Exhibit 1.2
===============================================================================
MIH LIMITED
(a British Virgin Islands corporation)
5,200,000 Class A Ordinary Shares
INTERNATIONAL PURCHASE AGREEMENT
--------------------------------
Dated: April 17, 2000
===============================================================================
1
TABLE OF CONTENTS
INTERNATIONAL PURCHASE AGREEMENT......................................................................1
SECTION 1. Representations and Warranties............................................................3
(a) Representations and Warranties by the Company.............................................3
(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...........................................5
(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................................................7
(xii) Absence of Labor Dispute.........................................................8
(xiii) Absence of Proceedings...........................................................8
(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..........................................................10
(xxi) Environmental Laws..............................................................11
(xxii) Registration Rights.............................................................11
(xxiii) Passive Foreign Investment Company..............................................11
(xxiv) Passive Foreign Holding Company..................................................11
(xxv) Statistical and Market-Related Data...............................................12
(xxvi) Johannesburg Stock Exchange.....................................................12
(xxvii) Absence of Manipulation.........................................................12
(b) Representations and Warranties by the Selling Shareholder and the Parent.................12
(i) Accurate Disclosure.............................................................12
(ii) Ownership of Securities.........................................................12
(iii) Authorization of Agreements.....................................................13
(iv) Good and Marketable Title.......................................................13
2
(v) Due Execution of Power of Authority.............................................13
(vi) Absence of Manipulation.........................................................14
(vii) Absence of Further Requirements.................................................14
(viii) Restriction on Sale of Securities...............................................14
(ix) Certificates Suitable for Transfer..............................................14
(x) No Association with NASD........................................................14
(c) Officers' Certificates...................................................................15
SECTION 2............................................................................................15
(a) Initial Securities.......................................................................15
(b) Option Securities........................................................................15
(c) Payment. Payment........................................................................16
(d) Denominations; Registration..............................................................17
SECTION 3. Covenants of the Company.................................................................17
(a) Compliance with Securities Regulations and Commission Requests...........................17
(b) Filing of Amendments.....................................................................17
(c) Delivery of Registration Statements......................................................18
(d) Delivery of Prospectuses.................................................................18
(e) Continued Compliance with Securities Laws................................................18
(f) Blue Sky Qualifications..................................................................19
(g) Rule 158.................................................................................19
(h) Use of Proceeds..........................................................................19
(i) Restriction on Sale of Securities........................................................19
(j) Reporting Requirements...................................................................20
SECTION 4. Payment of Expenses......................................................................20
(a) Expenses.................................................................................20
(b) Expenses of the Selling Shareholder......................................................21
(c) Termination of Agreement.................................................................21
(d) Allocation of Expenses. .................................................................21
SECTION 5. Conditions of International Managers=Obligations.........................................21
(a) Effectiveness of Registration Statement..................................................21
(b) Opinion of Counsel for Company...........................................................22
(c) Opinion of Counsel for the Selling Shareholder...........................................22
(d) Opinion of Counsel for the International Managers........................................22
(e) Officers' Certificate....................................................................22
(f) Certificate of Selling Shareholder.......................................................23
3
(g) Accountant's Comfort Letter..............................................................23
(h) Bring-down Comfort Letter................................................................23
(i) Approval of Listing......................................................................23
(j) No Objection.............................................................................23
(k) Lock-up Agreements.......................................................................23
(l) Purchase of Initial International Securities.............................................24
(m) Conditions to Purchase of International Option Securities ..............................24
(i) Officers' Certificate...........................................................24
(ii) Opinion of Counsel for Company..................................................24
(iii) Opinion of Counsel for International Managers...................................24
(iv) Bring-down Comfort Letter.......................................................25
(n) Additional Documents.....................................................................25
(o) Termination of Agreement.................................................................25
SECTION 6. Indemnification..........................................................................25
(a) Indemnification of International Managers................................................25
(b) Indemnification of International Managers by Selling Shareholder.........................26
(c) Indemnification of Company, Directors and Officers and the Selling Shareholder...........27
(d) Actions Against Parties; Notification....................................................28
(e) Settlement Without Consent if Failure to Reimburse.......................................28
(f) Other Agreements with Respect to Indemnification.........................................29
SECTION 7. Contribution.............................................................................29
SECTION 8. Representations, Warranties and Agreements to Survive Delivery...........................30
SECTION 9. Termination of Agreement.................................................................30
(a) Termination; General.....................................................................31
(b) Liabilities..............................................................................31
SECTION 10. Default by One or More of the International Managers.....................................31
SECTION 11. Default by the Selling Shareholder or the Company........................................32
SECTION 12. Notices..................................................................................33
SECTION 13. Parties.................................................................................33
SECTION 14. GOVERNING LAW AND TIME..................................................................33
4
SECTION 15. Agent for Service; Submission to Jurisdiction; Waiver of Immunities. ........................33
SECTION 16. Judgment Currency.............................................................................34
SECTION 17. Effect of Headings............................................................................35
SECTION 18. Counterparts..................................................................................35
6
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 Opinion for the Selling Shareholder....................B-1
Exhibit C - Form of Lock-up Letter.........................................C-1
MIH LIMITED
(a British Virgin Islands corporation)
5,200,000 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"), Johnnies Strategic Investment
Holdings Limited, a company organized under the laws of South Africa and a
shareholder of the Company (the "Selling Shareholder") and, to the limited
extent provided herein, Johnnies Industrial Corporation Limited, a company
organized under the laws of South Africa (the "Parent") confirm their respective
agreements with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("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 sale by the Selling Shareholder 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 780,000 additional Class A Ordinary Shares to cover
over-allotments, if any. The aforesaid 5,200,000 Class A Ordinary Shares (the
"INITIAL INTERNATIONAL SECURITIES") to be purchased by the International
Managers and all or any part of the
2
780,000 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".
It is understood that the Company and the Selling Shareholder are
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 and the Selling
Shareholder of an aggregate of 1,300,000 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 195,000 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 neither the
Company nor the Selling Shareholder are 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 and the Selling Shareholder understand that the
International Managers propose to make a public offering of the International
Securities as soon as the Lead Managers deems 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
3
the 1933 Act Regulations, prepare and file a term sheet (a "TERM SHEET") in
accordance with the provisions of Rule 434 and Rule 424(b). Two forms of
prospectus are to be used in connection with the offering and sale of the
Securities: one relating to the 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
4
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:
(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
5
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(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.
6
(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 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
7
stock or other ownership interests of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of
such Subsidiary. The only subsidiaries of the Company are (a) the
subsidiaries listed on Exhibit 21 to the Registration Statement and (b)
certain other subsidiaries which, considered in the aggregate as a
single Subsidiary, do not constitute a "significant subsidiary" as
defined in Rule 1-02 of Regulation S-X.
(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, including the Securities to be purchased by the
International Managers from the Selling Shareholder, 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,
including the Securities to be purchased by the International Managers
from the Selling Shareholder, 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.
8
(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,
"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.
9
(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 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 International Purchase Agreement
or the performance by the Company of its obligations hereunder or
thereunder. The aggregate of all pending legal or governmental
proceedings to which the Company or any Venture is a party or of which
any of their respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business, singly or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect.
(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
10
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.
(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
11
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.
(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.
12
(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.
(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) REPRESENTATIONS AND WARRANTIES BY THE SELLING SHAREHOLDER AND THE
PARENT. The Selling Shareholder and, to the limited extent set forth below, the
Parent, represent and warrant to each International Manager as of the date
hereof and as of the Closing Time, and agrees with each International Manager as
follows:
(i) ACCURATE DISCLOSURE. The information about the Selling
Shareholder and its affiliates in the Registration Statement and under
the heading "Principal and Selling Shareholders" in the Prospectuses
does not contain, and neither the Prospectuses nor any amendments or
supplements thereto will contain, any untrue statement of a material
fact about the Selling Shareholders and its affiliates and neither the
Registration Statement nor the Prospectuses omits, and neither the
Prospectuses nor any amendments or supplements thereto will omit, to
state a material fact about the Selling Shareholder and its affiliates
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this paragraph do not
apply to statements in or omissions from the Prospectuses made in
reliance upon and in conformity with information relating to any
International Managers furnished to the Company in writing by
13
or on behalf of such International Manager through the Lead Managers
expressly for use therein; the Selling Shareholder is not prompted to
sell the Securities to be sold by the Selling Shareholder hereunder by
any information concerning the Company or any subsidiary of the Company
that is not set forth in the Prospectuses.
(ii) OWNERSHIP OF SECURITIES. The Parent represents, warrants
and covenants that (a) the Securities to be sold by the Selling
Shareholder hereunder and under the U.S. Purchase Agreement are
registered in the name of Johnnic (IOM) Limited, a wholly owned
subsidiary of the Parent (such subsidiary, the "Registered Holder") and
are beneficially owned by the Selling Shareholder, also a wholly owned
subsidiary of the Parent; (b) the transfer of beneficial ownership to
the Selling Shareholder took place pursuant to a rationalization
agreement which took effect on April 1, 2000; and (c) as a result of
such transfer, the Selling Shareholder has full right, power and
authority to transfer the Securities to be sold by it to the
International Managers under this Agreement and to the U.S.
Underwriters under the U.S. Purchase Agreement.
(iii) AUTHORIZATION OF AGREEMENTS. The Selling Shareholder has
the full right, power and authority to enter into this Agreement and
the U.S. Purchase Agreement and to sell, transfer and deliver, or cause
to be transferred and delivered, the Securities to be sold by the
Selling Shareholder hereunder and thereunder. The execution and
delivery of this Agreement and the U.S. Purchase Agreement and the sale
and delivery of the Securities to be sold by the Selling Shareholder
and the consummation of the transactions contemplated herein and
therein and compliance by the Selling Shareholder with its obligations
hereunder and thereunder have been duly authorized by the Selling
Shareholder and do not and will not conflict with or constitute a
breach of, or default under, or result, directly or indirectly, in the
creation or imposition of any tax, lien, charge or encumbrance upon the
Securities to be sold by the Selling Shareholder, pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other agreement or instrument to which the
Selling Shareholder is a party or by which the Selling Shareholder may
be bound, or to which any of the property or assets of the Selling
Shareholder is subject, nor will such action result in any violation of
the provisions of the charter or by-laws or other organizational
instrument of the Selling Shareholder, if applicable, or any applicable
treaty, law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Selling Shareholder or any of its
properties.
(iv) GOOD AND MARKETABLE TITLE. The Selling Shareholder is
and at the Closing Time will be 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 and at the Closing Time will have full
corporate right, power and authority to hold, sell, transfer and
deliver, or cause the delivery, of the Securities to be sold by it to
the International Managers; and upon the delivery of such Securities
and payment of the purchase
14
price therefor as herein contemplated, assuming each International
Manager has no notice of any adverse claim, each of the International
Managers will acquire all of the rights of the Selling Shareholder 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.
(v) DUE EXECUTION OF POWER OF AUTHORITY. The Parent has
caused to be duly delivered, in the form heretofore furnished to the
Lead Managers, a Power of Authority addressed to the custodian of the
Securities to be sold hereunder and under the U.S. Purchase Agreement,
duly executed by the Registered Holder, irrevocably instructing the
custodian to deliver the certificate representing the Securities to be
sold by the Selling Shareholder hereunder and thereunder to the
transfer agent and registrar for the Company (the "TRANSFER AGENT") no
later than 10:00 A.M. on Tuesday, April 18, 2000.
(vi) ABSENCE OF MANIPULATION. The Selling Shareholder 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. The Parent, on behalf of the Registered Holder,
certifies that the Registered Holder has also not taken, and will not
take, any such action.
(vii) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
consent, approval, authorization, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required in connection with the execution and
delivery of this Agreement or the U.S. Purchase Agreement for the
performance by the Selling Shareholder of its obligations under this
Agreement and the U.S. Purchase Agreement, or in connection with the
sale and delivery of the Securities by the Selling Shareholder under
this Agreement and the U.S. Purchase Agreement or the consummation of
the transactions by the Selling Shareholder contemplated by this
Agreement and the U.S. Purchase Agreement.
(viii) RESTRICTION ON SALE OF SECURITIES. During a period of
180 days from the date of the Prospectuses, the Selling Shareholder
will not, without the prior written consent of Xxxxxxx Xxxxx, (i)
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, any Class A Ordinary Shares or any securities
convertible into or exercisable or exchangeable for Class A Ordinary
Shares or file any registration statement under the 1933 Act with
respect to any of the foregoing or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the
Class A Ordinary Shares, whether any such swap or transaction described
in clause (i) or (ii) above is to be settled by delivery of Class A
Ordinary
15
Shares or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to the Securities to be sold hereunder.
(ix) CERTIFICATES SUITABLE FOR TRANSFER. Certificates for all
of the Securities to be sold by the Selling Shareholder pursuant to
this Agreement, in suitable form for transfer by delivery or
accompanied by duly executed instruments of transfer or assignment in
blank with signatures guaranteed, have been, or will be no later than
the close of business in New York on Tuesday, April 14, 2000 placed in
custody with the Transfer Agent with irrevocable conditional
instructions to deliver such Securities to the International Managers
pursuant to this Agreement.
(x) NO ASSOCIATION WITH NASD. Neither the Selling
Shareholder nor any of its affiliates directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with, or has any other association with (within the
meaning of Article I, Section 1(ee) of the By-laws of the National
Association of Securities Dealers, Inc.), any member firm of the
National Association of Securities Dealers, Inc.
(c) 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; and any certificate signed by the Selling
Shareholder as such and delivered to the Global Coordinator, Lead Managers or to
counsel for the International Managers pursuant to the terms of this Agreement
shall be deemed a representation and warranty by the Selling Shareholder to the
International Managers as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO INTERNATIONAL MANAGERS; CLOSING
(a) INITIAL SECURITIES. The Company and the Selling Shareholder agree
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 and the Selling Shareholder, 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. The Parent agrees to take any and all actions
necessary to effect, or to cause the Registered Holder and/or the Selling
Shareholder to effect, the sale by the Selling Shareholder described in this
Section 2(a), including without limitation issuing or causing the Registered
Holder or the Selling Shareholder, as the case may be, to issue such further
instructions, if any, required by the custodian or the Transfer Agent to effect
such sale. The Parent further agrees to cause the Registered Holder not
16
to take any action designed to, or which could reasonably be expected to, delay,
hinder or otherwise impede the sale described in this Section 2(a), including
without limitation asserting a claim to the Securities to be sold by the Selling
Shareholder adverse to that of the International Managers.
(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 780,000 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
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 and
the Selling Shareholder, 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 and the Selling
Shareholder (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
17
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 and the Selling Shareholder by
wire transfer of U.S. dollars in immediately available funds to a bank account
designated by the Company, on the one hand, and to a bank account designated by
the Selling Shareholder, on the other, in each case, 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
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
18
additional information and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was not, it
will promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give the Global Coordinator
notice of its intention to file or prepare any amendment to the Registration
Statement (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,
19
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 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.
20
(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 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 and the Selling Shareholder 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
21
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 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) EXPENSES OF THE SELLING SHAREHOLDER. The Selling Shareholder will
pay all expenses incident to the performance of its obligations under, and the
consummation of the transactions contemplated by this Agreement, including (i)
any stamp duties, capital duties and stock transfer taxes, if any, payable upon
the sale of the Securities to the International Managers, and their transfer
between the International Managers pursuant to an agreement between or among
such International Managers, and (ii) the fees and disbursements of its counsel
and accountants.
(c) 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 and the Selling Shareholder 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.
(d) ALLOCATION OF EXPENSES. The provisions of this Section shall not
affect any agreement that the Company and the Selling Shareholder may make for
the sharing of such costs and expenses.
22
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 and the Selling
Shareholder contained in Section 1 hereof or in certificates of any officer of
the Company or any subsidiary of the Company or on behalf of the Selling
Shareholder 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 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 SELLING SHAREHOLDER. At Closing Time,
the ead Managers shall have received the favorable opinion, dated as of Closing
time of Xxxxxx, Xxxxxxx Xxxxxx, counsel for the Selling Shareholder, 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 Exhibit B hereto.
(d) 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 &
23
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.
(e) 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.
(f) CERTIFICATE OF SELLING SHAREHOLDER. At Closing Time, the Lead
Managers shall have received a certificate of the Selling Shareholder, dated as
of the date on which the Closing Time occurs, to the effect that (i) the
representations and warranties of the Selling Shareholder contained in Section
1(b) hereof are true and correct in all respects with the same force and effect
as through expressly made at and as of Closing Time and (ii) the Selling
Shareholder has complied in all material respects with all agreements and all
conditions on its part to be performed under this Agreement at or prior to
Closing Time.
(g) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of this
Agreement, the Lead Managers shall have received from PricewaterhouseCoopers LLP
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.
24
(h) BRING-DOWN COMFORT LETTER. At Closing Time, the Lead Managers
shall have received from PricewaterhouseCoopers LLP 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) 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.
25
(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 Xxxxx, 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.
(n) 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 and the Selling Shareholder 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.
(o) 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
26
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 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
27
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
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 INTERNATIONAL MANAGERS BY SELLING SHAREHOLDER.
The Selling Shareholder 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 about the Selling
Shareholder and its affiliates 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 about the Selling Shareholder and
its affiliates 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 about the
Selling Shareholder and its affiliates 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 about the Selling Shareholder and its affiliates 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 Selling Shareholder; 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
28
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
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 U.S. Prospectus (or any amendment or supplement
thereto) and PROVIDED FURTHER that the Selling Shareholder's liability in
respect of any claim hereunder will be limited to the amount of the proceeds
realized from the sale of the Securities by it under this Agreement.
(c) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS AND THE SELLING
SHAREHOLDER. 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, and the
Selling Shareholder and each person, if any, who controls the Selling
Shareholder 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).
(d) 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
29
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 (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.
(e) 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.
(f) OTHER AGREEMENTS WITH RESPECT TO INDEMNIFICATION. The provisions
of this Section shall not affect any agreement between the Company and the
Selling Shareholder with respect to indemnification.
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 and the Selling Shareholder on the one hand and the
International Managers on the other hand from the offering of the Securities
pursuant to this
30
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 and the Selling Shareholder 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 and the Selling
Shareholder 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 Selling
Shareholder 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 and the Selling Shareholder 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 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 the Selling Shareholder
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, the Selling Shareholder 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
31
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 or the Selling Shareholder 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 or the Selling Shareholder. 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.
The provisions of this Section shall not affect any agreement between
the Company and the Selling Shareholder with respect to contribution.
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 or the Selling Shareholder submitted pursuant hereto, shall
remain 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 or the Selling
Shareholder, 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 and the Selling Shareholder, 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
32
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:
(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.
33
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 and the Selling Shareholder 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 SELLING SHAREHOLDER OR THE COMPANY.
(a) If the Selling Shareholder shall fail at Closing Time or at a Date of
Delivery to sell and deliver the number of Securities which the Selling
Shareholder is obligated to sell hereunder, then the International Managers may,
at option of the Lead Managers, by notice from the Lead Managers to the Company,
either (i) terminate this Agreement without any liability on the fault of any
non-defaulting party except that the provisions of Sections 1, 4, 6, 7 and 8
shall remain in full force and effect or (ii) elect to purchase the Securities
which the Company has agreed to sell hereunder. No action taken pursuant to this
Section 11 shall relieve the Selling Shareholder so defaulting from liability,
if any, in respect of such default.
In the event of a default by the Selling Shareholder as referred to in
this Section 11, each of the Lead Managers and the Company shall have the right
to postpone Closing Time or Date of Delivery for a period not exceeding seven
days in order to effect any required change in the Registration Statement or
Prospectuses or in any other documents or arrangements.
(b) 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 B.V., Jupiterstraat 13-15, 2132 HC Hoofddorp, The
Netherlands, attention of Group Director-
34
Corporate Finance; and notices to the Selling Shareholder shall be directed to
Johnnies Industrial Corporation Limited, 00 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx 0000,
Xxxxx Xxxxxx, attention of the Company Secretary.
SECTION 13. PARTIES. This Agreement shall each inure to the benefit
of and be binding upon the International Managers, the Company and the Selling
Shareholder 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, the Company and the Selling
Shareholder 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, the Company and the Selling
Shareholder 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 and the
Selling Shareholder (i) acknowledge that they have, by separate written
instrument, designated and appointed CT Corporation System, 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (and any successor entity), as their 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) submit to the
non-exclusive jurisdiction of any such court in any such suit or proceeding and
(iii) agree that service of process upon CT Corporation System and written
notice of said service to the Company and the Selling Shareholder in accordance
with Section 12 shall be deemed in every respect effective service of process
upon the Company and the Selling Shareholder in any such suit or proceeding. The
Company and the Selling Shareholder 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
35
be outstanding; PROVIDED, HOWEVER, that the Company and the Selling Shareholder
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 State of New York and (ii) is either (x) counsel for the Company and the
Selling Shareholder 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 and the Selling Shareholder or any
of their respective properties, assets or revenues may or may hereafter become
entitled to, or have attributed to the Company and the Selling Shareholder, 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 and the Selling Shareholder, or any other matter
under or arising out of or in connection with this Agreement or the U.S.
Purchase Agreement, the Company and the Selling Shareholder hereby irrevocably
and unconditionally waive such right, and agree not to plead or claim any such
immunity, and consent to such relief or enforcement.
SECTION 16. JUDGMENT CURRENCY. The Company and the Selling
Shareholder agree 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 and the Selling Shareholder 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.
36
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.
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.
37
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Selling Shareholder a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement between the International Managers, the Company and
the Selling Shareholder in accordance with its terms.
Very truly yours,
MIH LIMITED
By:
-----------------------------
Name:
Title:
38
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Selling Shareholder a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement between the International Managers, the Company and
the Selling Shareholder in accordance with its terms.
Very truly yours,
JOHNNIES STRATEGIC INVESTMENT HOLDINGS LIMITED
By:
--------------------------------
Authorized Signatory
JOHNNIES INDUSTRIAL CORPORATION LIMITED
By:
--------------------------------
Authorized Signatory
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
Number of
Initial
International
Name of International Manager Securities
----------------------------- -------------
Xxxxxxx Xxxxx International........................
MeesPierson N.V....................................
----------
Total.............................................. 5,200,000
----------
----------
SCHEDULE B
Number of Initial Maximum Number of Option
Securities to be Sold Securities to be Sold
--------------------- ---------------------
MIH Limited 3,447,100 780,000
Johnnies Strategic Investment 1,752,900 0
Holdings Limited, a company
organized under the laws of
South Africa
Total...................... 5,200,000 780,000
SCHEDULE C
MIH LIMITED
[-] 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)
Exhibit A-2
FORM OF OPINION OF XXXXXX WESTWOOD & RIEGELS
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
Exhibit A-3
FORM OF OPINION OF XXXXX DUTILH
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
Exhibit A-4
FORM OF OPINION OF COMPANY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
Exhibit A-5
FORM OF OPINION OF SOCRATES LOIZEDES
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
Exhibit A-6
FORM OF OPINION OF XXXXX & OVERY (THAILAND)
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
Exhibit B
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDER
TO BE DELIVERED PURSUANT TO SECTION 5(c)
Exhibit C
, 2000
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 Securities and Exchange Commission in connection with the
offering (the "Offering") of ordinary shares ("Shares") of the Company by the
Company and a certain Selling Shareholder of the Company. The undersigned
further understands that the Company and a certain Selling Shareholder 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 Selling Shareholder 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
B-3
transfer (collectively, a "COVERED SALE") any Shares (other than any Shares
registered in the Offering) or any securities convertible into or exchangeable
or exercisable for any Shares, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires
the power of disposition (collectively, the "Locked Shares") or request the
filing of any registration statement under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), with respect to any of the foregoing (it being
understood that such a request shall not be deemed to have been made pursuant to
any registration rights agreement until a request is made thereunder and the
mere entering into of any registration rights agreement shall not be deemed such
a request) or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of Shares, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of the Shares or other
securities, in cash or otherwise.
Sincerely,
Name of Securityholder:
---------------------------------
(Print)
Signature:
---------------------------------
Name:
Title:
(If not a natural person)
B-4