Exhibit 10.1
RELEASE
This RELEASE (this "Release"), dated as of February 22, 2001, is by and
among United Pan-Europe Communications N.V. ("UPC"), UnitedGlobalCom, Inc.
("United"), Liberty Media International, Inc. ("LMI") and Liberty Media
Corporation ("Liberty"). United, LMI and Liberty are sometimes referred to
herein each individually as an "Other Party" and collectively as the "Other
Parties."
RECITALS
A. United, Liberty and UPC are parties to a Term Sheet dated as of
August 30, 1999 (the "Term Sheet"), and UPC and the Other Parties are parties to
an Agreement dated as of June 25, 2000, as amended by the First Amendment, dated
as of July 11, 2000 (as so amended by the First Amendment, the "June 25
Agreement," and together with the Term Sheet, the "Agreement").
B. UPC and the Other Parties desire to amend the Agreement (the
"Amendment") to provide, inter alia, that UPC will be released from all of its
obligations under the Agreement. UPC has not been involved in the negotiation of
the Amendment.
C. In connection with the Amendment, UPC, on the one hand, and the
Other Parties, on the other hand, have agreed to mutually release one another
from all obligations and liabilities arising from or relating to the Agreement,
and to provide for the Purchase Rights and the Commitment set forth in
Paragraphs 3 and 4, respectively, below.
AGREEMENT
In consideration of the foregoing and the respective agreements,
representations and warranties set forth below (the sufficiency of which is
hereby acknowledged), and subject to the terms and conditions hereof, UPC and
the Other Parties hereby agree as follows:
1 Agreement. All of UPC's rights and responsibilities under the
Agreement are hereby terminated. UPC hereby represents and warrants to the Other
Parties that its supervisory and management board has duly authorized this
termination, and the execution, delivery and performance of this Release. Any
term not otherwise defined in this Release shall have the meaning ascribed to it
in the Agreement.
2. Mutual Releases.
(a) Each Other Party, for itself, its affiliates and their
respective shareholders, successors, and assigns and any and all
persons claiming under them (in each case, except UPC and its
subsidiaries, and AT&T and its subsidiaries that are not Liberty or
subsidiaries of Liberty), hereby irrevocably and unconditionally
releases and discharges UPC and its subsidiaries, and their respective
insurers, owners, shareholders, members, past and present employees,
officers, directors, assigns, trustees, agents, attorneys,
beneficiaries, successors and heirs and predecessors in interest, of
and from any and all claims, demands, actions, and liabilities, of
whatever kind or nature, in law or in equity, whether known or unknown,
liquidated or unliquidated, vested or contingent, negligent or
intentional, whether in tort or in contract, of or with respect to UPC,
arising from or relating to the Agreement.
(b) UPC, for itself, its subsidiaries and their respective
successors and assigns and any and all persons claiming under them,
hereby irrevocably and unconditionally releases and discharges each
Other Party and its affiliates (except UPC and its subsidiaries), and
their respective insurers, owners, shareholders, members, past and
present employees, officers, directors, assigns, trustees, agents,
attorneys, beneficiaries, successors and heirs and predecessors in
interest, of and from any and all claims, demands, actions, and
liabilities, of whatever kind or nature, in law or in equity, whether
known or unknown, liquidated or unliquidated, vested or contingent,
negligent or intentional, whether in tort or in contract arising from
or relating to the Agreement.
3 Purchase Rights. UPC hereby grants to the Founders and Liberty a
right to purchase, on the terms described in Exhibit A hereto, the shares of
Class A Common Stock, par value $.01 per share, of United held by UPC (the
"Purchase Rights") on the terms and conditions set forth in Exhibit A hereto.
4. Investment. United agrees to make an investment in UPC (the
"Commitment") on the terms and conditions set forth on Exhibit B hereto.
5. Liberty's Voting Power. Liberty has agreed that it will enter
into definitive agreements pursuant to which its voting power in United will be
limited so that no "change of control" will occur within the meaning of the
indentures governing the currently outstanding bonds issued by United, UPC
Polska, Inc. (formerly @Entertainment, Inc.) and Poland Communications, Inc.
6. Effective Time. This Release will be effective immediately
prior to the effective time of the Amendment, such that the Amendment will
become effective without the signature of UPC.
7. Binding Effect. This Release will be binding upon the parties
hereto, and each of their respective successors and assigns. This Release may
not be assigned by a party without the prior written consent of each other party
hereto, except as set forth in Exhibit A.
8. Modification of the Release. Neither this Release nor any of its
provisions may be changed, waived, discharged or terminated orally, but only in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
9. No Waiver. The failure or delay of any party hereto at any time,
or from time to time, to exercise any right hereunder (other than the Purchase
Rights as described on Exhibit A hereto) or enforce any provision hereof will
not be construed as implying a waiver of such provision or of the right of that
party to exercise or enforce it subsequently. No single or partial exercise of
any right hereunder by any party hereto will preclude the further or full
exercise of that right by such party. No waiver of any default on any one
occasion by a party hereto will constitute a waiver of any subsequent or other
default by such party.
10. Notices. All notices and other communications hereunder shall be
in writing and shall be delivered personally, telecopied (if receipt of which is
confirmed by the person to whom sent), sent by nationally recognized overnight
delivery service, charges prepaid, or mailed by registered or certified mail (if
return receipt is requested), postage prepaid, to the parties at the following
addresses (or to such other Person or address for a party as shall be specified
by such party by like notice) (notice shall be deemed given upon receipt, if
delivered personally, by overnight delivery service or by telecopy, or on the
third business day following mailing, if mailed, except that notice of a change
of address shall not be deemed given until actually received):
If to Liberty, to it at:
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with copies to:
Xxxxx Xxxxx L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and
Xxxxxxx & Xxxxxx
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to United, to it at:
0000 Xxxxx Xxxxxx Xxxxxx, #0000
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to UPC, to it at:
United Pan-Europe Communications X.X.
Xxxxx Xxxxxx 000
0000 XX Xxxxxxxxx
Postbus 74763
1070 BT Amsterdam
The Netherlands
Attention: General Counsel
Telecopier: 011-31-20-778-9871
If notice is made to a Founder, such notice shall be made to the
address of such Founder as shown on the stock transfer books of United (or to
such other Person or address for the Founder as shall be specified by such
Founder by notice to each party and each Founder).
11. Governing Law. This Release will be governed by and construed
in accordance with the laws of the State of Colorado without reference to the
conflict of law rules of that jurisdiction.
12. Counterparts. This Release may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the parties hereto has executed this
Release as of the date first above written.
UnitedGlobalCom, Inc.
By: /s/ Xxxxx X. Xxxxxxxx
Its: Senior Vice President
United Pan-Europe Communications N.V.
By: /s/ Xxxxxxx Xxxxxxx
Its: Chief Financial Officer
By: /s/ Xxxxxx Xxxxx
Its: Authorized Agent
Liberty Media Corporation
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
Its: Senior Vice President
Liberty Media International, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
Its: Senior Vice President
EXHIBIT A
THE PURCHASE RIGHTS
If at any time United no longer possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of UPC,
whether through the ownership of voting securities, by contract or otherwise,
United shall promptly give written notice to the Founders and Liberty that
indicates that it no longer possesses such control (the "Non-Control Notice").
The Founders, Liberty and their respective Permitted Transferees (as defined
below) shall then be entitled for a period of 30 days following the date that
the Non-Control Notice is given (the "UPC Shares Election Period") to provide
written notice to UPC that they intend to purchase the Class A Common Stock, par
value $.01 per share, of United (the "Class A Stock") held by UPC as of the date
that United ceases to possess control of UPC (a "Purchase Notice"), at a price
per share equal to the Average Market Price (as defined in accordance with the
final sentence of Paragraph 5 of Exhibit A to the Agreement) of the Class A
Stock as of the date that United ceases to possess control of UPC. Each Founder
and Liberty (and their Permitted Transferees) shall be entitled to purchase a
percentage of the Class A Stock held by UPC equal to the respective percentages
held by them, as of the date of the Non-Control Notice, of the aggregate number
of votes of all equity securities of United held by the Founders, Liberty and
their Permitted Transferees. If any Founder or Permitted Transferee of a Founder
fails to submit a Purchase Notice within the UPC Shares Election Period, the
Founders or Permitted Transferees of Founders who have so submitted a timely
Purchase Notice may, for a period of ten days following the expiration of the
UPC Shares Election Period, allocate among themselves the Purchase Rights as to
which any Founder or Permitted Transferee of a Founder did not submit a timely
Purchase Notice. The Founders and their Permitted Transferees shall then provide
amended Purchase Notices to UPC that reflect their allocation of such Purchase
Rights. Thereafter, any Purchase Rights not exercised by a Founder or its
Permitted Transferees, or by Liberty and its Permitted Transferees within the
UPC Shares Election Period, may be allocated among the parties who have
submitted Purchase Notices as such parties may agree, and amended Purchase
Notices that reflect such agreement shall be provided to UPC.
Within 60 days following delivery of the Non-Control Notice (the
"Purchase Period"), the Founders, Liberty and their Permitted Transferees, shall
deliver to UPC an amount in cash equal to the consideration to be paid for the
Class A Stock subject to a Purchase Notice, and UPC shall at the same time
deliver to the Founders, Liberty or their Permitted Transferees, as applicable,
certificates representing such Class A Stock, free and clear of any lien or
other encumbrance. The Purchase Rights of any Founder, Liberty or any of their
Permitted Transferees shall terminate with respect to Class A Stock for which a
Purchase Notice has been given, if such Founder, Liberty or Permitted Transferee
fails to purchase such Class A Stock within the Purchase Period. UPC shall be
entitled to retain any Class A Stock with respect to which Purchase Rights
terminate.
For purposes of this Exhibit A, "Permitted Transferee" (a) with respect
to a Founder, shall have the meaning set forth in Paragraph 3 of Exhibit C to
the Agreement, and (b) with respect to Liberty, shall include any controlled
affiliate of Liberty.
EXHIBIT B
UNITED GLOBALCOM, INC.
0000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
February 22, 2001
United Pan-Europe Communications NV
Xxxxx Xxxxxx 000
0000 XX Xxxxxxxxx
Postbus 74763
1070 BT Amsterdam
Attention: Xxxxxx Xxxxx
re Rights Issue - Commitment Letter
Ladies and Gentlemen:
You have advised United GlobalCom, Inc. (the "Parent") that United
Pan-Europe Communications NV ("UPC") intends to issue to the holders (the
"Holders") of its issued and outstanding Class A ordinary shares (the "Ordinary
Shares") , American Depositary Receipts ("ADRs") and warrants, convertible
preference shares and share options exercisable for or convertible into Ordinary
Shares or ADRs (to the extent the Holders of such instruments are entitled to
participate in any rights offering), certain rights (the "Rights") to subscribe
for and purchase additional Ordinary Shares or ADRs, as the case may be. The
offering of Ordinary Shares and ADRs to the Holders through the exercise of
Rights is herein referred to as the "Rights Offering".
It is currently contemplated that the Rights Offering will comprise
(i) a first tranche offering of Rights at the price of euro 8.00 per Ordinary
Share, such that the aggregate net proceeds to UPC assuming full exercise of
Rights in such tranche is approximately euro 1 billion and (ii) a second tranche
offering of Rights to the Parent alone at a price per Ordinary Share equal to
euro 11.40 (representing the average of the official closing prices per Ordinary
Share quoted on the Official Segment of Amsterdam Exchanges N.V.'s stock market
for the five (5) trading days up to and including February 21, 2001), such that
the aggregate net proceeds to UPC assuming full exercise of Rights in such
tranche is approximately euro 500 million.
The purpose of this letter (the "Commitment Letter") is to confirm the
Parent's agreement, directly or through one or more of its affiliates and,
subject to the conditions and as further agreed below, (i) to fully exercise its
Rights in respect of the first tranche and to purchase any remaining Rights not
taken up by other Shareholders in such tranche and (ii) to exercise its Rights
in respect of the second tranche such that the aggregate price of Ordinary
Shares purchased by it equals euro 1 billion. The net cash proceeds from the
Rights Offering will be used for capital expenditures and operating expenses in
the business of UPC.
The term "Purchaser" as used in this Commitment Letter shall mean the
Parent and one or more other affiliates of the Parent who actually purchase or
undertake the commitment to purchase the Ordinary Shares referred to herein.
The Parent's commitment to participate in the Rights Offering as
described herein is subject to the following conditions:
(i) a registration statement relating to the Rights Offering having
been declared effective by the U.S. Securities and Exchange Commission (the
"SEC") and prior to consummation of the Rights Offering no stop order suspending
the effectiveness of the registration statement or of any part thereof having
been issued and no proceedings for that purpose having been instituted or
threatened by the SEC;
(ii) the Ordinary Shares to be sold by UPC pursuant to the Rights
Offering or this Commitment Letter, when issued and delivered pursuant to the
Rights or this Commitment Letter, having been duly authorized and validly issued
shares of UPC and fully paid and non-assessable;
(iii) receipt of all governmental and third party consents and
approvals necessary or reasonably desirable in connection with any aspect of the
Rights Offering or any other transactions contemplated hereby;
(iv) the listing and admission for trading of the Ordinary Shares
underlying the Rights on the Official Segment of Amsterdam Exchanges N.V.'s
stock market, and the admission for trading of the ADSs, if any, to be issued in
connection with the Rights Offering on NASDAQ; and
(v) the Parent shall have received cash consideration in an amount not
less than U.S.$ 1 billion in respect of the transaction between the Parent, LMI
and Liberty described in the Amendment (as each such term is defined in the
Release Agreement dated the date hereof).
If any of the conditions described in (i) to (v) above are not
satisfied, the proposed Rights Offering will be canceled. However, so long as
condition (v) above has been satisfied, the Parent agrees that on written
request of UPC received within 30 days of cancellation of the Rights Offering,
it will promptly thereafter subscribe for Ordinary Shares in UPC in an amount
equal to euro 1 billion at a price equal to euro 9.70 per Ordinary Share.
In addition, the Parent hereby agrees to vote, and to cause each of its
affiliates to vote, their respective voting shares in the capital of UPC in
favor of the issuance of the additional Ordinary Shares underlying the Rights in
connection with the Rights Offering.
The Parent will be responsible for all reasonable out-of-pocket
expenses of the Purchaser incurred in connection with the matters referred to
herein, including the fees and expenses of outside counsel and fees and expenses
of other professional advisors retained by the Purchaser, whether or not the
Rights Offering is consummated or any Ordinary Shares and/or ADRs are actually
issued. The Parent agrees that no compensation (other than that expressly
contemplated by this Commitment Letter) will be paid to the Parent or any
Purchaser in connection with the Rights Offering and standby underwriting
commitment unless you and the Parent shall so agree.
This Commitment Letter shall be governed by the laws of the State of
Colorado. Any right to trial by jury with respect to any claim, action, suit or
proceeding arising out of or contemplated by this letter is hereby waived and
the parties hereto hereby submit to the non-exclusive jurisdiction of the
federal and state courts located in Denver, Colorado in connection with any
dispute related to this letter and/or any matters contemplated hereby. This
Commitment Letter is not assignable by you to any other person.
Please confirm that the foregoing is in accordance with your
understanding by signing and returning to us an executed duplicate of this
letter. Upon your acceptance hereof, this letter will constitute a binding
agreement between us.
UNITED GLOBALCOM, INC.
By: /s/ Xxxxx X. Xxxxxxxx
Title: Senior Vice President
By: ___________________________________
Title:
Agreed to and Accepted:
UNITED PAN-EUROPE COMMUNICATIONS NV
By: /s/ Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
By: /s/ Xxxxxx Xxxxx
Title: Authorized Agent
