EXHIBIT 10.18
CONSENT AGREEMENT
This Agreement is made on the 27th day of September 1997
BETWEEN:
1. United and Philips Communications B.V., with offices at Xxxx. Xxxxxxxxxxxx
000, 0000 XX, Xxxxxxxxx ("UPC");
2. US West International B.V. with offices at Xxxxxxxx 00, 0000 XX Xxxxxxxxx
("US West");
3. Philips Media B.V., with offices at Xxxxxxxxxxxxxxx 0, 0000 XX Xxxxxxxxx,
Xxx Xxxxxxxxxxx ("Philips Media");
4. United International Holdings, Inc. with offices at 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx X.X.X. ("UIH"); and
5. Joint Venture, Inc. with offices at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx, X.X.X. ("JVI")
hereinafter the "Parties", and each a "Party".
WITNESSETH:
WHEREAS, Philips Media's ultimate parent company, Philips Electronics N.V.
("Philips") and JVI's ultimate parent company, UIH, concluded a letter of intent
in February 1997 pursuant to which Philips will transfer its indirect, wholly-
owned, interest in UPC in such a manner that UIH will acquire 100% ownership and
control over all the shares of UPC (the "Philips Transaction");
WHEREAS, Philips and UIH have held discussions regarding the structuring of this
transaction, which have resulted in two alternatives: (i) Philips will receive
cash plus a possible deferred consideration ("Alternative I") or (ii) Philips
will receive cash plus preferred stock plus a possible deferred consideration
("Alternative I") or (ii) Philips will receive cash plus preferred stock plus a
possible deferred consideration ("Alternative II");
WHEREAS, UPC on behalf of Philips Media has requested that US West consents to
the Philips Transaction insofar as it concerns the indirect change of control
over X0000 Xxxxxxx X.X. ("X0000").
NOW, THEREFORE, the parties hereto agree as follows:
A. Philips, UIH, JVI and UPC represent and warrant that:
(1) if the Philips Transaction is completed using Alternative I, JVI will
own or control the voting rights of 100% of the issued share capital
of UPC and that neither Philips nor any other third party will have
any rights to acquire any
existing or new shares of UPC as a result of Alternative I;
(2) if the Philips Transaction is completed using Alternative II,
(i) JVI will own or control the voting rights of 100% of the issued
share capital of UPC and the Preferred Stock of UPC will either
be:
(a) held by Philips or one of its subsidiaries, or with third
parties who have acquired such shares in a Rule 144A
offering; and
(b) the voting of the Preferred Stock will be exercised via a
special purpose foundation ("Stichting") to be incorporated
for the sole purpose of administering and voting the
Preferred Stock, and that UIH will control the board of the
Stichting;
(ii) if Philips (or one of its subsidiaries) still owns the Preferred
Stock by December 1, 1997, the Philips voting rights vis-a-vis
UPC are reinstated on a 50/50 basis and if Philips (or one of its
subsidiaries) still owns the Preferred Stock on September 1, 1998
then Philips has the right to convert the Preferred Stock into
common stock of UPC, such that the original shareholder
relationship as it is in effect prior the date hereof between
Philips and UIH, will be restored;
(3) they will obtain the necessary consent from the Municipality of
Amsterdam to the Philips Transaction.
B. UIH, JVI and UPC represent and warrant that:
(1) JVI is wholly owned by UIH;
(2) JVI owns or controls the voting rights of 50% of the shares of UPC;
(3) UPC will and JVI will and UIH will procure that JVI will use its
voting rights to cause UPC to continue to adhere to the rights and
obligations of UPC under the joint venture agreement dated February
13, 1996 entered into between US West and XXX (xxx "X0000 Joint
Venture Agreement").
C. UIH and JVI represent and warrant that they have no current intention to
change the control of the Board of the Stichting, nor that they have any
obligation to change this control in the future and that they will comply
with the consent provisions in the A2000 Joint Venture Agreement should
they intend to do so.
D. Philips Media represents and warrants that:
(1) Philips Media is wholly owned by Philips;
(2) Philips Media Networks B.V. is wholly owned by Philips Media;
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(2) Philips Media Networks B.V. owns or controls the voting rights of 50%
of the shares of UPC.
E. US West and UPC agree that Clause 9.2(b) "Permitted Transfers to
Affiliates" of the A2000 Joint Venture Agreement shall be deleted upon
closing of the Philips Transaction and replaced by the following wording:
"9.2(b) UPC shall be entitled at any time to transfer all (but not less
than all) of its Joint Venture Interest to a legal entity incorporated in
an OECD Member Country, which is a subsidiary of United International
Holdings, Inc. or its successor company and in which United International
Holdings, Inc. or its successor company owns consolidated capital and
voting interests of more than 50%;"
F. On the basis that:
(1) the above representations and warranties are correct as at the date
hereof and will be correct when repeated at the closing of the Philips
Transaction;
(2) notice of which Alternative is to be used by UPC is given to US West at
least five (5) business days prior to the closing of the Philips
Transaction and such route is the one which is used;
US West consents to the transfer of Philips Media's interest in A2000 to
JVI as described in this Agreement, such consent only to take effect upon
the closing of the Philips Transaction using either Alternative I, or
Alternative II (whether or not the deferred consideration is given).
Nothing in this Agreement shall be construed as a consent from US West to
the granting of any pledge, encumbrance or other security interest over any
shares in A2000 Holding N.V.
G. This Agreement shall be governed by and construed in accordance with the
laws of The Netherlands.
H. Any dispute arising out of or in connection with this Agreement, including
any question regarding its existence, validity or termination, shall be
referred to and finally resolved by arbitration under the Rules of
Arbitration of the Nederlands Arbitrage Institut ("NAI"), which rules are
deemed to be incorporated by reference into this clause. Such dispute
shall be resolved by one arbitrator nominated by agreement of the Parties
within 30 days after the submission of a request for arbitration is
delivered to the NAI, or if the Parties cannot agree, the nomination of the
arbitrator shall be made in accordance with the Rules. The proceedings
shall, unless otherwise agreed between the Parties, be held in Amsterdam.
The English language shall be the official language for all purposes. The
Arbitrator shall be authorised to resolve the Parties' dispute. The
decision of the sole arbitrator shall be final and binding and shall be
enforceable in any court of competent jurisdiction and the Parties hereby
waive the objections to or claims of immunity in respect of such
enforcement.
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IN WITNESS WHEREOF this Agreement was duly executed by the Parties in four
counterparts on the date first above written
for and on behalf of
US WEST INTERNATIONAL B.V.
/s/ XXXXXXX XXXXXXXX
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By: Xxxxxxx Xxxxxxxx
Title:
for and on behalf of
UNITED AND PHILIPS COMMUNICATIONS B.V.
/s/ A.H.E. VAN VOSKUIJLEN /s/ X. XXXXXX-XXXXX
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By: A.H.E. van Voskuijlen X. Xxxxxx-Xxxxx
Title: Senior Managing Directors
for and on behalf of
XXXXXX MEDIA B.V.
/s/ X. XXXXXXXX
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By: X. Xxxxxxxx
Title: Attorney-in-fact
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