.
(s) None of UVSG, Publications, TVSM, the Liberty Subsidiaries
nor any of their respective subsidiaries is in violation or default of
(i) any provision of its charter or bylaws; (ii) the terms of any
material indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which it is a party or bound or to which its
property is subject; or (iii) in any material respect, any statute,
law, rule, regulation, judgment, order or decree applicable to UVSG,
Publications, TVSM, the Liberty Subsidiaries or such subsidiary of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over UVSG,
Publications, TVSM, the Liberty Subsidiaries or such subsidiary or any
of its properties, as applicable.
(t) Subject to any disclosure to the contrary in the Final
Memorandum and excepting patents owned by or licensed to Gemstar
Development Corporation and/or its affiliates, UVSG has no actual
knowledge that it and its subsidiaries do not own, possess, license or
have other rights to use all patents, patent applications, trade and
service marks, trade and service xxxx registrations, trade names and
copyrights necessary for the conduct of UVSG's business as now
conducted or as proposed in the Final Memorandum to be conducted. In
addition, (i) to UVSG's actual knowledge, there are no rights of third
parties to any patents, patent applications, trade and service marks,
trade and service xxxx registrations, trade names and copyrights owned
by UVSG (collectively, the "Intellectual Property"); (ii) there is no
pending or, to UVSG's actual knowledge, threatened action, suit,
proceeding or claim by others challenging UVSG's rights in or to any
such Intellectual property, and UVSG has no actual knowledge of any
facts which lead it to believe that any such claim has been or is being
made; (iii) to UVSG's actual knowledge, there is no pending or
threatened action, suit, proceeding or claim by others challenging the
validity or scope of any such Intellectual
1.1-4
Property (except as described in the Final Memorandum), and UVSG has no
actual knowledge of any facts which lead it to believe that any such
claim has been or is being made; and (iv) there is no pending or, to
UVSG's actual knowledge, threatened action, suit, proceeding or claim
by others that UVSG infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of
others (except as described in the Final Memorandum), and UVSG has no
actual knowledge of any other facts which lead it to believe that any
such claim has been or is being made.
(u) The statements contained in the Final Memorandum under the
captions "Risk Factors -- Any infringement by us on patent rights of
others could result in litigation", "-- Litigation with Gemstar may
adversely affect the future of TV Guide Interactive and its guides",
"-- We are segregating our patent rights to an unrestricted subsidiary
that will not be subject to the covenants in the indenture",
"Business--Patents and Trademarks", "-- Regulation" and "--Legal
Proceedings", insofar as such statements summarize legal matters,
agreements, documents, or proceedings discussed therein, are accurate
and fair summaries of such legal matters, agreements, documents or
proceedings.
(v) The Company and its subsidiaries have implemented a
comprehensive, detailed program to analyze and address the risk that
the computer hardware and software used by them may be unable to
recognize and properly execute date-sensitive functions involving
certain dates prior to and any dates after December 31, 1999 (the "Year
2000 Problem"), and has determined that such risk will be remedied on a
timely basis without material expense and will not have a material
adverse effect upon the financial condition and results of operations
of the Company and its subsidiaries, taken as a whole; and UVSG
believes, after due inquiry, that each supplier, vendor, customer or
financial service organization used or serviced by the Company and its
subsidiaries has remedied or will remedy on a timely basis the Year
2000 Problem, except to the extent that a failure to remedy by any such
supplier, vendor, customer or financial service organization would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole. The Company is in compliance with the Commission's
staff legal bulletin No. 5 dated January 12, 1998, as amended to date,
related to Year 2000 compliance.
(w) Other than Prevue Networks, Inc., UVTV, Inc.,
Superstar/Netlink Group L.L.C., Publications, Xxxxxxx Magazines
Distribution, Inc. ("MMDI") and TVSM (the "Subsidiaries"), there is no
entity or other person (i) of which a majority of the voting equity
securities or other interests is owned, directly or indirectly, by the
Company and (ii) which, directly or indirectly, held more than 5% of
the total assets of the Company or would have contributed more than 5%
of the revenues or EBITDA of the Company, in each case on a pro forma
basis as of December 31, 1998.
(x) Each of the TV Guide Acquisition and the Netlink
Acquisition has been consummated in accordance with the terms of the
Proxy Statement and as described in the Final Memorandum, including the
transfer of the TVGOS (as defined in the Final Memorandum) intellectual
property to the IP Subsidiary (as defined in the Final Memorandum).
Any certificate signed by any officer of UVSG and delivered to
the Representatives or counsel for the Initial Purchasers in connection with the
offering of the Securities shall be deemed a representation and warranty by
UVSG, as to matters covered thereby, to each Initial Purchaser.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, UVSG
agrees to sell to each Initial Purchaser, and each Initial Purchaser agrees,
severally and not jointly, to purchase from UVSG, at a purchase price
1.1-5
of 98.5% of the principal amount thereof, plus accrued interest, if any, from
March 1, 1999 to the Closing Date, the principal amount of Securities set forth
opposite such Initial Purchaser's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 A.M., New York City time, on March 1, 1999, or
at such time on such later date (not later than March 8, 1999) as the
Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and UVSG or as provided in Section 9
hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Representatives for the respective accounts of the several Initial
Purchasers against payment by the several Initial Purchasers through the
Representatives of the purchase price thereof to or upon the order of UVSG by
wire transfer payable in same-day funds to the account specified by UVSG.
Delivery of the Securities shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise instruct.
4. Offering by Initial Purchasers. Each Initial Purchaser,
severally and not jointly, represents and warrants to and agrees with UVSG that:
(a) It has not offered or sold, and will not offer or sell,
any Securities except (i) to those it reasonably believes to be
qualified institutional buyers (as defined in Rule 144A under the Act)
and that, in connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of such Securities is
aware that such sale is being made in reliance on Rule 144A or (ii) in
accordance with the restrictions set forth in Exhibit A hereto.
(b) Neither it nor any person acting on its behalf has made or
will make offers or sales of the Securities in the United States by
means of any form of general solicitation or general advertising
(within the meaning of Regulation D) in the United States.
5. Agreements. UVSG and each of the Subsidiary Guarantors
jointly and severally agree with each Initial Purchaser that:
(a) The Company will furnish to each Initial Purchaser and to
counsel for the Initial Purchasers, without charge, during the period
referred to in paragraph (c) below, as many copies of the Final
Memorandum and any amendments and supplements thereto as it may
reasonably request.
(b) The Company will not amend or supplement the Final
Memorandum without the prior written consent of the Representatives.
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers (as determined by the
Representatives), any event occurs as a result of which the Final
Memorandum, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
should be necessary to amend or supplement the Final Memorandum to
comply with applicable law, the Company promptly (i) will notify the
Representatives of any such event; (ii) subject to the requirements of
paragraph (b) of this Section 5, will prepare an amendment or
supplement that will correct such statement or omission or effect such
compliance; and (iii) will supply any supplemented or amended Final
Memorandum to the several Initial Purchasers and counsel for the
Initial Purchasers without charge in such quantities as you may
reasonably request.
1.1-6
(d) The Company will arrange, if necessary, for the
qualification of the Securities for sale by the Initial Purchasers
under the laws of such jurisdictions as the Initial Purchasers may
designate and will maintain such qualifications in effect so long as
required for the sale of the Securities; provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject. The Company will promptly
advise the Representatives of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(e) The Company will not, and will not permit any of its
Affiliates to, resell any Securities that have been acquired by any of
them.
(f) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf will, directly or indirectly, make
offers or sales of any security, or solicit offers to buy any security,
under circumstances that would require the registration of the
Securities under the Act.
(g) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf will engage in any form of general
solicitation or general advertising (within the meaning of Regulation
D) in connection with any offer or sale of the Securities in the United
States.
(h) So long as any of the Securities are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act, the
Company will, during any period in which it is not subject to and in
compliance with Section 13 or 15(d) of the Exchange Act or it is not
exempt from such reporting requirements pursuant to and in compliance
with Rule 12g3-2(b) under the Exchange Act, provide to each holder of
such restricted securities and to each prospective purchaser (as
designated by such holder) of such restricted securities, upon the
request of such holder or prospective purchaser, any information
required to be provided by Rule 144A(d)(4) under the Act. This covenant
is intended to be for the benefit of the holders, and the prospective
purchasers designated by such holders, from time to time of such
restricted securities.
(i) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf will engage in any directed
selling efforts with respect to the Securities, and each of them will
comply with the offering restrictions requirement of Regulation S.
Terms used in this paragraph have the meanings given to them by
Regulation S.
(j) The Company will cooperate with the Representatives and
use its best efforts to permit the Securities to be eligible for
clearance and settlement through The Depository Trust Company.
(k) The Company will not offer, sell, contract to sell, grant
any other option to purchase or otherwise dispose of, directly or
indirectly, or announce the offering of, or file a registration
statement for, (i) any debt securities issued or guaranteed by the
Company or any of its direct or indirect subsidiaries or (ii) any
shares of capital sock of any of the Company's direct or indirect
subsidiaries which are preferred to as payments of dividends or as to
distribution upon liquidation over any other class of capital stock, or
enter into an agreement to do any of the foregoing (other than (x) the
Securities and the New Securities (as defined in the Registration
Rights Agreement), (y) pursuant to any credit facility permitted under
the Indenture and (z) purchase money debt permitted under the
Indenture)
1.1-7
for a period of 90 days from the date the Securities are issued without
the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc.
(l) The Company will not take, directly or indirectly, any
action designed to cause or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(m) The Company will not, for so long as the Securities are
outstanding, be or become, or be or become owned by, an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act of 1940, as amended, and will not be or become,
or be or become owned by, a closed-end investment company required to
be registered but not registered thereunder.
(n) UVSG and the Subsidiary Guarantors agree to pay the costs
and expenses relating to the following matters: (i) the preparation of
the Indenture and the Registration Rights Agreement, the issuance of
the Securities and the fees of the Trustee (excluding the fees of
counsel to the Initial Purchasers with respect thereto); (ii) the
preparation, printing or reproduction of the Preliminary Memorandum and
Final Memorandum and each amendment or supplement to either of them;
(iii) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such
copies of the Preliminary Memorandum and Final Memorandum, and all
amendments or supplements to either of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale
of the Securities; (iv) the preparation, printing, authentication,
issuance and delivery of certificates for the Securities, including any
stamp or transfer taxes in connection with the original issuance and
sale of the Securities; (v) the printing (or reproduction) and delivery
of this Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (vi) any registration or qualification of
the Securities for offer and sale under the securities or blue sky laws
of the several states (including filing fees and the reasonable fees
and expenses of counsel for the Initial Purchasers relating to such
registration and qualification); (vii) admitting the Securities for
trading in The Portal Market; (viii) the transportation and other
expenses incurred by or on behalf of Company representatives in
connection with presentations to prospective purchasers of the
Securities; (ix) the fees and expenses of the Company's accountants and
the fees and expenses of counsel (including local and special counsel)
for the Company; and (x) all other costs and expenses incident to the
performance by the Company of its obligations hereunder.
(o) The Company shall cause any entity that is a Subsidiary
Guarantor under the Indenture and not set forth on Schedule II hereto
to become a party to this Agreement and the Registration Rights
Agreement on or prior to the Closing Date.
(p) The Company will take any and all actions reasonably
requested by the Initial Purchasers to ensure that the Securities are
designated as Portal-eligible securities in accordance with the rules
and regulations of the NASD.
6. Conditions to the Obligations of the Initial Purchasers.
The obligations of the Initial Purchasers to purchase the Securities shall be
subject to the accuracy of the representations and warranties on the part of
UVSG and each of the Subsidiary Guarantors contained herein at the Execution
Time and the Closing Date, to the accuracy of the statements of UVSG and each of
the
1.1-8
Subsidiary Guarantors made in any certificates pursuant to the provisions
hereof, to the performance by UVSG and each of the Subsidiary Guarantors of its
obligations hereunder and to the following additional conditions:
(a) The Company shall have requested and caused Holme Xxxxxxx
& Xxxx LLP, counsel for UVSG, to furnish to the Representatives its
opinion, dated the Closing Date and addressed to the Representatives,
to the effect that:
(i) each of Prevue Networks, Inc., UVTV, Inc. and
Superstar/Netlink Group L.L.C. (the "UVSG Subsidiaries") (A)
has been duly formed or incorporated, as applicable, and is
validly existing and in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as
described in the Final Memorandum and (B) is duly qualified to
do business and is in good standing under the laws of each
jurisdiction which requires such qualification, except, in the
case of this clause (B), to the extent the failure to so
qualify or be in good standing could not, individually or in
the aggregate, be reasonably expected to have a Material
Adverse Effect;
(ii) all the outstanding shares of capital stock of
UVSG and each UVSG Subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable,
and, except as otherwise set forth in the Final Memorandum, to
the knowledge of such counsel, after due inquiry, all
outstanding shares of capital stock of the UVSG Subsidiaries
are owned by UVSG either directly or through wholly owned
subsidiaries free and clear of any security interests, claims,
liens or encumbrances;
(iii) the Indenture has been duly authorized,
executed and delivered, and constitutes a legal, valid and
binding instrument enforceable against the Company and each
Subsidiary Guarantor in accordance with its terms (subject, as
to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in
equity or at law); the Securities have been duly and validly
authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid
for by the Initial Purchasers under this Agreement, will
constitute legal, valid and binding obligations of the Company
and each Subsidiary Guarantor entitled to the benefits of the
Indenture (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect and to general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law); the
Registration Rights Agreement has been duly authorized,
executed and delivered and constitutes the legal, valid,
binding and enforceable instrument of the Company and each
Subsidiary Guarantor (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing,
regardless of whether considered in a proceeding in equity or
at law); each of the IP Agreements has been duly authorized,
executed and delivered; and the statements set forth under the
heading "Description of Notes" and "Exchange Offer;
1.1-9
Registration Rights" in the Final Memorandum, insofar as such
statements purport to summarize certain provisions of the
Securities, the Indenture and the Registration Rights
Agreement, provide a fair summary of such provisions;
(iv) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving UVSG or any of its subsidiaries or its or
their property that is not adequately disclosed in the Final
Memorandum, except in each case for such proceedings that, if
the subject of an unfavorable decision, ruling or finding
would not singly or in the aggregate, result in a material
adverse change in the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and
its subsidiaries, taken as a whole; and the statements in the
Final Memorandum under the headings "Certain United States
Federal Income Tax Considerations", "Certain Relationships and
Related Transactions", "Description of Bank Credit Facilities"
and "Business -- Legal Proceedings" (except for the first two
paragraphs thereof) fairly summarize the matters therein
described;
(v) such counsel has no reason to believe that at the
Execution Time and on the Closing Date the Final Memorandum
contained or contains any untrue statement of a material fact
or omitted or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading (in each case,
other than the financial statements and other financial
information contained therein, as to which such counsel need
express no opinion);
(vi) this Agreement has been duly authorized,
executed and delivered by UVSG and each of the Subsidiary
Guarantors;
(vii) no consent, approval, authorization, filing
with or order of any court or governmental agency or body is
required in connection with the transactions contemplated
herein or in the Indenture and the Registration Rights
Agreement, except such as will be obtained under the Act and
the Trust Indenture Act and such as may be required under the
blue sky or securities laws of any jurisdiction in connection
with the purchase and sale of the Securities by the Initial
Purchasers in the manner contemplated in this Agreement and
the Final Memorandum and the Registration Rights Agreement and
such other approvals (specified in such opinion) as have been
obtained;
(viii) neither the execution and delivery of the
Indenture, this Agreement or the Registration Rights
Agreement, the IP Agreements, the issue and sale of the
Securities, nor the consummation of any other of the
transactions herein or therein contemplated, nor the
fulfillment of the terms hereof or thereof will conflict with,
result in a breach or violation of, or imposition of any lien,
charge or encumbrance upon any property or asset of UVSG or
its subsidiaries pursuant to, (A) the charter or by-laws of
UVSG or its subsidiaries; (B) to the knowledge of such
counsel, the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument
to which UVSG or any of its subsidiaries is a party or bound
or to which its respective property is subject; or (C) to the
knowledge of such counsel, any statute, law, rule, regulation,
judgment, order or decree applicable to UVSG or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority
having jurisdiction over UVSG, any of its subsidiaries or any
of their respective properties;
1.1-10
(ix) assuming the accuracy of the representations and
warranties and compliance with the agreements contained
herein, no registration of the Securities under the Act, and
no qualification of an indenture under the Trust Indenture
Act, are required for the offer and sale by the Initial
Purchasers of the Securities in the manner contemplated by
this Agreement; and
(x) UVSG is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Memorandum, will
not be an "investment company" as defined in the Investment
Company Act without taking account of any exemption arising
out of the number of holders of UVSG's securities.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
General Corporation Law of the State of Delaware, the State of New York, the
State of Colorado or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other counsel of
good standing whom they believe to be reliable and who are satisfactory to
counsel for the Initial Purchasers; and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Company and the
Subsidiary Guarantors and public officials. References to the Final Memorandum
in this Section 6(a) include any amendment or supplement thereto at the Closing
Date.
(b) The Company shall have requested and caused Squadron,
Ellenoff, Plesent & Xxxxxxxxx, LLP, counsel for Publications, to
furnish to the Representatives its opinion, dated the Closing Date and
addressed to the Representatives, to the effect that:
(i) each of Publications, TVSM and MMDI has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and
authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the
Final Memorandum;
(ii) all the outstanding shares of capital stock of
Publications, TVSM and MMDI have been duly and validly
authorized and issued and are fully paid and nonassessable,
and, except as otherwise set forth in the Final Memorandum, to
the knowledge of such counsel, all outstanding shares of
capital stock of MMDI are owned by Publications free and clear
of any security interests, claims, liens or encumbrances;
(iii) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving Publications, TVSM or MMDI or any of
their subsidiaries or its or their property that is not
adequately disclosed in the Final Memorandum, except in each
case for such proceedings that, if the subject of an
unfavorable decision, ruling or finding would not singly or in
the aggregate, be reasonably expected to result in a material
adverse change in the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and
its subsidiaries, taken as a whole; and
(iv) neither the execution and delivery of the
Indenture, this Agreement or the Registration Rights
Agreement, the issue and sale of the Securities, nor the
consummation of any other of the transactions herein or
therein contemplated, nor the fulfillment of the terms hereof
or thereof will conflict with, result in a breach or
1.1-11
violation of, or imposition of any lien, charge or encumbrance
upon any property or asset of Publications, TVSM or MMDI
pursuant to, (A) the charter or by-laws of Publications, TVSM
or MMDI, as applicable, (B) the terms of the contracts and
agreements listed on a schedule to such opinion and reasonably
acceptable to the Representatives; or (C) to the knowledge of
such counsel, any statute, law, rule, regulation, judgment,
order or decree applicable to Publications, TVSM or MMDI or
any of their subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over Publications, TVSM or MMDI,
any of their subsidiaries or any of their respective
properties;
(c) The Representatives shall have received from Cravath,
Swaine & Xxxxx, counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
with respect to the issuance and sale of the Securities, the Indenture,
the Registration Rights Agreement, the Final Memorandum (as amended or
supplemented at the Closing Date) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have requested and caused Xxxx, Raywid &
Xxxxxxxxx, L.L.P., regulatory counsel for the Company, to furnish to
the Representatives its opinion, dated the Closing Date and addressed
to the Representatives, to the effect that:
(i) the statements regarding regulatory matters in
the Final Memorandum under the headings "Business--Regulation"
and "Risk Factors--Certain of our businesses are subject to
extensive government regulation" fairly summarize the matters
therein described;
(ii) to the knowledge of such counsel, based on
information provided to such counsel regarding existing
operations, UVSG and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
FCC necessary to conduct their respective businesses, and none
of UVSG or any such subsidiary has received any notice of
proceedings relating to the revocation or modification of any
such license, certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse
effect on the condition (financial or otherwise), prospects,
earnings, business or properties of UVSG, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Memorandum
(exclusive of any amendment or supplement thereto);
(iii) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before
the FCC against UVSG or any of its respective subsidiaries or
properties that is not adequately disclosed in the Final
Memorandum, except in each case for such proceedings that, if
the subject of an unfavorable decision, ruling or finding
would not singly or in the aggregate, result in a material
adverse change in the condition (financial or otherwise),
prospects, earnings, business or properties of UVSG;
(iv) no consent, approval, authorization, filing with
or order of the FCC is required under the Communications Act
of 1934, as amended (the "Communications Act"), in connection
with the transactions contemplated herein or in the Indenture
and the Registration Rights Agreement, except such as have
been obtained; and
1.1-12
(v) the execution and delivery of the Indenture, this
Agreement and the Registration Rights Agreement, the issue and
sale of the Securities, the consummation of any other of the
transactions herein or therein contemplated and the
fulfillment of the terms hereof or thereof will not conflict
with, result in a breach or violation of the Communications
Act or any FCC regulation in effect or cause the suspension,
revocation, impairment, forfeiture, nonrenewal or termination
of any FCC license or other authorization of the FCC. To the
extent that any agreement or other document purports to grant
a security interest in licenses issued by the FCC, the FCC has
taken the position that security interests in FCC licenses are
not valid. To the extent that any party seeks to exercise
control of an FCC license in the event of a default or for any
other reason, it may be necessary to obtain prior FCC consent.
(e) The Company shall have requested and caused Fish & Neave,
intellectual property counsel for UVSG, to furnish to the
Representatives its opinion, dated the Closing Date and addressed to
the Representatives, to the effect that:
In its capacity as UVSG's patent counsel and in the context of
its representation, such counsel has reviewed certain statements under
the headings "Business--Patents and Trademarks", "--Legal Proceedings",
"Risk Factors--Any infringement by us on patent rights of others could
result in litigation" and "--Litigation with Gemstar may adversely
affect the future of TV Guide Interactive and its guides" in the Final
Memorandum (collectively, the "Statements").
Although such counsel has not independently verified the
completeness of the matters contained in the Statements, insofar as the
Statements constitute facts pertaining to such counsel's representation
and involve matters of United States law, the statements, to such
counsel's actual knowledge, fairly summarize the matters therein set
forth. As to questions of material fact relevant thereto, such counsel
has relied, to the extent such counsel deems appropriate, upon
representations made to such counsel by officers of UVSG.
Specifically, such counsel believes as to certain aspects of the
Statements that:
(i) Subject to any disclosure to the contrary in the
Final Memorandum, to such counsel's actual knowledge there are
no legal or governmental proceedings, except patent office
proceedings, pending or threatened against UVSG relating to
the patents or patent applications of UVSG referenced in the
Statements, except with respect to patents and patent
applications arising from the joint venture known as TV Guide
On Screen for which such counsel is not the prosecuting
attorneys.
(ii) Subject to any disclosure to the contrary in the
Final Memorandum, to such counsel's actual knowledge there are
no facts that would preclude UVSG from having clear title to
or a valid license under the patents and patent applications
of UVSG referenced in the Statements, except with respect to
patents and patent applications arising from the joint venture
known as TV Guide On Screen for which such counsel is not the
prosecuting attorneys.
(iii) Subject to any disclosure to the contrary in
the Final Memorandum, and excepting patents owned by or
licensed to Gemstar Development Corporation and its
affiliates, such counsel has no actual knowledge of any charge
asserted by a third party of infringement of any third party
patent by UVSG and its subsidiaries.
Further, such counsel has no actual knowledge that causes such counsel
to believe, as of the date thereof, that the Statements contain any untrue
statement of a material fact or omit to state a
1.1-13
material fact necessary to make such Statements not misleading in the context in
which they are made.
(f) The Representatives shall have received from Xxxxxx &
Xxxxxxxx, L.L.P., intellectual property counsel for the
Representatives, its report and opinion, dated the Closing Date and
addressed to the Representatives, with respect to certain intellectual
property and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass on such matters.
(g) The Company and each of the Subsidiaries shall have
furnished to the Representatives a certificate of the Company and each
such Subsidiary, signed by the Chairman of the Board, a Vice Chairman,
the President or any Executive Vice President and the principal
financial or accounting officer of the Company or such Subsidiary, as
applicable, dated the Closing Date, to the effect that the signers of
such certificate, in their representative capacities, have carefully
examined the Final Memorandum, any amendment or supplement to the Final
Memorandum and this Agreement and that:
(i) the representations and warranties of the Company
or such Subsidiary Guarantor, as applicable, in this Agreement
are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing
Date, and the Company or such Subsidiary Guarantor, as
applicable, has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date; and
(ii) with respect to the officers of the Company
only, since the date of the most recent financial statements
included in the Final Memorandum (exclusive of any amendment
or supplement thereto), there has been no material adverse
change in the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated by the Final Memorandum (exclusive of
any amendment or supplement thereto).
(h) At the Execution Time and at the Closing Date, the Company
shall have requested and caused Xxxxxx Xxxxxxxx LLP to furnish to the
Representatives letters, dated respectively as of the Execution Time
and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable rules and regulations adopted by the Commission thereunder,
that they have performed a review of the unaudited interim financial
information of Publications for the six-month period ended December 31,
1998 and as at December 31, 1998, as well as for the twelve-month
period ended December 31, 1998, and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules of Publications included in
the Final Memorandum and reported on by them comply as to form
in all material respects with the applicable accounting
requirements of the Exchange Act and the related rules and
regulations adopted by the Commission thereunder;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by Publications
and its subsidiaries; their limited review in accordance with
the standards established under Statement on Auditing
Standards No. 71, of the unaudited interim financial
information for the six-month period
1.1-14
ended December 31, 1998 and as at December 31, 1998, as well
as for the twelve-month period ended December 31, 1998,
carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders, directors and committees of Publications and its
subsidiaries; and inquiries of certain officials of
Publications who have responsibility for financial and
accounting matters of Publications and its subsidiaries as to
transactions and events subsequent to June 30, 1998, nothing
came to their attention which caused them to believe that with
respect to the period subsequent to December 31, 1998, there
were any changes, at a specified date not more than six days
prior to the date of the letter, in the total current assets,
total assets, total current liabilities or total liabilities
(excluding amounts due affiliates) of Publications and its
subsidiaries as compared with the amounts shown on the
December 31, 1998 consolidated balance sheet included in the
Final Memorandum, or for the period from January 1, 1999 to
such specified date there were any decreases, as compared with
the corresponding period in the preceding year, in revenues or
EBITDA, or increases in net loss of Publications and its
subsidiaries, except in all instances for changes or decreases
set forth in such letter, in which case the letter shall be
accompanied by an explanation by Publications as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of
Publications and its subsidiaries) set forth in the Final
Memorandum, including the information set forth under the
captions "Selected Historical Financial Data--News America
Publications Inc." and "Management's Discussion and Analysis
of Financial Condition and Results of Operations" in the Final
Memorandum, agrees with the accounting records of Publications
and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Memorandum in this Section 6(h)
include any amendment or supplement thereto at the date of the
applicable letter.
(i) At the Execution Time and at the Closing Date, the Company
shall have requested and caused KPMG LLP to furnish to the
Representatives letters, dated respectively as of the Execution Time
and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable rules and regulations adopted by the Commission thereunder,
and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules for UVSG following the
fiscal year ended December 31, 1996 and for the Netlink
Wholesale Division included in the Final Memorandum and
reported on by them comply as to form in all material respects
with the applicable accounting requirements of the Exchange
Act and the related rules and regulations adopted by the
Commission thereunder; and
(ii) on the basis of a reading of the minutes of the
meetings of the stockholders, directors and committees of UVSG
and its subsidiaries and the Liberty Subsidiaries; and
inquiries of certain officials of UVSG who have responsibility
for financial and accounting matters of UVSG and its
subsidiaries and the Netlink
1.1-15
Wholesale Division as to transactions and events subsequent to
December 31, 1998, nothing came to their attention which
caused them to believe that:
(1) with respect to the period subsequent to December 31,
1998, there were any changes, at a specified date not more than five
days prior to the date of the letter, in the total current assets,
total assets, total current liabilities or capital lease obligations
and long-term debt of UVSG and its subsidiaries as compared with the
amounts shown on the December 31, 1998 consolidated balance sheet
included in the Final Memorandum, or for the period from January 1,
1999 to such specified date there were any decreases, as compared with
the corresponding period in the preceding year, in revenues, EBITDA or
net income of UVSG and its subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by UVSG as to the significance
thereof unless said explanation is not deemed necessary by the
Representatives;
(2) with respect to the period subsequent to December 31,
1998, there were any changes, at a specified date not more than five
days prior to the date of the letter, in the total current assets or
total current liabilities of the Netlink Wholesale Division as compared
with the amounts shown on the December 31, 1998 balance sheet included
in the Final Memorandum, or for the period from January 1, 1999 to such
specified date there were any decreases, as compared with the
corresponding period in the preceding year, in revenues, EBITDA or net
earnings of the Netlink Wholesale Division, except in all instances for
changes or decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Netlink Wholesale
Division as to the significance thereof unless said explanation is not
deemed necessary by the Representatives; and
(3) the information included in the Final Memorandum in
response to Regulation S-K, Item 301 ("Selected Historical Financial
Data--UVSG" and "--Netlink Wholesale Division") and Item 503(d) ("Ratio
of Earnings to Fixed Charges") is not in conformity with the applicable
disclosure requirements of Regulation S-X.
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of
UVSG and its subsidiaries and the Netlink Wholesale Division)
set forth in the Final Memorandum, including the information
set forth under the captions "Capitalization", "Summary
Historical and Pro Forma Financial Data ", "Selected
Historical Financial Data--Netlink Wholesale Division",
"Selected Historical Financial Data--United Video Satellite
Group, Inc." and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" in the Final
Memorandum, agrees with the accounting records of UVSG and its
subsidiaries and the Netlink Wholesale Division, as
applicable, excluding any questions of legal interpretation.
(iv) On the basis of a reading of the unaudited pro
forma financial statements (the "pro forma financial
statements") included in the Final Memorandum; carrying out
certain specified procedures; inquiries of certain officials
of UVSG, Publications and TVSM who have responsibility for
financial and accounting matters; and proving the arithmetic
accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial statements,
nothing came to their attention which caused them to believe
that the pro forma financial statements do not comply in form
in all material respects with the applicable accounting
requirements
1.1-16
of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
References to the Final Memorandum in this Section 6(i)
include any amendment or supplement thereto at the date of the
applicable letter.
(j) At the Execution Time and at the Closing Date, the Company
shall have requested and caused Ernst & Young LLP to furnish to the
Representatives a letter, dated as of the Execution Time, in form and
substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable rules and regulations adopted by the
Commission thereunder, and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules for UVSG as of and for the
fiscal year ended December 31, 1996 comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act and the related rules and regulations
adopted by the Commission thereunder; and
(ii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of
UVSG and its subsidiaries) set forth in the Final Memorandum,
including the information set forth under the captions
"Selected Historical Financial Data--United Video Satellite
Group, Inc." and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" in the Final
Memorandum, agrees with the accounting records of UVSG and its
subsidiaries, excluding any questions of legal interpretation.
References to the Final Memorandum in this Section 6(j)
include any amendment or supplement thereto at the date of the
applicable letter.
(k) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Final Memorandum (exclusive of
any amendment or supplement thereto), there shall not have been (i) any
change or decrease specified in the letter or letters referred to in
paragraphs (h) and (i) of this Section 6; or (ii) any change, or any
development involving a prospective change, in or affecting the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final
Memorandum (exclusive of any amendment or supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above,
is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to market the
Securities as contemplated by the Final Memorandum (exclusive of any
amendment or supplement thereto).
(l) Each of the TV Guide Acquisition and the Netlink
Acquisition shall have been consummated or shall be consummated
simultaneously with the transactions contemplated herein in accordance
with the terms of the Proxy Statement and as described in the Final
Memorandum.
(m) The Company shall have obtained new senior secured credit
facilities in an aggregate principal amount of at least $300,000,000,
which facilities shall consist of a $300,000,000 aggregate principal
amount six-year revolving credit facility (having a
1.1-17
minimum availability after the closing of the TV Guide Acquisition of
not less than $114.7 million) and, at the Company's option, an up to
$300,000,000 aggregate principal amount 364-day revolving credit
facility that automatically converts at maturity into a five-year term
loan.
(n) The Company shall have segregated certain of its patent
rights into the IP Subsidiary (as defined in the Final Memorandum) and
licensed such rights to the relevant subsidiaries of the Company, in
each case in a manner reasonably acceptable to the Representatives.
(o) The Company shall have received gross proceeds from the
sale of the Equalization Shares (as defined in the Final Memorandum) of
not less than $128 million.
(p) The Securities shall have been designated as
Portal-eligible securities in accordance with the rules and regulations
of the NASD, and the Securities shall be eligible for clearance and
settlement through The Depository Trust Company.
(q) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(r) Publications and TVSM shall have been released as
guarantors with respect to all indebtedness of News Corp. and its
affiliates (other than the Company).
(s) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Initial Purchasers, this Agreement and all obligations of the Initial Purchasers
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancelation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will
be delivered at the office of Xxxxx & Xxxxx, L.L.P., 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000, on the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Initial Purchasers set forth in Section 6 hereof is not satisfied through
no fault of the Initial Purchasers, because of any termination pursuant to
Section 10 hereof or because of any refusal, inability or failure on the part of
UVSG or any Subsidiary Guarantor to perform any agreement herein or comply with
any provision hereof other than by reason of a default by any of the Initial
Purchasers, UVSG and the Subsidiary Guarantors will reimburse the Initial
Purchasers severally through Xxxxxxx Xxxxx Barney Inc. on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
1.1-18
8. Indemnification and Contribution. (a) UVSG and each of the
Subsidiary Guarantors jointly and severally agree to indemnify and hold harmless
each Initial Purchaser, the directors, officers, employees and agents of each
Initial Purchaser and each person who controls any Initial Purchaser within the
meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Memorandum, the Final Memorandum (or in any
supplement or amendment thereto) or any information provided by the Company to
any holder or prospective purchaser of Securities pursuant to Section 5(h), or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that UVSG and the Subsidiary Guarantors will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made in the Preliminary Memorandum or the Final Memorandum, or
in any amendment thereof or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Initial Purchasers through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which
UVSG and the Subsidiary Guarantors may otherwise have.
(b) Each Initial Purchaser severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
UVSG to each Initial Purchaser, but only with reference to written information
relating to such Initial Purchaser furnished to the Company by or on behalf of
such Initial Purchaser through the Representatives specifically for inclusion in
the Preliminary Memorandum or the Final Memorandum (or in any amendment or
supplement thereto). This indemnity agreement will be in addition to any
liability which any Initial Purchaser may otherwise have. UVSG acknowledges that
the statements set forth in the last paragraph of the cover page regarding the
delivery of the Securities and, under the heading "Plan of Distribution", (i)
the list of Initial Purchasers and their respective participation in the sale of
the Securities and (ii) the paragraph related to stabilization, syndicate
covering transactions and penalty bids in the Preliminary Memorandum and the
Final Memorandum, constitute the only information furnished in writing by or on
behalf of the Initial Purchasers for inclusion in the Preliminary Memorandum or
the Final Memorandum (or in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the
1.1-19
indemnified party or parties except as set forth below); provided, however, that
such counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. An indemnifying party
shall not be liable under this Section 8 to any indemnified party regarding any
settlement or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent is consented to by such
indemnifying party, which consent shall not be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, UVSG, each Subsidiary Guarantor and the
Initial Purchasers agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Company and one or more of the Initial Purchasers may be subject in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Subsidiary Guarantors on the one hand and by the Initial
Purchasers on the other from the offering of the Securities; provided, however,
that in no case shall any Initial Purchaser (except as may be provided in any
agreement among the Initial Purchasers relating to the offering of the
Securities) be responsible for any amount in excess of the purchase discount or
commission applicable to the Securities purchased by such Initial Purchaser
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, UVSG, each Subsidiary Guarantor and the Initial
Purchasers shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company and the
Subsidiary Guarantors on the one hand and of the Initial Purchasers on the other
in connection with the statements or omissions which resulted in such Losses, as
well as any other relevant equitable considerations. Benefits received by the
Company and the Subsidiary Guarantors shall be deemed to be equal to the total
net proceeds from the offering (before deducting expenses) received by the
Company, and benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions in each case set forth on
the cover of the Final Memorandum. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
the Initial Purchasers on the other, the intent of the parties and their
relative knowledge, information and opportunity to correct or prevent such
untrue statement or omission. UVSG, each Subsidiary Guarantor and the Initial
Purchasers agree that it would not be just and equitable if contribution
1.1-20
were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Initial Purchaser within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an Initial
Purchaser shall have the same rights to contribution as such Initial Purchaser,
and each person who controls UVSG within the meaning of either the Act or the
Exchange Act and each officer and director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. Default by an Initial Purchaser. If any one or more Initial
Purchasers shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Initial Purchasers shall be obligated severally to take
up and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Initial Purchasers)
the Securities which the defaulting Initial Purchaser or Initial Purchasers
agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule I hereto, the remaining Initial
Purchasers shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting Initial
Purchasers do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Initial Purchaser or the Company. In the
event of a default by any Initial Purchaser as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Final Memorandum or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting
Initial Purchaser of its liability, if any, to the Company or any nondefaulting
Initial Purchaser for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to UVSG prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in UVSG's Class A Common Stock shall have been
suspended by the Commission or the Nasdaq National Market or trading in
securities generally on the New York Stock Exchange or the Nasdaq National
Market shall have been suspended or limited or minimum prices shall have been
established on such Exchange or the Nasdaq National Market; (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities; or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impracticable or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Memorandum (exclusive of any amendment or supplement
thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
UVSG or its officers and of the Initial Purchasers set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Initial Purchasers or UVSG or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancelation of this Agreement.
1.1-21
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Xxxxxxx Xxxxx Xxxxxx Inc. General Counsel
(fax no.: (000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx
Barney Inc. at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: General
Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
(000) 000-0000 and confirmed to it at United Video Satellite Group, Inc., 0000
Xxxxx Xxxxx Xxxxxx, Xxxxx, XX 00000, Attention: General Counsel.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and, except as expressly set forth in Section 5(h) hereof, no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 501(b)
of Regulation D.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in The City of New York.
"Commission" shall mean the Securities and Exchange
Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean, the date and time that this
Agreement is executed and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"IP Agreements" shall mean those assignment and licensing
arrangements entered into among UVSG, subsidiaries of UVSG and United Video
Properties, Inc. relating to assignment and licensing of intellectual property
of the Company as described in the Final Memorandum.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
1.1-22
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission promulgated
thereunder.
1.1-23
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
between the Company and the several Initial Purchasers.
Very truly yours,
United Video Satellite Group, Inc.,
by /s/ Xxxxx X. Xxxxxx III
---------------------------
Name: Xxxxx X. Xxxxxx III
Title: Executive Vice President;
Chairman and Chief Executive
Officer of TV Guide Entertainment
Group and United Video Group
Each of the Subsidiary
Guarantors listed on Schedule II hereto,
by /s/ Xxxxx X. Xxxxxx III
----------------------------------
Name: Xxxxx X. Xxxxxx III
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Xxxxxxx Xxxxx Barney Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
by: Xxxxxxx Xxxxx Barney Inc.
by /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
For themselves and the other several Initial Purchasers named in Schedule I to
the foregoing Agreement.
1.1-24
SCHEDULE I
Principal
Amount of
Securities
Initial Purchasers to be Purchased
Xxxxxxx Xxxxx Xxxxxx Inc................................... $166,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated...........166,000,000
Credit Lyonnais Securities (USA) Inc..........................28,000,000
BNY Capital Markets, Inc......................................20,000,000
TD Securities (USA) Inc.......................................20,000,000
-------------
Total .......................................$400,000,000
1.1-25
SCHEDULE II
United Video Network Sales, Inc.
UV Corp
UVTV, Inc.
UVTV-A, Inc.
UVTV-X, Inc.
DirectCom Networks, Inc.
TV Guide Media Sales, Inc.
EuroMedia Group, Inc.
TV Guide Interactive Group Inc.
Prevue Data Services, Inc.
TV Guide Online, Inc.
Prevue Interactive, Inc.
PNI Holdings, Inc.
Prevue Networks Inc.
Prevue International, Inc.
Sneak Holdings, Inc.
1.1-26
EXHIBIT A
Selling Restrictions for Offers and
Sales outside the United States
(1)(a) The Securities have not been and will not be registered
under the Act and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons except in accordance with Regulation
S under the Act or pursuant to an exemption from the registration requirements
of the Act. Each Initial Purchaser represents and agrees that, except as
otherwise permitted by Section 4(a)(i) or (ii) of the Agreement to which this is
an exhibit, it has offered and sold the Securities, and will offer and sell the
Securities, (i) as part of their distribution at any time; and (ii) otherwise
until 40 days after the later of the commencement of the offering and the
Closing Date, only in accordance with Rule 903 of Regulation S under the Act.
Accordingly, each Initial Purchaser represents and agrees that neither it, nor
any of its Affiliates nor any person acting on its or their behalf has engaged
or will engage in any directed selling efforts with respect to the Securities,
and that it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Each Initial Purchaser agrees that, at
or prior to the confirmation of sale of Securities (other than a sale of
Securities pursuant to Section 4(a)(i) or (ii) of the Agreement to which this is
an exhibit), it shall have sent to each distributor, dealer or person receiving
a selling concession, fee or other remuneration that purchases Securities from
it during the distribution compliance period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Act") and may not be
offered or sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the commencement of the offering and March 1,
1999, except in either case in accordance with Regulation S or
Rule 144A under the Act. Terms used above have the meanings
given to them by Regulation S."
(b) Each Initial Purchaser also represents and agrees that it
has not entered and will not enter into any contractual arrangement
with any distributor with respect to the distribution of the
Securities, except with its Affiliates or with the prior written
consent of the Company.
(c) Terms used in this section have the meanings given to them
by Regulation S.
(2) Each Initial Purchaser represents and agrees that (i) it
has not offered or sold, and will not offer or sell, any Securities in the
United Kingdom, by means of any document, other than to persons whose ordinary
business it is to buy, hold, manage or dispose of investments, whether as
principal or as agent, for the purpose of their businesses or in circumstances
which do not constitute an offer to the public within the meaning of the
Companies Xxx 0000 of Great Britain; (ii) it has complied and will comply with
all applicable provisions of the Financial Services Xxx 0000 of the United
Kingdom with respect to anything done by it in relation to the Securities in,
from or otherwise involving the United Kingdom; and (iii) it has only issued or
passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issue of the Securities to a person who is
of a kind described in Article 9(3) of the Financial Services Xxx 0000
(Investment Advertisements) (Exemptions) Order 1996 or is a person to whom the
document may otherwise lawfully be issued or passed on.
A-1
