Exhibit 1.2
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MIH LIMITED
(a British Virgin Islands corporation)
3,200,000 Class A Ordinary Shares
INTERNATIONAL PURCHASE AGREEMENT
Dated: April 17, 2000
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TABLE OF CONTENTS
INTERNATIONAL PURCHASE AGREEMENT.........................................................................1
SECTION 1. Representations and Warranties.........................................................3
(a) Representations and Warranties by the Company..........................................4
(i) Compliance with Registration Requirements.....................................4
(ii) 1934 Act Reports..............................................................5
(iii) Independent Accountants.......................................................5
(iv) Financial Statements..........................................................5
(v) No Material Adverse Change in Business........................................6
(vi) Good Standing of the Company..................................................6
(vii) Good Standing of Subsidiaries.................................................6
(viii) Capitalization................................................................7
(ix) Company Authorization of Agreement............................................7
(x) Authorization and Description of Securities...................................7
(xi) Absence of Defaults and Conflicts.............................................8
(xii) Absence of Labor Dispute......................................................8
(xiii) Absence of Proceedings........................................................9
(xiv) Accuracy of Exhibits..........................................................9
(xv) Possession of Intellectual Property...........................................9
(xvi) Absence of Further Requirements...............................................9
(xvii) Possession of Licenses and Permits...........................................10
(xviii) Title to Property............................................................10
(xix) Compliance with Research Guidelines. .......................................10
(xx) Investment Company Act.......................................................11
(xxi) Environmental Laws...........................................................11
(xxii) Registration Rights..........................................................11
(xxiii) Passive Foreign Investment Company...........................................12
(xxiv) Passive Foreign Holding Company..............................................12
(xxv) Statistical and Market-Related Data..........................................12
(xxvi) Johannesburg Stock Exchange..................................................12
(xxvii) Absence of Manipulation......................................................12
(b) Officers' Certificates................................................................15
SECTION 2...............................................................................................15
(a) Initial Securities....................................................................15
(b) Option Securities.....................................................................16
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(c) Payment. Payment.....................................................................16
(d) Denominations; Registration...........................................................17
SECTION 3. Covenants of the Company.....................................................................18
(a) Compliance with Securities Regulations and Commission Requests........................18
(b) Filing of Amendments..................................................................18
(c) Delivery of Registration Statements...................................................18
(d) Delivery of Prospectuses..............................................................19
(e) Continued Compliance with Securities Laws.............................................19
(f) Blue Sky Qualifications...............................................................19
(g) Rule 158..............................................................................20
(h) Use of Proceeds.......................................................................20
(i) Restriction on Sale of Securities.....................................................20
(j) Reporting Requirements................................................................21
SECTION 4. Payment of Expenses..........................................................................21
(a) Expenses..............................................................................21
(b) Termination of Agreement..............................................................21
SECTION 5. Conditions of International Managers' Obligations............................................22
(a) Effectiveness of Registration Statement...............................................22
(b) Opinion of Counsel for Company........................................................22
(c) Opinion of Counsel for the International Managers.....................................23
(d) Officers' Certificate.................................................................23
(e) Accountant's Comfort Letter...........................................................23
(f) Bring-down Comfort Letter.............................................................24
(g) Approval of Listing...................................................................24
(h) No Objection..........................................................................24
(i) Lock-up Agreements....................................................................24
(j) Purchase of Initial International Securities..........................................24
(k) Conditions to Purchase of International Option Securities.............................24
(i) Officers' Certificate.................................................................24
(ii) Opinion of Counsel for Company........................................................25
(iii) Opinion of Counsel for International Managers.........................................25
(iv) Bring-down Comfort Letter.............................................................25
(l) Additional Documents..................................................................25
(m) Termination of Agreement..............................................................26
SECTION 6. Indemnification.............................................................................26
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(a) Indemnification of International Managers by Company..................................26
(b) Indemnification of Company, Directors and Officers....................................28
(c) Actions Against Parties; Notification.................................................28
(d) Settlement Without Consent if Failure to Reimburse....................................29
(e) Other Agreements with Respect to Indemnification......................................29
SECTION 7. Contribution.................................................................................29
SECTION 8. Representations, Warranties and Agreements to Survive Delivery...............................31
SECTION 9. Termination of Agreement.....................................................................31
(a) Termination; General..................................................................31
(b) Liabilities...........................................................................32
SECTION 10. Default by One or More of the International Managers.......................................32
SECTION 11. Default by the Company.....................................................................33
SECTION 12. Notices....................................................................................33
SECTION 13. Parties....................................................................................34
SECTION 14. Governing Law and Time.....................................................................34
SECTION 15. Agent for Service; Submission to Jurisdiction; Waiver of Immunities. .....................34
SECTION 16. Judgment Currency..........................................................................35
SECTION 17. Effect of Headings.........................................................................36
SECTION 18. Counterparts...............................................................................36
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SCHEDULES
Schedule A - List of International Managers..........................................Sch A-1
Schedule B - List of Selling Shareholders............................................Sch B-1
Schedule C - Pricing Information.....................................................Sch C-1
Schedule D - List of Persons subject to Lock-up......................................Sch D-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel......................................A-1
Exhibit B - Form of Lock-up Letter....................................................B-1
MIH LIMITED
(a British Virgin Islands corporation)
3,200,000 Class A Ordinary Shares
(No Par Value)
INTERNATIONAL PURCHASE AGREEMENT
April 17, 2000
XXXXXXX XXXXX INTERNATIONAL
MEESPIERSON N.V.
as Lead Managers of the several International Managers
c/o Merrill Xxxxx International
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
MIH Limited, an international business company organized under the laws
of the British Virgin Islands (the "COMPANY") confirms its respective agreements
with Xxxxxxx Xxxxx International ("XXXXXXX XXXXX") and each of the international
managers named in SCHEDULE A hereto, if any (collectively, the "INTERNATIONAL
MANAGERS," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Xxxxxxx Xxxxx and
MeesPierson N.V. are acting as representatives (in such capacity, the "LEAD
MANAGERS"), with respect to (i) the issue and sale by the Company and the
purchase by the International Managers, acting severally and not jointly, of the
respective numbers of Class A Ordinary Shares, no par value, of the Company
("CLASS A ORDINARY SHARES") set forth in said SCHEDULE A and in SCHEDULE B
hereto and (ii) the grant by the Company to the International Managers, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 480,000 additional Class A Ordinary Shares to cover
over-allotments, if any. The aforesaid 3,200,000 Class A Ordinary Shares (the
"INITIAL INTERNATIONAL SECURITIES") to be purchased by the International
Managers and all or any part of the 480,000 Class A Ordinary Shares subject to
the option described in Section 2(b) hereof (the "INTERNATIONAL OPTION
SECURITIES") are hereinafter called, collectively, the "INTERNATIONAL
SECURITIES".
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It is understood that the Company is concurrently entering
into an agreement dated the date hereof (the "U.S. PURCHASE AGREEMENT" and,
together with the International Purchase Agreement, the "PURCHASE AGREEMENTS")
providing for the offering by the Company of an aggregate of 800,000 Class A
Ordinary Shares (the "INITIAL U.S. SECURITIES") through arrangements with
certain underwriters inside the United States and Canada (the "U.S.
UNDERWRITERS") for which Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated is
acting as the U.S. representative (the "U.S. REPRESENTATIVE") and the grant by
the Company to the U.S. Underwriters, acting severally and not jointly, of an
option to purchase all or any part of the U.S. Underwriters' pro rata portion of
up to 120,000 additional Class A Ordinary Shares solely to cover
over-allotments, if any (the "U.S. OPTION SECURITIES" and, together with the
International Option Securities, the "OPTION SECURITIES"). The Initial U.S.
Securities and the U.S. Option Securities are hereinafter called the "U.S.
SECURITIES." It is understood that the Company is not obligated to sell, and the
International Managers are not obligated to purchase, any Initial International
Securities unless all of the Initial U.S. Securities are contemporaneously
purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are
hereinafter collectively called the "UNDERWRITERS," the Initial International
Securities and the Initial U.S. Securities are hereinafter collectively called
the "INITIAL SECURITIES," and the International Securities and the U.S.
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 International Managers
propose to make a public offering of the International Securities as soon as the
Lead Managers deem advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form F-1 (No. 333-32736) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 ACT"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("RULE 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 ACT REGULATIONS") and paragraph (b) of Rule 424 ("RULE 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("RULE 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"TERM SHEET") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection
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with the offering and sale of the Securities: one relating to the International
Securities (the "FORM OF INTERNATIONAL PROSPECTUS") and one relating to the U.S.
Securities (the "FORM OF U.S. PROSPECTUS"). The Form of International Prospectus
is identical to the Form of U.S. Prospectus, except for the front cover and back
cover pages and the information under the captions "UNDERWRITING" and
"ADDITIONAL INFORMATION" and the inclusion in the Form of International
Prospectus of a section under the caption "CERTAIN NETHERLANDS TAX
CONSEQUENCES." The information included in any such prospectus or in any such
Term Sheet, 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
International Prospectus and Form of U.S. Prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "PRELIMINARY PROSPECTUS." Such registration
statement, including the exhibits thereto and the schedules thereto, at the time
it became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "REGISTRATION STATEMENT." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final Form of International Prospectus and the final
Form of U.S. Prospectus in the forms first furnished to the Underwriters for use
in connection with the offering of the Securities are herein called the
"INTERNATIONAL PROSPECTUS" and the "U.S. PROSPECTUS," respectively, and
collectively, the "PROSPECTUSES." If Rule 434 is relied on, the terms
"INTERNATIONAL PROSPECTUS" and "U.S. PROSPECTUS" shall refer to the preliminary
International Prospectus dated April 3, 2000 and the preliminary U.S. Prospectus
dated April 3, 2000, respectively, each together with the applicable Term Sheet
and all references in this Agreement to the date of such Prospectuses shall mean
the date of the Term Sheet. For purposes of this Agreement, all references to
the Registration Statement, any preliminary prospectus, the International
Prospectus, the U.S. Prospectus or any Term Sheet or any amendment or supplement
to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("XXXXX").
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each International Manager 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
International Manager, as follows:
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(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Neither of the
Prospectuses nor any amendments or supplements thereto, at the time the
Prospectuses or any such amendments or supplements thereto were issued
and at the Closing Time (and, if any Option Securities are purchased,
at the Date of Delivery), included or will include an untrue statement
of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434
is used, the Company will comply with the requirements of Rule 434 and
the Prospectuses shall not be "materially different", as such term is
used in Rule 434, from the prospectuses included in the Registration
Statement at the time it became effective. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or International Prospectus
made in reliance upon and in conformity with information furnished to
the Company in writing by or on behalf of any International Manager
through the Lead Managers expressly for use in the Registration
Statement or International Prospectus.
Each preliminary prospectus and the prospectuses filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and each preliminary
prospectus and the International Prospectus delivered to the
International Managers 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.
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(ii) 1934 ACT REPORTS. The Company has filed with the
Commission all reports required to be filed under the Securities
Exchange Act of 1934 (the "1934 ACT"), and complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 ACT
REGULATIONS"), as applicable, and, when read together with the
information in the Prospectuses, at the time the Registration Statement
became effective, at the time the Prospectuses were issued and at the
Closing Time (and if any Option Securities are purchased, at the Date
of Delivery), such reports did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
(iii) INDEPENDENT ACCOUNTANTS. The accountants who
certified the financial statements and supporting schedules included in
the Registration Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements
included in the Registration Statement and the Prospectuses, together
with the related schedules and notes, present fairly the financial
position of the entities to which they relate as of the dates indicated
and their respective results of operations, stockholders' equity and
cash flows for the periods specified; said financial statements have
been prepared in conformity with (A) generally accepted accounting
principles under International Accounting Standards ("IAS GAAP") (in
the case of the financial statements of the Company and its
subsidiaries and those of the Acquired MIH Businesses (as such term is
used in the Prospectuses)), (B) generally accepted accounting
principles in Thailand ("THAI GAAP") (in the case of United
Broadcasting Corporation Public Company Limited and its subsidiaries)
and (C) generally accepted accounting principles in the United States
("U.S. GAAP") (in the case of Spyglass, Inc.), in each case applied on
a consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present
fairly in accordance with IAS GAAP, Thai GAAP or U.S. GAAP, as
applicable, the information required to be stated therein. The selected
financial data and the summary financial information included in the
Prospectuses present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement.
(v) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the
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Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business (a "MATERIAL ADVERSE
EFFECT"), (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary
course of business, that are material with respect to the Company and
its subsidiaries considered as one enterprise and (C) there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the British Virgin Islands and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectuses and to enter into
and perform its obligations under this Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing would not, singly or in the aggregate, result in a
Material Adverse Effect.
(vii) GOOD STANDING OF SUBSIDIARIES. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) and all entities in which the Company has a direct or
indirect majority equity interest or voting power (each a "SUBSIDIARY"
and, collectively, the "SUBSIDIARIES") has been duly organized and is
validly existing as a corporation, general partnership, limited
partnership, limited liability company or similar entity in good
standing (to the extent applicable) under the laws of the jurisdiction
of its organization, has organizational power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectuses and is duly qualified as a foreign
corporation (or other such entity) to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not, singly or in the aggregate, result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding shares of
capital stock or other ownership interests of each Subsidiary have been
duly authorized and validly issued, are fully paid and non-assessable
(to the extent applicable) and to the extent owned, directly or
indirectly, by the Company, are owned free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. None of
the outstanding shares of capital stock or other ownership interests of
any Subsidiary was issued in violation of the preemptive or similar
rights of any securityholder of such Subsidiary. The only subsidiaries
of the Company are (a) the subsidiaries listed on Exhibit 21 to the
Registration Statement and (b) certain other subsidiaries which,
considered in the
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aggregate as a single Subsidiary, do not constitute a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X.
(viii) CAPITALIZATION. The authorized, issued and
outstanding capital stock of the Company is as set forth in the
Prospectuses in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances, if any, pursuant to
this Agreement, pursuant to agreements or employee benefit plans
referred to in the Prospectuses or pursuant to the exercise of
convertible securities or options referred to in the Prospectuses). The
shares of issued and outstanding capital stock of the Company have been
duly authorized and validly issued and are fully paid and
non-assessable. None of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
(ix) COMPANY AUTHORIZATION OF AGREEMENT. The execution,
delivery and performance of this Agreement and the U.S. Purchase
Agreement have been duly authorized by all requisite corporate action
on the part of the Company. This Agreement and the U.S. Purchase
Agreement have been duly executed and delivered by the Company.
(x) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The
Securities to be purchased by the International Managers and the U.S.
Underwriters from the Company have been duly authorized for issuance
and sale to the International Managers pursuant to this Agreement and
the U.S. Underwriters pursuant to the U.S. Purchase Agreement,
respectively, and, when issued and delivered by the Company pursuant to
this Agreement and the U.S. Purchase Agreement, respectively, against
payment of the consideration set forth herein and in the U.S. Purchase
Agreement, respectively, will be validly issued, fully paid and
non-assessable. The Class A Ordinary Shares conform in all material
respects to all statements relating thereto contained in the
Prospectuses and such description conforms to the rights set forth in
the instruments defining the same. No holder of the Securities will be
subject to personal liability by reason of being such a holder and the
issuance of the Securities is not subject to the preemptive or other
similar rights of any securityholder of the Company.
(xi) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the
Company nor any Venture (as defined below) is in violation of its
charter or by-laws (or equivalent constitutive documents) or in default
in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of
trust, loan or 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,
8
"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 U.S.
Purchase Agreement and the consummation of the transactions
contemplated in this Agreement, the U.S. 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 U.S. Purchase Agreement have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
Venture pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not, singly or in the aggregate, result in a Material Adverse
Effect), nor will such action result in any violation of the provisions
of the charter or by-laws (or equivalent constitutive documents) of the
Company or any Venture or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Venture or any of their assets,
properties or operations. As used herein, (a) "VENTURE" means any
entity in which the Company has a direct or indirect greater than 20%
equity interest or voting power and (b) a "REPAYMENT EVENT" means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any Venture.
(xii) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Company or any Venture exists or, to the knowledge of
the Company, is threatened, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any Venture's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to,
singly or in the aggregate, result in a Material Adverse Effect.
(xiii) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any Venture, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might, singly or in the aggregate, reasonably be expected to result in
a Material Adverse Effect, or which (other than as disclosed in the
Registration Statement), singly or in the aggregate, may
9
reasonably be expected to materially and adversely affect the
properties or assets of the Company or any Venture or the consummation
of the transactions contemplated in this Agreement and the U.S.
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.
(xiv) ACCURACY OF EXHIBITS. There are no contracts or
documents which are required to be described in the Registration
Statement or the Prospectuses or to be filed as exhibits thereto which
have not been so described and filed as required.
(xv) POSSESSION OF INTELLECTUAL PROPERTY. The Company and
the Ventures own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "INTELLECTUAL PROPERTY") necessary
to carry on the business now operated by them, and neither the Company
nor any Venture has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect
to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any Venture therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xvi) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations under this Agreement and the U.S. Purchase Agreement,
in connection with the offering, issuance or sale of the Securities
under this Agreement and the U.S. Purchase Agreement or the
consummation of the transactions contemplated by this Agreement and the
U.S. Purchase Agreement, except such as have been already obtained and
are in full force and effect or as may be required (i) under the 1933
Act or the 1933 Act Regulations or state securities laws or (ii) under
the laws and regulations of jurisdictions outside of the United States
and Canada where the International Managers may offer and sell the
International Securities.
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(xvii) POSSESSION OF LICENSES AND PERMITS. Except as
otherwise disclosed in the Registration Statement, the Company and the
Ventures possess such permits, licenses, approvals, consents and other
authorizations (collectively, "GOVERNMENTAL LICENSES") issued by the
appropriate national, provincial, state or local regulatory agencies or
bodies necessary to conduct the business now operated by them. The
Company and the Ventures are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, result in a
Material Adverse Effect. All of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not, singly or in the aggregate,
result in a Material Adverse Effect. Neither the Company nor any
Venture has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xviii) TITLE TO PROPERTY. The Company and the Ventures have
good and marketable title to all real property owned by the Company and
the Ventures and good title to all other properties owned by them, in
each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (A) are described in the Prospectuses or (B) do not, singly or in
the aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company or any Venture. All of the leases and subleases material to
the business of the Company and the Ventures, considered as one
enterprise, and under which the Company or any Venture holds properties
described in the Prospectuses, are in full force and effect, and
neither the Company nor any Venture has any notice of any material
claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any Venture under any of the leases or
subleases mentioned above, or affecting or questioning the rights of
the Company or such Venture to the continued possession of the leased
or subleased premises under any such lease or sublease.
(xix) COMPLIANCE WITH RESEARCH GUIDELINES. The Company,
directly or indirectly, has not taken and will not take any action that
is inconsistent with the guidelines set forth in the memorandum dated
March 1, 2000 of Xxxxxxx Xxxxxxx & Xxxxxxxx relating to research
reports, and, without limiting the foregoing, has not distributed and
will not distribute, in any manner, any research reports contemplated
by such research guidelines or any portion thereof other than in
conformity with such research guidelines.
11
(xx) INVESTMENT COMPANY ACT. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectuses will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 ACT").
(xxi) ENVIRONMENTAL LAWS. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any Venture is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "HAZARDOUS MATERIALS") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "ENVIRONMENTAL
LAWS"), (B) the Company and the Ventures have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any Venture
and (D) there are no events or circumstances that might reasonably be
expected to form the basis of an order for clean-up or remediation, or
an action, suit or proceeding by any private party or governmental body
or agency, against or affecting the Company or any Venture relating to
Hazardous Materials or any Environmental Laws.
(xxii) REGISTRATION RIGHTS. Except as disclosed in the
Prospectuses, there are no persons with registration rights or other
similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the
1933 Act.
(xxiii) PASSIVE FOREIGN INVESTMENT COMPANY. The Company,
based on its current operations and assets and taking into
consideration the proceeds of the offering, to the best of its
knowledge believes that it is not a passive foreign investment company
(a "PFIC") within the meaning of Section 1219 et seq. of the United
States Internal Revenue Code of 1986, as amended (the "Code"), and does
not expect to become a PFIC.
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(xxiv) PASSIVE FOREIGN HOLDING COMPANY. The Company, to the
best of its knowledge, believes that it is not a foreign personal
holding company (a "FPHC") within the meaning of Section 551 et seq. of
the Code.
(xxv) STATISTICAL AND MARKET-RELATED DATA. The statistical and
market-related data included in the Prospectuses are based on or
derived from sources that the Company believes to be reliable and
accurate in all material respects or represent the Company's good faith
estimates that are made on the basis of data derived from such sources.
(xxvi) JOHANNESBURG STOCK EXCHANGE. All authorizations,
approvals, consents, qualifications or decrees of the Johannesburg
Stock Exchange that are necessary or required for the performance by
the Company of its obligations hereunder have been obtained.
(xxvii) ABSENCE OF MANIPULATION. The Company has not taken,
and will not take, directly or indirectly, any action which is designed
to or which has constituted or which might reasonably be expected to
cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(b) OFFICERS' CERTIFICATES. Any certificate signed by any officer of
the Company or any Ventures delivered to the Global Coordinator, the Lead
Managers or to counsel for the International Managers shall be deemed a
representation and warranty by the Company to each International Manager as to
the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO INTERNATIONAL MANAGERS; CLOSING
(a) INITIAL SECURITIES. The Company agrees to sell to each
International Manager, 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 International Manager, severally and not
jointly, agrees to purchase from the Company, at the price per share set forth
in SCHEDULE C, the number of Initial International Securities set forth in
SCHEDULE A opposite the name of such International Manager, plus any additional
number of Initial International Securities which such International Manager 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 International Managers, severally and not jointly, to purchase up
to an additional 480,000 Class A Ordinary Shares at the price per share set
forth in SCHEDULE C, less an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial International
Securities but not payable on the International Option Securities. The option
13
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 International Securities upon notice by the Global
Coordinator to the Company setting forth the number of International Option
Securities as to which the several International Managers are then exercising
the option and the time and date of payment and delivery for such International
Option Securities. Any such time and date of delivery for the International
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
International Option Securities, each of the International Managers, 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 International Option
Securities then being purchased which the number of Initial International
Securities set forth in SCHEDULE A opposite the name of such International
Manager bears to the total number of Initial International Securities, subject
in each case to such adjustments as the Global Coordinator in its discretion
shall make to eliminate any sales or purchases of fractional shares.
(c) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Xxxxxxx
Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such
other place as shall be agreed upon by the Global Coordinator, the Company, at
10:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30
P.M. (Eastern time) on the date hereof) business day after the date hereof
(unless postponed in accordance with the provisions of Section 10), or such
other time not later than ten business days after such date as shall be agreed
upon by the Global Coordinator, 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 International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company on each Date
of Delivery as specified in the notice from the Global Coordinator to the
Company.
Payment shall be made to the Company by wire transfer of U.S. dollars
in immediately available funds to a bank account designated by the Company
against delivery to the Lead Managers for the respective accounts of the
International Managers of certificates for the International Securities to be
purchased by them. It is understood that each International Manager has
authorized the Lead Managers, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Initial International
Securities and the International
14
Option Securities, if any, which it has agreed to purchase. Xxxxxxx Xxxxx,
individually and not as representative of the International Managers, may (but
shall not be obligated to) make payment of the purchase price for the Initial
International Securities or the International Option Securities, if any, to be
purchased by any International Manager 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 International Manager from its obligations
hereunder.
(d) DENOMINATIONS; REGISTRATION. Certificates for the Initial
International Securities and the International Option Securities, if any, shall
be in such denominations and registered in such names as the Lead Managers 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
International Securities and the International Option Securities, if any, will
be made available for examination and packaging by the Lead Managers in The City
of New York not later than 10:00 A.M. (Eastern time) on the business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
International Manager 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.
15
(b) FILING OF AMENDMENTS. The Company will give the Global
Coordinator notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term Sheet
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the
Prospectuses, will furnish the Global Coordinator with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which the Global
Coordinator or counsel for the International Managers shall object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished
or will deliver to the Lead Managers and counsel for the International Managers,
without charge, signed copies of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Lead Managers, upon
request from the Lead Managers, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the International Managers. The copies of the
Registration Statement and each amendment thereto furnished to the International
Managers 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
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager 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 International Manager, without charge,
during the period when the International Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the International
Prospectus (as amended or supplemented) as such International Manager may
reasonably request. The International Prospectus and any amendments or
supplements thereto furnished to the International Managers will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will
comply with the 1933 Act and the 1933 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement, the U.S. 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
16
the International Managers 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
International Managers such number of copies of such amendment or supplement as
the International Managers may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best
efforts, in cooperation with the International Managers, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions 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 and any Rule
462(b) Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement.
(g) RULE 158. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) USE OF PROCEEDS. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified in the
Prospectuses under "USE OF PROCEEDS."
(i) RESTRICTION ON SALE OF SECURITIES. During a period of 180 days
from the date of the Prospectuses, the Company will not, without the prior
written consent of
17
Xxxxxxx Xxxxx, (i) directly or indirectly, offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of any Class A Ordinary Shares or any securities convertible into or
exercisable or exchangeable for Class A Ordinary Shares (including, without
limitation, the Class B Ordinary Shares, no par value, of the Company) or file
any registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Class A Ordinary Shares, whether any such swap
or transaction described in clause (i) or (ii) above is to be settled by
delivery of Class A Ordinary Shares or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Securities to be
sold hereunder or under the U.S. Purchase Agreement, (B) the issuance of any
Class A Ordinary Shares by the Company upon the exercise of options or warrants
or the conversion of securities outstanding on the date hereof and referred to
in the Prospectuses; or (C) the filing by the Company of a registration
statement solely to register shares of Thomson Consumer Electronics, Inc., a
shareholder of the Company, as disclosed in the Registration Statement.
(j) REPORTING REQUIREMENTS. The Company, during the period when
the Prospectuses are required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods referred to therein.
SECTION 4. PAYMENT OF EXPENSES.
(a) EXPENSES. The Company will pay all expenses incident to the
performance of their respective obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, issuance and delivery of the
certificates for the Securities to the International Managers, 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 International Managers
and the transfer of the Securities between the International Managers and the
U.S. Underwriters, (iii) the fees and disbursements of the Company's counsel,
accountants and other advisors, (iv) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(f)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the International Managers in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (v) the printing and delivery to the International Managers of
copies of each preliminary prospectus, any Term Sheets and of the
Prospectuses and any amendments or supplements thereto, (vi) the preparation,
printing and delivery to the International Managers of copies of the Blue Sky
Survey
18
and any supplement thereto, (vii) the fees and expenses of any transfer
agent or registrar for the Securities, (viii) the filing fees incident to, and
the reasonable fees and disbursements of counsel to the International Managers
in connection with, the review by the National Association of Securities
Dealers, Inc. (the "NASD") of the terms of the sale of the Securities and (ix)
the fees and expenses incurred in connection with the inclusion of the
Securities in the Nasdaq National Market and the Amsterdam Stock Exchange.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by
the Lead Managers in accordance with the provisions of Section 5 hereof (other
than in accordance with paragraph (l) as a result of the failure of the U.S.
Underwriters to comply with their obligations under the U.S. Purchase Agreement)
or Section 9(a)(i) hereof, the Company shall reimburse the International
Managers for all of their out-of-pocket expenses incurred by the International
Managers 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 International Managers.
SECTION 5. CONDITIONS OF INTERNATIONAL MANAGERS' OBLIGATIONS. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, shall have become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the International Managers. 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 Lead
Managers shall have received the favorable opinion, dated as of the date on
which the Closing Time occurs, of (i) Cravath, Swaine & Xxxxx, counsel for the
Company, (ii) Xxxxxx Westwood & Riegels, special British Virgin Islands counsel
for the Company, (iii) Xxxxx Dutilh, special Dutch counsel for the Company, (iv)
Xxxxx Xxxxx, Esq., group general counsel of the Company (as to South
19
African matters), (v) Socrates Loizedes, special Greek counsel for the Company
and (vi) Xxxxx & Xxxxx, special Thai counsel for the Company, each in form and
substance satisfactory to counsel for the International Managers together with
signed or reproduced copies of such letter for each of the other International
Managers, to the effect set forth in Exhibits A-1 through A-6 hereto,
respectively.
(c) OPINION OF COUNSEL FOR THE INTERNATIONAL MANAGERS. At Closing
Time, the Lead Managers shall have received the favorable opinion, dated as of
Closing Time, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the International
Managers, Linklaters & Alliance, special Thai counsel for the International
Managers, Xxxxx & Wood, special Thai counsel for the International Managers, and
O'Xxxx Xxxxxxx X'Xxxx Xxxxx Xxxxxxxx & Xxxxxx, special British Virgin Islands
counsel for the International Managers, together with signed or reproduced
copies of such letter for each of the other International Managers as to such
matters as are reasonably requested by the Lead Managers.
(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
Lead Managers shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of the date on which the Closing Time occurs, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct with
the same force and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to Closing Time, and (iv)
no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
pending or are contemplated by the Commission.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of
this Agreement, the Lead Managers shall have received (i) from
PricewaterhouseCoopers Inc. a letter dated such date, in form and substance
satisfactory to the Lead Managers, together with signed or reproduced copies of
such letter for each of the other International Managers containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectuses and (ii) from Ernst & Young LLP a letter in form and substance
acceptable to the Lead Managers describing certain procedures followed with
respect to certain financial information contained in the Registration
Statement.
20
(f) BRING-DOWN COMFORT LETTER. At Closing Time, the Lead Managers
shall have received from PricewaterhouseCoopers Inc. a letter, dated as of the
date on which the Closing Time occurs, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (g) of this
Section, except that the specified date referred to shall be a date not more
than three business days prior to the date on which the Closing Time occurs.
(g) APPROVAL OF LISTING. At Closing Time, the Securities shall
have been approved for listing on the Amsterdam Stock Exchange and shall have
been approved for inclusion in the Nasdaq National Market, in each case, subject
only to official notice of issuance.
(h) NO OBJECTION. The NASD shall have confirmed that it has not
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(i) LOCK-UP AGREEMENTS. At the date of this Agreement, the Lead
Managers shall have received an agreement substantially in the form of Exhibit C
hereto signed by the persons listed on Schedule D hereto.
(j) PURCHASE OF INITIAL INTERNATIONAL SECURITIES.
Contemporaneously with the purchase by the International Managers of the Initial
International. Securities under this Agreement, the U.S. Underwriters shall have
purchased the Initial U.S. Securities under the U.S. Purchase Agreement.
(k) CONDITIONS TO PURCHASE OF INTERNATIONAL OPTION SECURITIES In
the event that the International Managers exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the International Option
Securities, the representations and warranties of the Company contained herein
and the statements in any certificates furnished by the Company or any
subsidiary of the Company hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Lead Managers shall have
received:
(i) OFFICERS' CERTIFICATE. A certificate, dated such Date
of Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(e) hereof remains true and correct as of such Date of
Delivery.
(ii) OPINION OF COUNSEL FOR COMPANY. The favorable opinion
of (i) Cravath, Swaine & Xxxxx, counsel for the Company, together with
the favorable opinion of (ii) Xxxxxx Westwood & Riegels, special
British Virgin Islands counsel for the Company, (iii) Xxxxx Dutilh,
special Dutch counsel for the Company, (iv) Xxxxx
21
Tudor, Esq., group general counsel of the Company (as to South African
matters), (v) Socrates Loizedes, special Greek counsel for the Company
and (vi) Xxxxx & Xxxxx, special Thai counsel for the Company each in
form and substance satisfactory to counsel for the International
Managers, dated such Date of Delivery, relating to the International
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 INTERNATIONAL MANAGERS. The
favorable opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
International Managers, Linklaters & Alliance, special Thai counsel for
the International Managers, Xxxxx & Wood, special Thai counsel for the
Lead Managers, and O'Xxxx Xxxxxxx X'Xxxx Xxxxx Xxxxxxxx & Xxxxxx,
special British Virgin Islands counsel for the International Managers,
dated such Date of Delivery, relating to the International Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(d) hereof.
(iv) BRING-DOWN COMFORT LETTER. A letter from
PricewaterhouseCoopers LLP, in form and substance satisfactory to the
Lead Managers and dated such Date of Delivery, substantially in the
same form and substance as the letter furnished to the Lead Managers
pursuant to Section 5(h) hereof, except that the "specified date" in
the letter furnished pursuant to this paragraph shall be a date not
more than five days prior to such Date of Delivery.
(l) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of
Delivery, counsel for the International Managers shall have been furnished with
such documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in form and
substance to the Lead Managers and counsel for the International Managers.
(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 International
Option Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the several International Managers to purchase the relevant
Option Securities, may be terminated by the Lead Managers 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
22
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 INTERNATIONAL MANAGERS BY COMPANY. The
Company agrees to indemnify and hold harmless each International Manager and
each person, if any, who controls each International Manager 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, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; PROVIDED,
that (subject to Section 6(e) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the Lead
Managers), 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
23
furnished to the Company by any International Manager through the Lead Managers
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 International Prospectus (or
any amendment or supplement thereto).
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each
International Manager severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) or (b), as the case may be, of this Section, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment or
supplement thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary International prospectus or the
International Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by such
International Manager through the Lead Managers expressly for use in the
Registration Statement (or any amendment or supplement thereto) or such
preliminary prospectus or the International. 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)
or 6(b) above, counsel to the indemnified parties shall be selected by the Lead
Managers, and, in the case of parties indemnified pursuant to Section 6(c)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; PROVIDED, HOWEVER, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof
24
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a) or 6(b) effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the International Managers 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
International Managers 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
International Managers on the other hand in connection with the offering of the
International 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
International Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
International Managers, in each case as set forth on the cover of the
International Prospectus, or, if Rule 434 is used, the corresponding location on
the Term Sheet, bear to the aggregate initial public offering price of the
International Securities as set forth on such cover.
The relative fault of the Company on the one hand and the International
Managers on the other hand shall be determined by reference to, among other
things, whether any such untrue or
25
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
International Managers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the International Managers 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 International Managers were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the International Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such International Manager has otherwise been required to pay
by reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager 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
International Manager, 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 International Managers' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Initial International
Securities set forth opposite their respective names in SCHEDULE A hereto and
not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain
26
operative and in full force and effect, regardless of any investigation made by
or on behalf of any International Manager or controlling person, or by or on
behalf of the Company, and shall survive delivery of the Securities to the
International Managers.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Lead Managers 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 Lead
Managers, impracticable to market the Securities or to enforce contracts for the
sale of the Securities, or (iii) if trading in any securities of the Company has
been suspended or materially limited by the Commission, the Amsterdam Stock
Exchange or the Nasdaq National Market, or if trading generally on the New York
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the NASD or any other governmental authority, or
(iv) if a banking moratorium has been declared by South African, Dutch, United
States Federal or New York authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE INTERNATIONAL MANAGERS. If
one or more of the International Managers 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 Lead Managers
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting International Managers, or any other underwriters,
to purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if, however,
the Lead Managers shall not have completed such arrangements within such 24-hour
period, then:
27
(a) if the number of Defaulted Securities does not exceed 10%
of the number of International Securities to be purchased on such
date, each of the non-defaulting International Managers 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 International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of International 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 International Managers
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 International Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager 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
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either (i) the Lead
Managers or (ii) the Company shall have the right to postpone Closing Time or
the relevant Date of Delivery, as the case may be, for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements. As used herein, the
term "International Manager" includes any person substituted for an
International Manager under this Section 10.
SECTION 11. DEFAULT BY THE COMPANY. If the Company shall fail at
Closing Time or at the Date of Delivery to sell the number of Securities that it
is obligated to sell hereunder, then this Agreement shall terminate without any
liability on the part of any nondefaulting party; PROVIDED, HOWEVER, that the
provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect.
No action taken pursuant to this Section shall relieve the Company from
liability, if any, in respect of such default.
SECTION 12. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Managers c/o Merrill Xxxxx
& Co., Xxxxxxx Xxxxx Xxxxxx, Xxxxxx & Xxxxx Incorporated at North Tower, World
Financial Center, New York, New York 10281-1201, attention of Investment
Banking; and notices to the Company shall be directed to it at Myriad
International Holdings
28
B.V., Jupiterstraat 13-15, 2132 HC Hoofddorp, The Netherlands, attention of
Group Director Corporate Finance.
SECTION 13. PARTIES. This Agreement shall each inure to the benefit of
and be binding upon the International Managers 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 International Managers 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 International Managers 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 International Manager shall be deemed to be a successor by reason merely of
such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICT OF LAWS. SPECIFIED TIMES OF
DAY REFER TO NEW YORK CITY TIME.
SECTION 15. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES. By the execution and delivery of this Agreement, the Company (i)
acknowledges that it has, by separate written instrument, designated and
appointed CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (and
any successor entity), as its authorized agent upon which process may be served
in any suit or proceeding arising out of or relating to this Agreement that may
be instituted in any Federal or state court in the Borough of Manhattan, City of
New York, State of New York, or brought under the United States Federal or state
securities laws, and acknowledge that CT Corporation System has accepted such
designation, (ii) submits to the non-exclusive jurisdiction of any such court in
any such suit or proceeding and (iii) agrees that service of process upon CT
Corporation System and written notice of said service to the Company in
accordance with Section 12 shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding. The Company further
agree 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 Lead Managers, designate
such additional or alternative agent for service of process under this Section
15 that (i) maintains an office located in the Borough of Manhattan, City of New
York, in the
00
Xxxxx xx Xxx Xxxx 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 respective
properties, assets or revenues may or may hereafter become entitled to, or have
attributed to the Company, any right of immunity, on the grounds of sovereignty
or otherwise, from any legal action, suit or proceeding, from the giving of any
relief in any such legal action, suit or proceeding, from setoff or
counterclaim, from the jurisdiction of any New York or U.S. Federal court, from
service of process, from attachment upon or prior to judgment, from attachment
in aid of execution of judgment, or from execution of judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement of any
judgment, in any such court in which proceedings may at any time be commenced,
with respect to the obligations and liabilities of the Company, or any other
matter under or arising out of or in connection with this Agreement or the U.S.
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 16. JUDGMENT CURRENCY. The Company agrees to indemnify each
International Manager and each person, if any, who controls any International
Manager within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, against any loss incurred by such party as a result of any judgment or
order being given or made against the Company for any U.S. dollar amount due
under this Agreement and such judgment or order being expressed and paid in a
currency (the "JUDGMENT CURRENCY") other than United States dollars and as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the Judgment Currency for the purpose of
such judgment or order and (ii) the spot rate of exchange in The City of New
York at which such party on the date of payment of such judgment or order is
able to purchase United States dollars with the amount of the Judgment Currency
actually received by such party if such party had utilized such amount of
Judgment Currency to purchase United States dollars as promptly as practicable
upon such party's receipt thereof. The foregoing indemnity shall continue in
full force and effect notwithstanding any such judgment or order as aforesaid.
The term "spot rate of exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, United
States dollars.
SECTION 17. EFFECT OF HEADINGS. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
30
SECTION 18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
31
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 International Managers and the Company in accordance with its terms.
Very truly yours,
MIH LIMITED
By:
------------------------------------------
Name:
Title:
32
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX INTERNATIONAL
MEESPIERSON N.V.
By: XXXXXXX XXXXX INTERNATIONAL
By
-------------------------------
Authorized Signatory
For themselves and as Lead Managers of the other International Managers named in
Schedule A hereto.
SCHEDULE A
Name of International Manager Number of
----------------------------- Initial
International
-------------
Securities
-------------
Xxxxxxx Xxxxx International.......................... 3,040,000
MeesPierson N.V...................................... 160,000
-------------
Total................................................ 3,200,000
=============
SCHEDULE B
Number of Initial Maximum Number of Option
Securities to be Sold Securities to be Sold
-------------------- ----------------------
MIH Limited 3,200,000 480,000
Total.................... 3,200,000 480,000
SCHEDULE C
MIH LIMITED
3,200,000 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 International Securities to be paid by
the several International Managers 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 International 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 International Securities but
not payable on the International Option Securities.
SCHEDULE D
MIH (BVI) Limited
SuperSport International Holdings Limited
Naspers Limited
Exhibit A-1
FORM OF OPINION OF CRAVATH, SWAINE & XXXXX
TO BE DELIVERED PURSUANT TO
SECTION 5(b
(i) OpenTV has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectuses.
(ii) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act on [-];
any required filing of the Prospectuses pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b); and, to the best
of our knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
(iii) The information in the Prospectuses under "Shares
Eligible For Future Sale," "United States Federal Income Tax Consequences" to
the extent that it constitutes matters of U.S. law, summaries of U.S. legal
matters, or legal proceedings or legal conclusions of U.S. law, has been
reviewed by us and is correct in all material respects.
(iv) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the 1940
Act.
Nothing has come to our attention that would lead us to believe that
the Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable), (except for financial
statements and schedules and other financial data included therein or omitted
therefrom, as to which we need make no statement), at the time such Registration
Statement or any such amendment became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectuses or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included therein or omitted
therefrom, as to which we need make no statement), at the time the Prospectuses
were issued, at the time any such amended or supplemented prospectus was issued
or at the Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of British Virgin Islands, upon the
opinion of Xxxxxx Westwood & Riegels, special counsel to the Company (which
opinion shall be dated and furnished to the Representative(s) at the Closing
Time, shall be satisfactory in form and substance to counsel for the
Underwriters and shall expressly state that the Underwriters may rely on such
opinion as if it were addressed to them), provided that Cravath, Swaine & Xxxxx
shall state in their opinion that they believe that they and
the Underwriters are justified in relying upon such opinion, and (B), as to
matters of fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials. Such opinion shall not state that it is to be governed or qualified
by, or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991)
Exhibit A-2
FORM OF OPINION OF XXXXXX WESTWOOD & RIEGELS
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the British Virgin
Islands.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the Purchase
Agreements.
(iii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectuses in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the Purchase Agreements or pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectuses or pursuant to the
exercise of convertible securities or options referred to in the Prospectuses);
the shares of issued and outstanding capital stock of the Company, have been
duly authorized and validly issued and are fully paid and non-assessable; and
none of the outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any securityholder of the
Company.
(iv) The Securities to be purchased by the Underwriters from
the Company have been duly authorized for issuance and sale to the Underwriters
pursuant to the Purchase Agreements and, when issued and delivered by the
Company pursuant to the Purchase Agreements against payment of the consideration
set forth in the Purchase Agreements, will be validly issued and fully paid and
non-assessable and no holder of the Securities is or will be subject to personal
liability by reason of being such a holder.
(v) The issuance and sale of the Securities by the Company is
not subject to the preemptive or other similar rights of any securityholder of
the Company.
(vi) Each Subsidiary incorporated in the British Virgin
Islands (collectively, the "BVI Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the British
Virgin Islands, has the corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectuses and
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock of the
BVI Subsidiaries has been duly authorized and validly issued, is fully paid and
non-assessable and, to the best of our knowledge, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge,
lien, encumbrance, claim or equity; none of the outstanding shares of capital
stock of any of the BVI Subsidiaries was issued in violation of the preemptive
or similar rights of any securityholder of such BVI Subsidiary.
(vii) The Purchase Agreements have been duly authorized,
executed and delivered by the Company.
(viii) The form of certificate used to evidence the Class A
Ordinary Shares complies in all material respects with all applicable statutory
requirements and with any applicable requirements of the Memorandum of
Association and Articles of Association of the Company.
(ix) To the best of our knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation, to which the
Company or any subsidiary is a party, or to which the property of the Company or
any subsidiary is subject, before or brought by any court or governmental agency
or body, domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Purchase Agreements or the performance by the
Company of its obligations thereunder.
(x) The information set forth in the Prospectuses under
"Description of Capital Stock," "Risk Factors--Because we are a British Virgin
Islands company, you may have difficulty protecting your interests in respect of
decisions made by our board of directors," "Risk Factors--Because we are a
British Virgin Islands company, you may not be able to enforce judgments against
us that are obtained in U.S. courts," "Risk Factors--The anti-takeover
provisions contained in our charter could deter a change in control," "British
Virgin Islands Taxation" and in the Registration Statement under Item 14, to the
extent that they constitute a description of the laws and regulations of the
British Virgin Islands, or its respective agencies, authorities or other
governmental bodies, or documents, or proceedings or conclusions of British
Virgin Islands law, are correct in all material respects.
(xi) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court, or
governmental authority or agency of the British Virgin Islands is necessary or
required in connection with the due authorization, execution and delivery of the
Purchase Agreements or for the offering, issuance, sale or delivery of the
Securities.
(xii) The execution, delivery and performance of the Purchase
Agreements and the consummation of the transactions contemplated in the Purchase
Agreements and in the Registration Statement (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectuses under the caption "Use of Proceeds") and
compliance by the Company with its obligations under the Purchase Agreements do
not and will not result in any violation of the provisions of the Memorandum of
Association or Articles of Association of the Company or any of the BVI
Subsidiaries, or any applicable British Virgin Islands law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of the BVI Subsidiaries or any of their respective
properties, assets or operations.
(xiii) The conduct of the Company's business does not violate
the provisions of its Memorandum of Association or Articles of Association.
(xiv) The choice of New York law to govern the Purchase
Agreements constitutes a valid choice of law insofar as the law of the British
Virgin Islands is concerned. The submission by the Company to the non-exclusive
jurisdiction of any federal or state court sitting in New York County, New York
is a valid submission insofar as the law of the British Virgin Islands is
concerned.
(xv) To the best of our knowledge, there are no persons with
registration rights or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the Company
under the 0000 Xxx.
(xvi) Any final and conclusive monetary judgment for a
definite sum which is not subject to a stay of execution obtained against the
Company in the courts of the State of New York in respect of the Purchase
Agreements would be treated by the courts of the British Virgin Islands as a
cause of action in itself so that no retrial of the issues would be necessary.
Exhibit A-3
FORM OF OPINION OF XXXXX DUTILH
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. Each Subsidiary incorporated in The Netherlands (collectively, the
"Dutch Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of The
Netherlands.
2. Each of the Dutch Subsidiaries has the corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectuses and to enter into and perform its
obligations under the Purchase Agreements.
3. The shares of the issued and outstanding capital stock of the Dutch
Subsidiaries have been duly authorized and validly issued and are fully
paid and non-assessable; and to the best of our knowledge, are owned by
the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of the Dutch
Subsidiaries was issued in violation of the preemptive or other similar
rights of any securityholder of the Dutch Subsidiaries.
4. To the best of our knowledge, there are no statutes or regulations of
Netherlands law or rules or regulations relating to the admission of
securities to listing on the Amsterdam Stock Exchange ("ASE")
maintained by the Amsterdam Exchanges N.V. (the "AEX Rules") that are
required to be described in the Prospectuses that are not described as
required. The information set forth in the Prospectuses under
"Description of Capital Stock - Trading through ASAS," to the extent
that it constitutes a description of the AEX Rules, and of the laws and
regulations of The Netherlands, or its respective agencies, authorities
or other governmental bodies, is correct in all respects.
5. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency of The Netherlands is necessary or required in
connection with the due authorization, execution and delivery of the
Purchase Agreements or for the offering, issuance, sale or delivery of
the Securities in The Netherlands.
6. The execution, delivery and performance of the Purchase Agreements and
the consummation of the transactions contemplated by the Purchase
Agreements and in the Registration Statement (including the issuance
and sale of the Securities and the use of the proceeds from the sale of
the Securities as described in the Prospectuses under the caption "Use
of Proceeds") and compliance by the Company with its obligations under
the Purchase Agreements do not and will not result in the violation of
any applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to us, of any Netherlands government, government
instrumentality or court having jurisdiction over any of the Dutch
Subsidiaries or any of their respective properties, assets or
operations.
7. The information in the Prospectuses under "Certain Netherlands Tax
Consequences", to the extent that it constitutes matters of Netherlands
law, summaries of Netherlands legal matters, or proceedings or legal
conclusions of Netherlands law, has been reviewed by us and is correct
in all material respects.
Exhibit A-4
FORM OF OPINION OF COMPANY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. Each Subsidiary incorporated in South Africa (collectively, the "South
African Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of South
Africa.
2. Each of the South African Subsidiaries has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform
its obligations under the Purchase Agreements.
3. The shares of the issued and outstanding capital stock of the South
African Subsidiaries have been duly authorized and validly issued and
are fully paid and non-assessable; and to the best of our knowledge,
are owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; none of the outstanding shares of capital stock of the
South African Subsidiaries was issued in violation of the preemptive or
other similar rights of any securityholder of the South African
Subsidiaries.
4. The information in the Prospectuses under "Risk Factors--South African
exchange control regulations significantly restrict our ability to
receive cash distributions from our South African subsidiaries" and
"Regulation--South Africa," to the extent that it constitutes matters
of South African law, summaries of South African legal matters, or
legal proceedings or legal conclusions of South African law, has been
reviewed by us and is correct in all material respects.
5. To the best of our knowledge, there are no statutes or regulations
under South African law or the rules and regulations relating to the
admission of securities to listing on the Johannesburg Stock Exchange
(the "JSE Rules") to be described in the Prospectuses that are not
described as required.
6. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any South African court or
governmental authority or agency is necessary or required in connection
with the due authorization, execution and delivery of the Purchase
Agreements or for the offering, issuance, sale or delivery of the
Securities in South Africa. The South African Subsidiaries possess all
material governmental licenses necessary under South African law to
conduct the businesses now conducted by them in South Africa.
7. The execution, delivery and performance of the Purchase Agreements and
the consummation of the transactions contemplated by the Purchase
Agreements and in the
Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities
as described in the Prospectuses under the caption "Use of Proceeds")
and compliance by the Company with its obligations under the Purchase
Agreements do not and will not, whether with or without the giving of
notice or lapse of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined in Section 1(a)(xi) of
the Purchase Agreements) under or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of any
of the South African Subsidiaries pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any
other agreement or instrument, known to us, to which any South African
Subsidiary is a party or by which any of them may be bound, or to which
any of the property or assets of any South African Subsidiary is
subject (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a Material Adverse Effect),
nor will such action result in any violation of the provisions of the
charter or by-laws (or equivalent constitutive documents) of any South
African Subsidiary, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to us, of any South African
government, government instrumentality or court having jurisdiction
over any of the South African Subsidiaries or any of their respective
properties, assets or operations.
8. To the best of our knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which any South
African Subsidiary is a party, or to which the property of any South
African Subsidiary is subject, before or brought by any court or
governmental agency or body in South Africa which might reasonably be
expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in the Purchase Agreements or the performance by the
Company of its obligations thereunder.
9. The issuance and sale of the Securities is not subject to the
preemptive or other similar rights of any securityholder of any South
African Subsidiary.
10. Nothing has come to our attention that would lead us to believe that
the Prospectuses or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable) (except for
financial statements and schedules and other financial data included
therein or omitted therefrom, as to which we need make no statement),
at the time such Prospectuses or any such amendment became effective,
in relation to the South African Subsidiaries, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectuses or any amendment or
supplement thereto (except for financial statements and schedules and
other financial data included therein or omitted therefrom, as to which
we need make no statement), at the time the Prospectuses were issued,
at the time any such amended or supplemented prospectus was issued or
at the Closing Time, in relation to the South African Subsidiaries,
included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the
statement therein, in the light of the circumstances under which they
were made, not misleading.
Exhibit A-5
FORM OF OPINION OF SOCRATES LOIZEDES
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. Each Subsidiary incorporated in Greece or Cyprus (collectively, the
"Mediterranean Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation.
2. Each of the Mediterranean Subsidiaries has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform
its obligations under the Purchase Agreements.
3. The shares of the issued and outstanding capital stock of the
Mediterranean Subsidiaries have been duly authorized and validly issued
and are fully paid and non-assessable; and to the best of our
knowledge, are owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; none of the outstanding shares of capital
stock of the Mediterranean Subsidiaries was issued in violation of the
preemptive or other similar rights or any securityholder of the
Mediterranean Subsidiaries.
4. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any Greek or Cypriot court or
governmental authority or agency is necessary or required in connection
with the due authorization, execution and delivery of the Purchase
Agreements or for the offering, issuance, sale or delivery of the
Securities in Greece or Cyprus.
5. The information in the Prospectuses under "Business--Legal
Proceedings"and "Regulation--Greece," to the extent that it constitutes
matters of Greek law, summaries of Greek legal matters, or proceedings
or legal conclusions of Greek law, has been reviewed by us and is
correct in all material respects.
6. The execution, delivery and performance of the Purchase Agreements and
the consummation of the transactions contemplated by the Purchase
Agreements and in the Registration Statement (including the issuance
and sale of the Securities and the use of the proceeds from the sale of
the Securities as described in the Prospectuses under the caption "Use
of Proceeds") and compliance by the Company with its obligations under
the Purchase Agreements do not and will not, whether with or without
the giving of notice or lapse of time or both, result in any violation
of the provisions of the charter or by-laws (or equivalent constitutive
documents) of any Mediterranean Subsidiary, or any applicable law,
statute, rule, regulation, judgment, order, writ or decree, known to
us, of any Greek or Cypriot government, government instrumentality or
court having
jurisdiction over any of the Mediterranean Subsidiaries or any of their
respective properties, assets or operations.
7. To the best of our knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which any
Mediterranean Subsidiary is a party, or to which the property of any
Mediterranean Subsidiary is subject, before or brought by any court or
governmental agency or body in Greece or Cyprus which might reasonably
be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in the Purchase Agreements or the performance by the
Company of its obligations thereunder.
Exhibit A-6
FORM OF OPINION OF XXXXX & XXXXX (THAILAND)
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. Each Subsidiary incorporated in Thailand (collectively, the "Thai
Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Thailand.
2. Each of the Thai Subsidiaries has the corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectuses and to enter into and perform its
obligations under the Purchase Agreements.
3. The information in the Prospectuses under "Business--Legal Proceedings"
to cover IKSC litigation and "Regulation--Thailand," to the extent that
it constitutes Thai matters of law, summaries of Thai legal matters, or
proceedings or legal conclusions of Thai law, has been reviewed by us
and is correct in all material respects.
4. The shares of the issued and outstanding capital stock of the Thai
Subsidiaries are owned by the Company, directly or through
subsidiaries.
5. To the best of our knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which any Thai
Subsidiary is a party, or to which the property of any Thai Subsidiary
is subject, before or brought by any court or governmental agency or
body in Thailand which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in the Purchase
Agreements or the performance by the Company of its obligations
thereunder.
6. The Thai Subsidiaries each possesses all material governmental licenses
necessary to conduct the business now operated by it in Thailand.
Exhibit B
FORM OF OPINION OF COUNSEL FOR THE
TO BE DELIVERED PURSUANT TO SECTION 5(c)
i. [Please refer in your letter to the fact that Reserve Bank
will not approve an indemnity that is not capped.] No filing with, or consent,
approval, authorization, license, order, registration, qualification or decree
of, any court or governmental authority or agency, domestic or, to my knowledge,
foreign, (other than the issuance of the order of the Commission declaring the
Registration Statement effective and such authorizations, approvals or consents
as may be necessary under state securities laws, as to which we need express no
opinion) is necessary or required to be obtained by the in connection with the
execution and delivery of the Purchase Agreements for the performance by the of
its obligations under the Purchase Agreements, or in connection with the offer,
sale or delivery of the Securities.
ii. The Rationalization Agreement has been duly executed and
delivered by the and the Registered Holder and constitutes the legal, valid and
binding agreement of the and the Registered Holder and is enforceable under
South African law.
iii. The Purchase Agreements have been duly authorized,
executed and delivered by or on behalf of the .
iv. The execution, delivery and performance of the Purchase
Agreements and the sale and delivery of the Securities and the consummation of
the transactions contemplated in the Purchase Agreements and in the Registration
Statement and compliance by the with its obligations under the Purchase
Agreements have been duly authorized by all necessary action on the part of the
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 under or
result in the creation or imposition of any tax, lien, charge or encumbrance
upon the Securities or any property or assets of the pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, license,
lease or other instrument or agreement to which the is a party or by which it
may be bound, or to which any of the property or assets of the may be subject
nor will such action result in any violation of the provisions of the charter or
by-laws (or equivalent constitutive documents) of the , if applicable, or any
law, administrative regulation, judgment or order of any governmental agency or
body or any administrative or court decree having jurisdiction over the or any
of its properties.
v. To the best of our knowledge, the is the sole beneficial
owner of the Securities to be sold by it and holds the Securities free and clear
of any security interest, mortgage, pledge, lien, charge, claim, or encumbrance
of any kind, and has full corporate right, power and authority to sell, transfer
and deliver , or cause the delivery, of the Securities to be sold by it to the
International Managers and the U.S. Underwriters, and upon the delivery of such
Securities and payment of the purchase price therefor as herein contemplated,
assuming each International Manager and each U.S. Underwriter has no notice of
any adverse claim, each of the International
B-1
Managers and U.S. Underwriters will acquire all of the rights of the in the
Securities and will also acquire their respective interests in such Securities
free and clear of any adverse claim or encumbrance of any kind.
X-0
Xxxxxxx X
, 0000
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
North Tower
World Financial Center
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxx Xxxxxx of America
XXXXXXX XXXXX INTERNATIONAL
MEESPIERSON N.V.
c/o Merrill Xxxxx International
00 Xxxxxxxxx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Re: AGREEMENT NOT TO SELL OR OTHERWISE DISPOSE OF SECURITIES
OF MIH LIMITED.
Ladies and Gentlemen:
The undersigned understands that MIH Limited (the "Company")
proposes to file a registration statement on Form F-1 (the "Registration
Statement") with the United States Secu- rities and Exchange Commission in
connection with the offering (the "Offering") of ordinary shares ("Shares") of
the Company by the Company and a certain of the Company. The undersigned further
understands that the Company and a certain of the Company propose 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, the certain of the Company and
the Underwriters to enter into the Purchase Agreement and to proceed with the
Offering, the undersigned hereby agrees, that from the date hereof until the
date which is 180 days after the date of the Purchase Agreement, the undersigned
will not, without the prior written consent of Xxxxxxx Xxxxx International,
directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale of, or otherwise dispose of or
transfer (collectively, a "COVERED SALE") any Shares (other than any Shares
registered in the Offering) or any securities convertible into or exchangeable
or exercisable for any Shares, whether now owned or hereafter
B-3
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.
Sincerely,
Name of Securityholder:
---------------------------------
(Print)
Signature:
---------------------------------
Name:
Title:
(If not a natural person)
B-4
