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EXHIBIT 1.1
MIH LIMITED
(a British Virgin Islands corporation)
4,150,000
Class A Ordinary Shares
U.S. PURCHASE AGREEMENT
Dated: April [ ], 1999
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TABLE OF CONTENTS
Page
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U.S. PURCHASE AGREEMENT........................................................1
SECTION 1. Representations and Warranties......................................4
(a) Representations and Warranties by the Company..............4
(i) Compliance with Registration Requirements.........4
(ii) Independent Accountants...........................5
(iii) Financial Statements..............................5
(iv) No Material Adverse Change in Business............6
(v) Good Standing of the Company......................6
(vi) Good Standing of Subsidiaries.....................6
(vii) Capitalization....................................7
(viii) Authorization of Agreement........................7
(ix) Authorization and Description of Securities.......8
(x) Absence of Defaults and Conflicts.................8
(xi) Absence of Labor Dispute..........................9
(xii) Absence of Proceedings............................9
(xiii) Accuracy of Exhibits.............................10
(xiv) Possession of Intellectual Property..............10
(xv) Absence of Further Requirements..................10
(xvi) Possession of Licenses and Permits...............11
(xvii) Title to Property................................11
(xviii) Compliance with Research Guidelines..............12
(xix) Investment Company Act...........................12
(xx) Environmental Laws...............................12
(xxi) Registration Rights..............................13
(xxii) Statistical and Market-Related Data..............13
(xxiii) Johannesburg Stock Exchange......................13
(b) Officer's Certificates....................................13
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing....................13
(a) Initial Securities........................................13
(b) Option Securities.........................................14
(c) Payment...................................................14
(d) Denominations; Registration...............................15
(e) Appointment of Qualified Independent Underwriter..........15
i
SECTION 3. Covenants of the Company...........................................16
(a) Compliance with Securities
Regulations and Commission Requests.......................16
(b) Filing of Amendments......................................16
(c) Delivery of Registration Statements.......................17
(d) Delivery of Prospectuses..................................17
(e) Continued Compliance with Securities Laws.................17
(f) Blue Sky Qualifications...................................18
(f) Rule 158..................................................19
(g) Use of Proceeds...........................................19
(i) Listing...................................................19
(j) Restriction on Sale of Securities.........................19
(k) Reporting Requirements....................................20
(l) Compliance with Rule 463..................................20
SECTION 4. Payment of Expenses................................................20
(a) Expenses..................................................20
(b) Termination of Agreement..................................21
SECTION 5. Conditions of U.S. Underwriters' Obligations.......................21
(a) Effectiveness of Registration Statement...................21
(b) Opinion of Counsel for Company............................21
(c) Opinion of Counsel for U.S. Underwriters..................22
(d) Officers' Certificate.....................................22
(e) Accountant's Comfort Letter...............................23
(f) Bring-down Comfort Letter.................................23
(g) Approval of Listing.......................................23
(h) No Objection..............................................23
(i) Lock-up Agreements........................................23
(j) Purchase of Initial International Securities..............23
(k) Conditions to Purchase of U.S. Option Securities..........23
(l) Additional Documents......................................24
(m) Termination of Agreement..................................25
SECTION 6. Indemnification....................................................25
(a) Indemnification of U.S. Underwriters......................25
(b) Indemnification of Company, Directors and Officers........27
(c) Actions Against Parties; Notification.....................27
(d) Settlement Without Consent if Failure To Reimburse........28
SECTION 7. Contribution.......................................................28
ii
SECTION 8. Representations, Warranties and Agreements To Survive Delivery....30
SECTION 9. Termination of Agreement..........................................31
(a) Termination; General.....................................31
(b) Liabilities..............................................31
SECTION 10. Default by One or More of the U.S. Underwriters...................31
SECTION 11. Notices...........................................................32
SECTION 12. Parties...........................................................33
SECTION 13. GOVERNING LAW AND TIME............................................33
SECTION 14. Agent for Service; Submission to
Jurisdiction; Waiver of Immunities................................33
SECTION 15. Judgment Currency.................................................34
SECTION 16. Effect of Headings................................................35
SECTION 17. Counterparts......................................................35
SCHEDULES
Schedule A - List of Underwriters...............................Sch A-1
Schedule B - Pricing Information................................Sch B-1
Schedule C - List of Persons Subject to Lock-Up.................Sch C-1
EXHIBITS
Exhibit A-1 - Form of Opinion of Cravath, Swaine & Xxxxx..........A-1-1
Exhibit A-2 - Form of Opinion of Xxxxxx Xxxxxxxx & Riegels........A-2-1
Exhibit A-3 - Form of Opinion of Mallinicks.......................A-3-1
Exhibit A-4 - Form of Opinion of Zepos & Zepos....................A-4-1
Exhibit A-5 - Form of Opinion of Xxxxx Dutilh.....................A-5-1
Exhibit A-6 - Form of Opinion of Loyens & Volkmaars...............A-6-1
Exhibit A-7 - Form of Opinion of White & Case (Thailand)Limited...A-7-1
Exhibit B - Form of Lock-up Letter................................B-1
iii
MIH LIMITED
(a British Virgin Islands corporation)
4,150,000 Class A Ordinary Shares
(No Par Value)
U.S. PURCHASE AGREEMENT
April [ ], 1999
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
as U.S. Representatives of the several U.S. Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
MIH Limited, an International Business Company organized under the
laws of the British Virgin Islands (the "Company"), confirms its agreement with
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx") and each of the other U.S. Underwriters named in Schedule A
hereto (collectively, the "U.S. Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
Xxxxxxx Xxxxx and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation are acting
as representatives (in such capacity, the "U.S. Representatives"), with respect
to the issue and sale by the Company referred to in Schedule A and the purchase
by the U.S. Underwriters, acting severally and not jointly, of the respective
numbers of Class A Ordinary Shares, no par value, of the Company ("Class A
Ordinary Shares") set forth in said Schedule A, and with respect to the grant by
the Company to the U.S. Underwriters, acting severally and not jointly, of the
option described in Section 2(b) hereof to purchase all or any part of 622,500
additional Class A Ordinary Shares to cover over-allotments, if any. The
4,150,000 Class A Ordinary Shares referred to in Schedule A (the "Initial U.S.
Securities") to be purchased by the U.S. Underwriters and all or any part of the
622,500 Class A Ordinary
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Shares subject to the option described in Section 2(b) hereof (the "U.S. Option
Securities") are hereinafter called, collectively, the "U.S. Securities."
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "International Purchase Agreement")
providing for the offering by the Company of an aggregate of 4,150,000 Class A
Ordinary Shares (the "Initial International Securities") through arrangements
with certain underwriters outside the United States and Canada (the
"International Managers") for which Xxxxxxx Xxxxx International, DLJ Securities
International and MeesPierson N.V. are acting as the international
representatives (the "International Representatives") and the grant by the
Company to the International Managers, acting severally and not jointly, of an
option to purchase all or any part of the International Managers' pro rata
portion of up to 622,500 additional Class A Ordinary Shares solely to cover
over-allotments, if any (the "International Option Securities" and, together
with the U.S. Option Securities, the "Option Securities"). The Initial
International Securities and the International Option Securities are hereinafter
called the "International Securities." It is understood that the Company is not
obligated to sell, and the U.S. Underwriters are not obligated to purchase, any
Initial U.S. Securities unless all of the Initial International Securities are
contemporaneously purchased by the International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters," the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"Initial Securities," and the U.S. Securities and the International Securities
are hereinafter collectively called the "Securities."
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of Xxxxxxx Xxxxx International (in such capacity, the "Global
Coordinator").
The Company understands that the U.S. Underwriters propose to make a
public offering of the U.S. Securities as soon as the U.S. Representatives deem
advisable after this Agreement has been executed and delivered.
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The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form F-1 (No. 333-74227) covering
the registration of the Securities under the Securities Act of 1933, as amended
(the "1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International Prospectus"). The Form of International Prospectus is identical to
the Form of U.S. Prospectus, except for the front cover and back cover pages and
the information under the caption "Underwriting" and the inclusion in the Form
of International Prospectus of sections under the captions "Additional
Information" and "Certain Netherlands Tax Consequences." The information
included in any such prospectus or in any such Term Sheet, as the case may be,
that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information." Each Form of U.S. Prospectus and Form of
International Prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
thereto and schedules thereto, at the time it became effective and including the
Rule 430A Information and the Rule 434 Information, as applicable, is herein
called the "Registration Statement." Any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The final Form
of U.S. Prospectus and the final Form of International Prospectus in the forms
first furnished to the Underwriters for use in connection with the offering of
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the Securities are herein called the "U.S. Prospectus" and the "International
Prospectus," respectively, and collectively, the "Prospectuses." If Rule 434 is
relied on, the terms "U.S. Prospectus" and "International Prospectus" shall
refer to the preliminary U.S. Prospectus dated [ ], 1999 and the preliminary
International Prospectus dated [ ], 1999, respectively, each together with the
applicable Term Sheet, and all references in this Agreement to the date of such
Prospectuses shall mean the date of the applicable Term Sheet. For purposes of
this Agreement, all references to the Registration Statement, any preliminary
prospectus, the U.S. Prospectus, the International Prospectus or any Term Sheet
or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to and agrees with each U.S. Underwriter as of the date
hereof, as of the Closing Time referred to in Section 2(c) hereof, and as of
each Date of Delivery (if any) referred to in Section 2(b) hereof, and agrees
with each U.S. Underwriter, as follows:
(i) Compliance with Registration Requirements. The Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, and any
post-effective amendments thereto became effective and at the Closing Time
(and, if any U.S. Option Securities are purchased, at the Date of
Delivery), the Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. Neither of the Prospectuses nor any
amendments or supplements thereto, at the time the Prospectuses or any
amendments or supplements
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thereto were issued and at the Closing Time (and, if any U.S. Option
Securities are purchased, at the Date of Delivery), included or will
include an untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434 and the Prospectuses shall not be "materially
different," as such term is used in Rule 434, from the prospectuses
included in the Registration Statement at the time it became effective.
The representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the U.S.
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by or on behalf of any U.S.
Underwriter through the U.S. Representatives expressly for use in the
Registration Statement or the U.S. Prospectus.
Each preliminary prospectus and the prospectuses filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when
so filed in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and each preliminary prospectus and each
Prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(ii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iii) Financial Statements. The financial statements included in the
Registration Statement and the Prospectuses, together with the related
schedules and notes, present fairly the financial position of the entities
to which they relate as of the dates indicated and their respective
results of operations, shareholders' equity and cash flows for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles under International Accounting
Standards ("IAS GAAP") applied on a consistent basis throughout the
periods involved. The supporting
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schedules included in the Registration Statement present fairly in
accordance with IAS GAAP the information required to be stated therein.
The selected and summary financial data included in the Prospectuses
present fairly the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements included in
the Registration Statement.
(iv) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectuses, except as otherwise stated therein, (A) there has been
no material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business (a "Material Adverse Effect"), (B) there
have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered
as one enterprise, and (C) there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital
stock.
(v) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the British Virgin Islands and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform
its obligations under this Agreement. The Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would
not, singly or in the aggregate, result in a Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each "significant subsidiary"
of the Company (as such term is defined in Rule 1-02 of Regulation S-X)
and all entities in which the Company has a direct or indirect majority
equity interest or voting power (each a "Subsidiary" and, collectively,
the "Subsidiaries") has been duly organized (to the extent applicable) and
is validly existing as a corporation, general partnership, limited
partnership, limited
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liability company or similar entity in good standing (to the extent
applicable) under the laws of the jurisdiction of its organization, has
organizational power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectuses
and is duly qualified as a foreign corporation (or other such entity) to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure
so to qualify or to be in good standing would not, singly or in the
aggregate, result in a Material Adverse Effect. Except as otherwise
disclosed in the Registration Statement, all of the issued and outstanding
capital stock or other ownership interests of each Subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable (to
the extent applicable) and to the extent owned, directly or indirectly, by
the Company, is owned free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity. None of the outstanding shares
of capital stock or other ownership interests of any Subsidiary was issued
in violation of the preemptive or similar rights of any securityholder of
such Subsidiary. The only subsidiaries of the Company are (a) the
subsidiaries listed on Exhibit 21 to the Registration Statement and (b)
certain other subsidiaries which, considered in the aggregate as a single
subsidiary, do not constitute a "significant subsidiary" as defined in
Rule 1-02 of Regulation S-X.
(vii) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
agreements or employee benefit plans referred to in the Prospectuses or
pursuant to the exercise of convertible securities or options referred to
in the Prospectuses). The shares of issued and outstanding capital stock
of the Company have been duly authorized and validly issued and are fully
paid and non-assessable. None of the outstanding shares of capital stock
of the Company was issued in violation of the preemptive or other similar
rights of any direct or indirect securityholder of the Company.
(viii) Authorization of Agreement. The execution, delivery and
performance of this Agreement and the International Purchase Agreement
have been duly authorized by all
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requisite corporate action on the part of the Company. This Agreement and
the International Purchase Agreement have been duly executed and delivered
by the Company.
(ix) Authorization and Description of Securities. The Securities to
be purchased by the U.S. Underwriters and the International Managers from
the Company have been duly authorized for issuance and sale to the U.S.
Underwriters pursuant to this Agreement and the International Managers
pursuant to the International Purchase Agreement, respectively, and, when
issued and delivered by the Company pursuant to this Agreement and the
International Purchase Agreement, respectively, against payment of the
consideration set forth herein and in the International Purchase
Agreement, respectively, will be validly issued, fully paid and
non-assessable. The Class A Ordinary Shares conform in all material
respects to all statements relating thereto contained in the Prospectuses
and such description conforms to the rights set forth in the instruments
defining the same. No holder of the Securities will be subject to personal
liability by reason of being such a holder and the issuance of the
Securities is not subject to the preemptive or other similar rights of any
securityholder of the Company.
(x) Absence of Defaults and Conflicts. Neither the Company nor any
Venture (as defined below) is in violation of its charter or by-laws (or
equivalent constitutive documents) or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company or any Venture is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any
Venture is subject (collectively, "Agreements and Instruments") except for
such defaults that would not, singly or in the aggregate, result in a
Material Adverse Effect. The execution, delivery and performance of this
Agreement and the International Purchase Agreement and the consummation of
the transactions contemplated in this Agreement, the International
Purchase Agreement and in the Registration Statement (including the
issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Prospectuses under the caption
"Use of Proceeds") and compliance by the Company with its obligations
under this Agreement and the International Purchase Agreement have
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been duly authorized by all necessary corporate action and do not and will
not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
or any Venture pursuant to, the Agreements and Instruments (except for
such conflicts, breaches or defaults or liens, charges or encumbrances
that would not, singly or in the aggregate, result in a Material Adverse
Effect), nor will such action result in any violation of the provisions of
the charter or by-laws (or equivalent constitutive documents) of the
Company or any Venture or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any Venture or any of their assets, properties or
operations. As used herein, (a) "Venture" means any entity in which the
Company has a direct or indirect greater than 20% equity interest or
voting power and (b) a "Repayment Event" means any event or condition
which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any Venture.
(xi) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any Venture exists or, to the knowledge of the Company,
is threatened, and the Company is not aware of any existing or threatened
labor disturbance by the employees of any of its or any Venture's
principal suppliers, manufacturers, customers or contractors, which, in
either case, may reasonably be expected to, singly or in the aggregate,
result in a Material Adverse Effect.
(xii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any Venture,
which is required to be disclosed in the Registration Statement (other
than as disclosed therein), or which, singly or in the aggregate, may
reasonably be expected to result in a Material Adverse Effect, or which,
singly or in the aggregate, may reasonably be expected to materially and
adversely affect the properties or assets
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of the Company or any Venture or the consummation of the transactions
contemplated in this Agreement and the International Purchase Agreement or
the performance by the Company of its obligations hereunder or thereunder.
The aggregate of all pending legal or governmental proceedings to which
the Company or any Venture is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental
to the business, singly or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement or the
Prospectuses or to be filed as exhibits thereto which have not been so
described and filed as required.
(xiv) Possession of Intellectual Property. The Company and the
Ventures own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and neither the Company nor any Venture has received
any notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or of
any facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any
Venture therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, may reasonably be expected to result in a
Material Adverse Effect.
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale
of the Securities under this Agreement and the International Purchase
Agreement or the consummation of the transactions contemplated by this
Agreement and the Inter-
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national Purchase Agreement, except such as have been already obtained and
are in full force and effect or as may be required (i) under the 1933 Act
or the 1933 Act Regulations and state securities or blue sky laws or (ii)
under the laws and regulations of jurisdictions outside of the United
States and Canada where the International Managers may offer and sell the
International Securities.
(xvi) Possession of Licenses and Permits. Except as otherwise
disclosed in the Registration Statement, the Company and the Ventures
possess such permits, licenses (including, without limitation, television
broadcast frequency allocations and licenses), approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by the
appropriate national, provincial, state or local regulatory agencies or
bodies necessary to conduct the business now operated by them. The Company
and the Ventures are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, result in a Material Adverse Effect. All
of the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not,
singly or in the aggregate, result in a Material Adverse Effect. Neither
the Company nor any Venture has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xvii) Title to Property. The Company and the Ventures have good and
marketable title to all real property owned by the Company and the
Ventures and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (a) are
described in the Prospectuses or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company or any
Venture. All of the leases and subleases material to the business of the
Company and the Ventures, considered as one enterprise, and under which
the Company or any Venture holds properties described in the Prospectuses,
are in full force and effect, and neither the Company nor any Venture has
any notice of any material claim
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of any sort that has been asserted by anyone adverse to the rights of the
Company or any Venture under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or such
Venture to the continued possession of the leased or subleased premises
under any such lease or sublease.
(xviii) Compliance with Research Guidelines. The Company, directly
or indirectly, has not taken and will not take any action that is
inconsistent with the guidelines set forth in the memorandum dated January
14, 1999 of Xxxxxx Xxxxxx & Xxxxxxx relating to research reports, and,
without limiting the foregoing, has not distributed and will not
distribute, in any manner, any research report contemplated by such
research guidelines or any portion thereof.
(xix) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectuses
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xx) Environmental Laws. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any Venture is in
violation of any national, provincial, state or local statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution
or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and the Ventures have all permits,
authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (C) there are no
pending or threatened ad-
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ministrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any Venture and (D) there are no events or circumstances that
might reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any
Venture relating to Hazardous Materials or any Environmental Laws.
(xxi) Registration Rights. Except as disclosed in the Prospectuses,
there are no persons with registration rights or other similar rights to
have any securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
(xxii) Statistical and Market-Related Data. The statistical and
market-related data included in the Prospectuses are based on or derived
from sources which the Company believes to be reliable and accurate in all
material respects or represent the Company's good faith estimates that are
made on the basis of data derived from such sources.
(xxiii) Johannesburg Stock Exchange. All authorizations, approvals,
consents, qualifications or decrees of the Johannesburg Stock Exchange
which are necessary or required for the performance by the Company of its
obligations hereunder have been obtained.
(b) Officer's Certificates. Any certificate signed by any officer
of the Company or any Ventures delivered to the Global Coordinator, the U.S.
Representatives or to counsel for the U.S. Underwriters shall be deemed a
representation and warranty by the Company to each U.S. Underwriter as to the
matters covered thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.
(a) Initial Securities. The Company agrees to sell to each U.S.
Underwriter, severally and not jointly, and on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, each U.S. Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule B, the number of
Initial U.S. Securities set forth in Schedule
-14-
A opposite the name of such U.S. Underwriter, plus any additional number of
Initial U.S. Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, the Company hereby grants an
option to the U.S. Underwriters, severally and not jointly, to purchase up to an
additional 622,500 Class A Common Shares at the price per share set forth in
Schedule B, less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial U.S. Securities but not
payable on the U.S. Option Securities. The option hereby granted will expire 30
days after the date hereof and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial U.S. Securities
upon notice by the Global Coordinator to the Company setting forth the number of
U.S. Option Securities as to which the several U.S. Underwriters are then
exercising the option and the time and date of payment and delivery for such
U.S. Option Securities. Any such time and date of delivery for the U.S. Option
Securities (a "Date of Delivery") shall be determined by the Global Coordinator,
but shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter defined. If
the option is exercised as to all or any portion of the U.S. Option Securities,
each of the U.S. Underwriters, acting severally and not jointly, on the basis of
the representations and warranties of the Company contained herein and subject
to the terms and conditions herein set forth, will purchase that proportion of
the total number of U.S. Option Securities then being purchased which the number
of Initial U.S. Securities set forth in Schedule A opposite the name of such
U.S. Underwriter bears to the total number of Initial U.S. Securities, subject
in each case to such adjustments as the Global Coordinator in its discretion
shall make to eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Xxxxxx
Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other
place as shall be agreed upon by the Global Coordinator and the Company, at 9:00
A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on the date hereof) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed
-15-
upon by the Global Coordinator and the Company (such time and date of payment
and delivery being herein called "Closing Time").
In addition, in the event that any or all of the U.S. Option
Securities are purchased by the U.S. Underwriters, payment of the purchase price
for, and delivery of certificates for, such U.S. Option Securities shall be made
at the above-mentioned offices, or at such other place as shall be agreed upon
by the Global Coordinator and the Company, on each Date of Delivery as specified
in the notice from the Global Coordinator to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the U.S. Representatives for the respective accounts of the U.S. Underwriters of
certificates for the U.S. Securities to be purchased by them. It is understood
that each U.S. Underwriter has authorized the U.S. Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial U.S. Securities and the U.S. Option Securities, if any,
which it has agreed to purchase. Xxxxxxx Xxxxx, individually and not as
representative of the U.S. Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Initial U.S. Securities or the U.S.
Option Securities, if any, to be purchased by any U.S. Underwriter whose funds
have not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such U.S. Underwriter from
its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representatives may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
U.S. Securities and the U.S. Option Securities, if any, will be made available
for examination and packaging by the U.S. Representatives in The City of New
York not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
(e) Appointment of Qualified Independent Underwriter. The Company
hereby confirms its engagement of Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation ("DLJ") as, and DLJ hereby confirms its agreement with the Company
to render
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services as, a "qualified independent underwriter" within the meaning of Section
(b)(15) of Rule 2720 of the Conduct Rules of the National Association of
Securities Dealers, Inc. (the "NASD") with respect to the offering and sale of
the U.S. Securities. DLJ, solely in its capacity as qualified independent
underwriter and not otherwise, is referred to herein as the "Independent
Underwriter". As compensation for the services of the Independent Underwriter
hereunder, the Company agrees to pay the Independent Underwriter $5,000 at the
Closing Time. The price at which the U.S. Securities will be sold to the public
shall not be higher than the maximum price recommended by the Independent
Underwriter.
SECTION 3. Covenants of the Company. The Company covenants with each
U.S. Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify the
Global Coordinator immediately, and confirm the notice in writing, (i)
when any post-effective amendment to the Registration Statement shall
become effective, or any supplement to the Prospectuses or any amended
Prospectuses shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectuses or for additional information, and (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424(b)
and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was
not, it will promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Filing of Amendments. The Company will give the Global
Coordinator notice of its intention to file or prepare any amendment to
the Registration Statement (includ-
-17-
ing any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the
Prospectuses, will furnish the Global Coordinator with copies of any such
documents a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such document to
which the Global Coordinator or counsel for the U.S. Underwriters shall
object.
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to the U.S. Representatives and counsel for the U.S.
Underwriters, without charge, signed copies of the Registration Statement
as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein) and signed copies of
all consents and certificates of experts, and will also deliver to the
U.S. Representatives, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without
exhibits) for each of the U.S. Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the U.S.
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
U.S. Underwriter, without charge, as many copies of each preliminary
prospectus as such U.S. Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each U.S. Underwriter, without
charge, during the period when the U.S. Prospectus is required to be
delivered under the 1933 Act or the Securities Exchange of 1934 (the "1934
Act"), such number of copies of the U.S. Prospectus (as amended or
supplemented) as such U.S. Underwriter may reasonably request. The U.S.
Prospectus and any amendments or supplements thereto furnished to the U.S.
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agree-
-18-
ment, the International Purchase Agreement and the Prospectuses. If at any
time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion
of counsel for the U.S. Underwriters or for the Company, to amend the
Registration Statement or amend or supplement any Prospectus in order that
the Prospectuses will not include any untrue statements of a material fact
or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement any Prospectus in order to comply with
the requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the
Prospectuses comply with such requirements, and the Company will furnish
to the U.S. Underwriters such number of copies of such amendment or
supplement as the U.S. Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the U.S. Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws of
such states and other jurisdictions (domestic or foreign) as the Global
Coordinator may designate and to maintain such qualifications in effect
for a period of not less than one year from the later of the effective
date of the Registration Statement; provided, however, that the Company
shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject. In each jurisdiction in which the Securities
have been so qualified, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order
-19-
to make generally available to its securityholders as soon as practicable
an earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified in
the Prospectuses under "Use of Proceeds."
(i) Listing. The Company will use its best efforts to effect the
listing of the Class A Ordinary Shares (including the Securities) on the
Amsterdam Stock Exchange and comply with the requirements of such exchange
to maintain such listing. In addition, the Company will use its best
efforts to effect and maintain the quotation of the Class A Ordinary
Shares (including the Securities) on the Nasdaq National Market and will
file with the Nasdaq National Market all documents and notices required by
the Nasdaq National Market of companies that have securities that are
traded in the over-the-counter market and quotations for which are
reported by the Nasdaq National Market.
(j) Restriction on Sale of Securities. During a period of 180 days
from the date of the Prospectuses, the Company will not, without the prior
written consent of the Global Coordinator, directly or indirectly, (i)
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase or otherwise dispose of or transfer any Class A
Ordinary Shares or any securities convertible into or exercisable or
exchangeable for Class A Ordinary Shares (including, without limitation,
the Class B Ordinary Shares) or file any registration statement under the
1933 Act with respect to any of the foregoing or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Class A Ordinary Shares, whether any such transaction described in clause
(i) or (ii) above is to be settled by delivery of Class A Ordinary Shares
or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to (A) the sale of the Securities hereunder or under the
International Purchase Agreement or (B) the issuance of any Class A
Ordinary Shares by the Company upon the exercise of options or warrants or
the conversion of securities
-20-
outstanding on the date hereof and referred to in the Prospectuses. In
addition, during a period of one year from the date of the Prospectuses,
the Company will not, without the prior written consent of the Global
Coordinator, file any registration statement under the 1933 Act for the
benefit of any person (or any of their transferees) listed on Schedule C
hereto.
(k) Reporting Requirements. The Company, during the period when
the Prospectuses are required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act and rules and regulations of the Commission
thereunder within the time periods referred to therein.
(l) Compliance with Rule 463. The Company will file with the
Commission such reports as may be required pursuant to Rule 463 of the
1933 Act Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay
all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, issuance
and delivery of the certificates for the Securities to the Underwriters,
including any stock or other transfer taxes and any stamp or other duties
payable upon the sale, issuance or delivery of the Securities to the
Underwriters and the transfer of the Securities between the U.S. Underwriters
and the International Managers, (iii) the fees and disbursements of the
Company's counsel, accountants and other advisors, (iv) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and disbursements of
counsel with the preparation of the Blue Sky Survey and any supplement thereto,
(v) the printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheets and of the Prospectuses and any amendments or
supplements thereto, (vi) all "road show" expenses of the Company and the
Underwriters, (vii) the preparation, printing and delivery to the Underwriters
of copies of any Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of any transfer agent or registrar for the Securities, (ix) the filing
fees incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by the NASD of the terms of the sale
of the Securities, (x) the fees and expenses incurred in connection with the
inclusion of the Securities in
-21-
the Nasdaq National Market and (xi) the fees and expenses of the Independent
Underwriter.
(b) Termination of Agreement. If this Agreement is terminated by
the U.S. Representatives in accordance with the provisions of Section 5 hereof
(other than in accordance with paragraph (j) as a result of the failure of the
International Managers to comply with their obligations under the International
Purchase Agreement) or Section 9(a)(i) hereof, the Company shall reimburse the
U.S. Underwriters for all of their out-of-pocket expenses incurred by the U.S.
Underwriters in connection with this Agreement or the offering of the Securities
contemplated hereunder, including the reasonable fees and disbursements of
counsel and special counsel for the U.S. Underwriters.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The
obligations of the several U.S. Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement has become effective and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened
by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the U.S. Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance
with the requirements of Rule 430A) or, if the Company has elected to rely
upon Rule 434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of
Closing Time, of each of (i) Xxxxxxx Xxxxxx & Xxxxx, counsel for the
Company, (ii) Xxxxxx Xxxxxxxx and Riegels, special British Virgin Islands
counsel for the Company, (iii) Mallinicks, special
-22-
counsel and regulatory counsel for the Company, (iv) Zepos & Zepos,
special Greek counsel for the Company, (v) Xxxxx Dutilh, special Dutch
regulatory counsel for the Company, (vi) Loyens & Volkmaars, special Dutch
tax counsel for the Company, and (vii) White & Case (Thailand) Limited,
special Thai counsel for the Company, each in form and substance
satisfactory to counsel for the U.S. Underwriters, together with signed or
reproduced copies of such letters for each of the other U.S. Underwriters
to the effect set forth in Exhibits A-1 through A-7 hereto, respectively.
(c) Opinion of Counsel for U.S. Underwriters. At Closing Time, the
U.S. Representatives shall have received the favorable opinion, dated as
of Closing Time, of each of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the U.S.
Underwriters, and Linklaters & Paines, special Thai counsel to the U.S.
Underwriters, together with signed or reproduced copies of such letter for
each of the other U.S. Underwriters as to such matters as are reasonably
requested by the Representatives.
(d) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectuses, any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, and the U.S. Representatives shall have received a
certificate of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1(a)
hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted, are pending or
are contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the U.S. Representatives shall have received from
PricewaterhouseCoopers Inc. a
-23-
letter dated such date, in form and substance satisfactory to the U.S.
Representatives, together with signed or reproduced copies of such letter
for each of the other U.S. Underwriters containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectuses.
(f) Bring-down Comfort Letter. At Closing Time, the
Representatives shall have received from PricewaterhouseCoopers Inc. a
letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of this
Section, except that the specified date referred to shall be a date not
more than three business days prior to Closing Time.
(g) Approval of Listing. At Closing Time, the Securities shall
have been approved for listing on the Amsterdam Stock Exchange and shall
have been approved for inclusion in the Nasdaq National Market, in each
case, subject only to official notice of issuance.
(h) No Objection. The NASD has confirmed that it has not raised
any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(i) Lock-up Agreements. At the date of this Agreement, the U.S.
Representatives shall have received an agreement substantially in the form
of Exhibit B hereto signed by the persons listed on Schedule C hereto.
(j) Purchase of Initial International Securities.
Contemporaneously with the purchase by the U.S. Underwriters of the
Initial U.S. Securities under this Agreement, the International Managers
shall have purchased the Initial International Securities under the
International Purchase Agreement.
(k) Conditions to Purchase of U.S. Option Securities. In the event
that the U.S. Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the U.S. Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any subsidiary
of the Company hereunder shall be true and correct as of each Date of
Delivery and,
-24-
at the relevant Date of Delivery, the U.S. Representatives shall have
received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(d) hereof remains true and correct as of such
Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion,
dated as of such Date of Delivery, of each of counsels listed in
Section 5(b), each in form and substance satisfactory to counsel for
the U.S. Underwriters, relating to the U.S. Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect
as the opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for U.S. Underwriters. The favorable
opinion of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the U.S.
Underwriters, and of Linklaters & Paines, special Thai counsel to
the U.S. Underwriters, each dated such Date of Delivery, relating to
the U.S. Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section
5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from
PricewaterhouseCoopers Inc., in form and substance satisfactory to
the U.S. Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished
to the U.S. Representatives pursuant to Section 5(f) hereof, except
that the "specified date" in the letter furnished pursuant to this
paragraph shall be a date not more than five days prior to such Date
of Delivery.
(l) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the U.S. Underwriters shall have been furnished with
such documents and opinions as they may reasonably require for the purpose
of enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection
-25-
with the issuance and sale of the Securities as herein contemplated shall
be satisfactory in form and substance to the U.S. Representatives and
counsel for the U.S. Underwriters.
(m) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of U.S. Option Securities on a Date of Delivery which is after
the Closing Time, the obligations of the several U.S. Underwriters to
purchase the relevant Option Securities, may be terminated by the U.S.
Representatives by notice to the Company at any time at or prior to
Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of U.S. Underwriters. (1) The Company agrees
to indemnify and hold harmless each U.S. Underwriter and each person, if any,
who controls any U.S. Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectuses (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation,
-26-
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
U.S. Underwriter through the U.S. Representatives expressly for use in the
Registration Statement (or any amendment or supplement thereto), including the
Rule 430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the U.S. Prospectus (or any amendment or supplement
thereto).
(2) In addition to and without limitation of the Company's
obligation to indemnify DLJ as an Underwriter, the Company also agrees to
indemnify and hold harmless the Independent Underwriter and each person, if any,
who controls the Independent Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act (each, a "QIU Indemnified Party"), from
and against any and all loss, liability, claim, damage and expense whatsoever,
as incurred, incurred as a result of the Independent Underwriter's participation
as a "qualified independent underwriter" within the meaning of Section (b)(15)
of Rule 2720 of the Conduct Rules of the NASD in connection with the offering of
the U.S. Securities, including, without limitation, the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
with respect thereto; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company.
-27-
(b) Indemnification of Company, Directors and Officers. Each U.S.
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a)(1) of this Section, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment or supplement thereto), including the
Rule 430A Information and the Rule 434 Information, if applicable, or any
preliminary U.S. prospectus or the U.S. Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such U.S. Underwriter through the U.S.
Representatives expressly for use in the Registration Statement (or any
amendment or supplement thereto) or such preliminary prospectus or the U.S.
Prospectus (or any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
6(a)(1) above, counsel to the indemnified parties shall be selected by Xxxxxxx
Xxxxx, and, in the case of parties indemnified pursuant to Section 6(b) above,
counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances;
provided, that, if indemnity is sought pursuant to Section 6(a)(2), then, in
addition to the fees and expenses of such counsel for the indemnified parties,
the indemnifying party shall be liable for
-28-
the reasonable fees and expenses of not more than one counsel (in addition to
any local counsel) separate from its own counsel and that of the other
indemnified parties for the QIU Indemnified Parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances if, in the
reasonable judgment of the Independent Underwriter, there may be legal defenses
available to the QIU Indemnified Parties that are different from or additional
to those available to the other indemnified parties. Any such separate counsel
for the QIU Indemnified Parties shall be designated in writing by the
Independent Underwriter. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement Without Consent if Failure To Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(1)(ii) or 6(a)(2) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemni-
-29-
fied party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the U.S.
Underwriters on the other hand from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of the U.S. Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and
the U.S. Underwriters on the other hand in connection with the offering of the
U.S. Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the U.S.
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the U.S.
Underwriters, in each case as set forth on the cover of the U.S. Prospectus, or,
if Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the U.S. Securities as set forth on
such cover.
The relative fault of the Company on the one hand and the U.S.
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the U.S. Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the U.S. Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the U.S. Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by
-30-
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 7, (i) no U.S.
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the U.S. Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such U.S. Underwriter has otherwise been required to pay by reason
of any such untrue or alleged untrue statement or omission or alleged omission
and (ii) the QIU Indemnified Parties shall not be required to contribute an
aggregate amount exceeding the fee received by the Independent Underwriter
pursuant to Section 2(e) hereof.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a
U.S. Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial U.S. Securities set forth
opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements To Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any Venture submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any U.S. Underwriter or controlling
person or any QIU Indemnified Party, or by or on behalf of the Company, and
shall survive delivery of the Securities to the U.S. Underwriters.
-31-
SECTION 9. Termination of Agreement.
(a) Termination; General. The U.S. Representatives may terminate
this Agreement, by notice to the Company, at any time at or prior to Closing
Time (i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the U.S.
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the U.S. Representatives, impracticable to market the Securities or
to enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission, the Amsterdam Stock Exchange or the Nasdaq National Market, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, or (iv)
if a banking moratorium has been declared by South African, Dutch, United States
Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the U.S. Underwriters. If one
or more of the U.S. Underwriters shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the U.S. Representatives
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting U.S. Underwriters, or any other underwriters, to
purchase all, but
-32-
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, the U.S. Representatives
shall not have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the number of U.S. Securities to be purchased on such date, each of the
non-defaulting U.S. Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of U.S. Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery which occurs after the Closing Time,
the obligation of the U.S. Underwriters to purchase and of the Company to
sell the Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of any
non-defaulting U.S. Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting U.S. Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of Delivery which is
after the Closing Time, which does not result in a termination of the obligation
of the U.S. Underwriters to purchase and the Company to sell the relevant U.S.
Option Securities, as the case may be, either the U.S. Representatives or the
Company shall have the right to postpone Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "U.S. Underwriter"
includes any person substituted for a U.S. Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the U.S.
Underwriters shall be directed to the U.S. Representatives c/o Merrill Xxxxx &
Co., Xxxxxxx Xxxxx Xxxxxx, Xxxxxx & Xxxxx Incorporated at
-00-
Xxxxx Xxxxx, Xxxxx Financial Center, New York, New York 10281-1201, attention of
[ ]; and notices to the Company shall be directed to it at [ ], attention of
[ ].
SECTION 12. Parties. This Agreement shall each inure to the benefit
of and be binding upon the U.S. Underwriters and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the U.S. Underwriters, the Independent Underwriter and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7, and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the U.S. Underwriters, the Independent Underwriter and the
Company and their respective successors, and said controlling persons and
officers and directors, and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any U.S. Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICT OF LAWS. SPECIFIED TIMES OF
DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Agreement, the Company (i)
acknowledges that it has, by separate written instrument, designated and
appointed CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (and
any successor entity), as its authorized agent upon which process may be served
in any suit or proceeding arising out of or relating to this Agreement that may
be instituted in any Federal or state court in the Borough of Manhattan, City of
New York, State of New York, or brought under the United States Federal or state
securities laws, and acknowledges that CT Corporation System has accepted such
designation, (ii) submits to the non-exclusive jurisdiction of any such court in
any such suit or proceeding and (iii) agrees that service of process upon CT
Corporation System and written notice of said service to the Company in
accordance with Section 11 shall be deemed in every respect effective service of
process upon the Company in any
-34-
such suit or proceeding. The Company further agrees to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
CT Corporation System in full force and effect so long as any of the Class A
Ordinary Shares shall be outstanding; provided, however, that the Company may,
by written notice to the U.S. Representatives, designate such additional or
alternative agent for service of process under this Section 14 that (i)
maintains an office located in the Borough of Manhattan, City of New York, in
the State of New York and (ii) is either (x) counsel for the Company or (y) a
corporate service company which acts as agent for service of process for other
persons in the ordinary course of its business. Such written notice shall
identify the name of such agent for process and the address of the office of
such agent for service of process in the Borough of Manhattan, City of New York,
State of New York.
To the extent that the Company or any of its properties, assets or
revenues may or may hereafter become entitled to, or have attributed to the
Company, any right of immunity, on the grounds of sovereignty or otherwise, from
any legal action, suit or proceeding, from the giving of any relief in any such
legal action, suit or proceeding, from setoff or counterclaim, from the
jurisdiction of any New York or U.S. federal court, from service of process,
from attachment upon or prior to judgment, from attachment in aid of execution
of judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any such
court in which proceedings may at any time be commenced, with respect to the
obligations and liabilities of the Company, or any other matter under or arising
out of or in connection with this Agreement or the International Purchase
Agreement, the Company hereby irrevocably and unconditionally waives such right,
and agrees not to plead or claim any such immunity, and consents to such relief
or enforcement.
SECTION 15. Judgment Currency. The Company agrees to indemnify each
U.S. Underwriter, the Independent Underwriter and each person, if any, who
controls any U.S. Underwriter or the Independent Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any loss
incurred by such party as a result of any judgment or order being given or made
against the Company for any U.S. dollar amount due under this Agreement and such
judgment or order being expressed and paid in a currency (the "Judgment
Currency") other than United States dollars and as a result of any variation as
between (i) the rate of exchange at which the United
-35-
States dollar amount is converted into the Judgment Currency for the purpose of
such judgment or order and (ii) the spot rate of exchange in The City of New
York at which such party on the date of payment of such judgment or order is
able to purchase United States dollars with the amount of the Judgment Currency
actually received by such party if such party had utilized such amount of
Judgment Currency to purchase United States dollars as promptly as practicable
upon such party's receipt thereof. The foregoing indemnity shall continue in
full force and effect notwithstanding any such judgment or order as aforesaid.
The term "spot rate of exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, United
States dollars.
SECTION 16. Effect of Headings. The Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 17. Counterparts. This Agreement may be executed in one or
more counterparts and, when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
-36-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the U.S. Underwriters and the Company in accordance with its terms.
Very truly yours,
MIH LIMITED
By
-----------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By
--------------------------------------
Authorized Signatory
For themselves and as U.S. Representatives of the other U.S. Underwriters named
in Schedule A hereto.
SCHEDULE A
Number of
Initial U.S.
Name of U.S. Underwriter Securities
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.................................................
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation....................................... _________
Total............................................................ 4,150,000
=========
Schedule A-1
SCHEDULE B
MIH LIMITED
4,150,000
Class A Ordinary Shares
(No Par Value)
1. The initial public offering price per share for the Securities,
determined as provided in Section 2, shall be $__________.
2. The purchase price per share for the U.S. Securities to be paid
by the several U.S. Underwriters shall be $__________, being an amount
equal to the initial public offering price set forth above less
$__________ per share; provided that the purchase price per share for any
U.S. Option Securities purchased upon the exercise of the over-allotment
option described in Section 2(b) shall be reduced by an amount per share
equal to any dividends or distributions declared by the Company and
payable on the Initial U.S. Securities but not payable on the U.S. Option
Securities.
Schedule B-1
SCHEDULE C
List of Persons and Entities Subject
to Lock-Up
1. MIH (BVI) Limited
2. Johnnies Industrial Corporation Limited
3. SuperSport International Holdings Limited
4. Thomson Consumer Electronics, Inc.
5. Xxx Xxxxxx
6. Xxxxxxx X.X. Stofberg
7. X.X. Xxxxxx
8. Xxxxxxx Xxxx
9. Xxxxxxxx X.X. Hawinkels
10. Xxxxxxx Xxxxxxxx
11. Xxxxxxx X.X. Xxxxx
12. Xxxxxx X. Xxxxxxx
13. Xxxxx X. Xxxxxxxxxx
14. Xxxxxx X. Xxxxx
15. Xxxxx Volkwyn
Schedule X-0
-0-
Xxxxxxx X-0
FORM OF OPINION OF CRAVATH, SWAINE & XXXXX
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
X-0-0
Xxxxxxx X-0
FORM OF OPINION OF XXXXXX XXXXXXXX & RIEGELS
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
X-0-0
Xxxxxxx X-0
FORM OF OPINION OF MALLINICKS
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
X-0-0
Xxxxxxx X-0
FORM OF OPINION OF ZEPOS & ZEPOS
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
X-0-0
Xxxxxxx X-0
FORM OF OPINION OF XXXXX DUTILH
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
X-0-0
Xxxxxxx X-0
FORM OF OPINION OF LOYENS & VOLKMAARS
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
X-0-0
Xxxxxxx X-0
FORM OF OPINION OF WHITE & CASE (THAILAND) LIMITED
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
X-0-0
Xxxxxxx X
, 0000
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
North Tower
World Financial Center
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxx Xxxxxx of America
XXXXXXX XXXXX INTERNATIONAL
DLJ SECURITIES INTERNATIONAL
MEESPIERSON N.V.
c/o Merrill Xxxxx International
00 Xxxxxxxxx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Re: Agreement not to sell or otherwise
dispose of securities of MIH Limited
Ladies and Gentlemen:
The undersigned understands that MIH Limited (the "Company")
proposes to file a registration statement on Form F-1 (the "Registration
Statement") with the United States Securities and Exchange Commission in
connection with the initial public offering (the "Offering") of ordinary shares
("Shares") of the Company. The undersigned further understands that the Company
proposes to enter into one or more purchase agreements (collectively, the
"Purchase Agreement") with you as representative of the underwriters of the
Offering (the Underwriters").
In recognition of the benefit that the Offering will confer upon the
undersigned as a securityholder of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to induce the Company and the Underwriters to enter into the Pur-
-3-
chase Agreement and to proceed with the Offering, the undersigned hereby agrees,
that from the date hereof until the first anniversary of the date of the
Purchase Agreement, the undersigned will not, without the prior written consent
of Xxxxxxx Xxxxx International, directly or indirectly, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant for the sale of, or
otherwise dispose of or transfer (collectively, a "Covered Sale") any Shares
(other than any Shares registered in the Offering) or any securities convertible
into or exchangeable or exercisable for any Shares, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition (collectively, the "Locked
Shares") or request the filing of any registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to any
of the foregoing (it being understood that such a request shall not be deemed to
have been made pursuant to any registration rights agreement until a request is
made thereunder and the mere entering into of any registration rights agreement
shall not be deemed such a request) or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of Shares, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of the Shares or other securities, in cash or otherwise.
Notwithstanding the foregoing, on or after the date which is 181
days after the date of the Purchase Agreement, the undersigned may make a
Covered Sale of any Locked Shares, pursuant to a private sale exempt from
registration under the Securities Act and without engaging in any marketing
activities, other than to any broker dealer, bank, investment fund, investment
company, insurance company, trust fund, employee benefit plan or similar
financial institution; provided, however, that (x) the aggregate number of
transferees (including subsequent transferees) who hold Locked Shares prior to
the first anniversary of the date of the Purchase Agreement shall not exceed
five and (y) each such transferee (including any subsequent transferee) must
agree in writing to be bound by the terms of this agreement as if a party
hereto.
-4-
Sincerely,
Name of Securityholder:
------------------------------
(Print)
Signature:
------------------------------
Name:
Title:
(if not natural person)
