EXHIBIT 1.2
UNITED PAN-EUROPE COMMUNICATIONS N.V.
ORDINARY SHARES
(NOMINAL VALUE EURO 0.30 PER SHARE)
IN THE FORM OF ORDINARY SHARES OR
AMERICAN DEPOSITARY SHARES
AGREEMENT BETWEEN U.S. AND
INTERNATIONAL UNDERWRITING SYNDICATES
February ____, 1999
This Agreement is made between: (a) ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, as
representatives (the "U.S. Representatives") for the United States underwriters
(the "U.S. Underwriters") listed in Schedule I to the Underwriting Agreement
(U.S. Version) (the "U.S. Underwriting Agreement"), dated the date hereof, among
the U.S. Underwriters, United Pan-Europe Communications N.V. (the "Company") and
United International Holdings, Inc. ("Parent"); and (b) ▇▇▇▇▇▇▇ Sachs
International ("GSI") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited ("MSIL"),
as Lead Managers (the "Lead Managers") for the international underwriters (the
"International Underwriters") listed in Schedule I to the Underwriting Agreement
(International Version) (the "International Underwriting Agreement"), dated the
date hereof, among the International Underwriters, the Company and Parent. The
U.S. Underwriters and the International Underwriters are herein collectively
called the "Underwriters", each such group of Underwriters is sometimes
separately called a "syndicate", and ▇▇▇▇▇▇▇, Sachs & Co., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation on the one
hand, and GSI and MSIL on the other hand, are sometimes called "syndicate
representatives" of the U.S. Underwriters and the International Underwriters,
respectively. GSI and MSIL shall act as joint global coordinators (the "Joint
Global Coordinators") of the offerings described herein.
The U.S. Underwriters, pursuant to the U.S. Underwriting Agreement, have
agreed to purchase [___________] Firm Shares and, at the option of the U.S.
Underwriters, up to an additional [___________] Optional Shares (collectively,
the "U.S. Shares"), in the form of shares of Stock or ADSs, and the
International Underwriters, pursuant to the International Underwriting
Agreement, have agreed to purchase [______] Firm Shares and, at the option of
the International Underwriters, up to an additional [________] Optional Shares
(collectively, the "International Shares"), in the form of shares of Stock or
ADSs. In respect of these offerings, the U.S. Underwriters have entered into an
Agreement among Underwriters (U.S. Version) (the "U.S. AAU") and the
International Underwriters have entered into an Agreement among Underwriters
(International Version) (the "International AAU") (each separately referred to
as an "AAU"). The U.S. Underwriters and the International Underwriters deem it
necessary and advisable in connection therewith that certain of their respective
activities be coordinated pursuant to this Agreement. The U.S. Shares and the
International Shares are hereinafter referred to collectively as the "Shares".
The "overall underwriting proportion" and the "syndicate underwriting
proportion" of any Underwriter or group of Underwriters shall be that proportion
which is to be underwritten by such Underwriter or Underwriters of either (x)
all of the
Shares or (y) of all the Shares of the relevant syndicate (in the case of (x) or
(y) exclusive of Optional Shares, except as the Joint Global Coordinators may
decide). Terms not defined herein are used as defined in the underwriting
agreements referred to above.
1. The U.S. Underwriters, acting through the U.S. Representatives, and
the International Underwriters, acting through the Lead Managers, agree that
from time to time until the termination of certain provisions of the U.S. AAU
they will consult with and advise each other as to the availability for sale of
Shares purchased pursuant to the U.S. Underwriting Agreement or the
International Underwriting Agreement and remaining unsold. From time to time,
at (but only at) the direction of or with the consent of the Joint Global
Coordinators, in consultation with ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated [and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation], the
Underwriters may purchase and sell from one syndicate to the other some or all
of such unsold Shares.
Unless otherwise determined by the Joint Global Coordinators, the price and
currency settlement of any Shares so purchased or sold shall be the original
public offering price, in United States dollars, less an amount not greater than
the selling concession of the U.S. Shares (adjusted, if necessary, in the case
of the purchase of ADSs to reflect the ratio of shares of Stock per ADS).
Settlement with respect to any Shares or ADSs transferred hereunder prior to a
Time of Delivery shall be made on such Time of Delivery if feasible but in no
event later than five business days after the transfer date. The Shares or ADSs
so purchased shall be delivered on the respective settlement dates or other
mutually satisfactory settlement shall be made. The liability for payment to
the Company of the purchase price of the Shares being purchased under the
respective underwriting agreements shall not be affected by the provisions of
this Agreement.
In connection with the purchase or sale of Shares from one syndicate to the
other pursuant to this Section 1, the obligations of each Underwriter, subject
to the availability of unsold Shares or ADSs in the case of a sale by an
Underwriter's syndicate, shall be in accordance with the syndicate underwriting
proportion of each Underwriter; provided, however, that an Underwriter, with the
consent of its syndicate representatives, may agree to purchase or sell more or
fewer Shares or ADSs than would constitute its syndicate underwriting proportion
and the number of Shares to be purchased or sold by the other Underwriters in
the same syndicate shall be computed after giving effect to such variance.
Except as provided in this paragraph, the allocation of rights and obligations
of Underwriters in respect of any purchase of Shares or ADSs from or sale of
Shares or ADSs to the other syndicate shall be governed by the applicable
provisions of the respective syndicate's AAU and the Joint Global Coordinators
are authorized to effect any and all such transactions for the respective
accounts of the Underwriters as provided herein.
2. All stabilization transactions, whether in the United States or
otherwise, shall be conducted at the direction of and subject to the control of
GSI, so that stabilization activities worldwide shall be coordinated and
conducted in compliance with any applicable laws and regulations. If requested
and subject to applicable law, each syndicate representative shall effect such
stabilization transactions in such amounts, at such prices, in such terms and in
such manner as GSI shall direct. All such stabilization transactions shall be
for the respective accounts of the U.S. Underwriters and the International
Underwriters in accordance with their respective overall underwriting
proportions.
3. GSI in consultation with MSIL shall have sole responsibility with
respect to establishing the amount of Optional Shares to be purchased by the
U.S. Underwriters and the International Underwriters and, subject to the
authority of GSI under Section 2 hereof, with respect to overallotments in
arranging for sales of Shares for the accounts of all such Underwriters.
Neither syndicate shall exercise the overallotment option granted to it by the
Company without the prior approval of GSI, and each syndicate shall exercise
such option if, when and to the extent directed by GSI in consultation with
MSIL. Each syndicate shall be solely responsible for profits and losses arising
from its overallotments; provided, however, that to the extent that one
syndicate may be accorded an overallotment option that is disproportionate to
its aggregate underwriting commitment at the expense of the size of the
overallotment option of the other syndicate, GSI in consultation with MSIL may
reallocate between the syndicates profits and losses arising from
overallotments.
4. The U.S. Underwriters agree for the benefit of the International
Underwriters to comply with the U.S. AAU and the International Underwriters
agree for the benefit of the U.S. Underwriters to comply with the International
AAU, and to reconfirm the geographic selling restrictions applicable to the
offerings, as summarized in Annex A hereto.
5. The U.S. Representatives and the Lead Managers agree that:
(a) If a Time of Delivery is not on the day provided in the U.S.
Underwriting Agreement and in the International Underwriting Agreement, they
will mutually agree on a postponed date within the time permitted by such
underwriting agreements and the settlement dates herein provided shall be
adjusted accordingly;
(b) Changes in the public offering price or in the selling concession and
reallowance to dealers will be made only after consultation among them, but in
accordance with the direction of the Joint Global Coordinators, during the
consultation period specified in the first sentence of Section 1 hereof;
(c) Each syndicate, through the respective syndicate representatives, will
keep the other fully informed of the progress of the offering and distribution
of the Shares; and
(d) The Lead Managers shall not terminate the International Underwriting
Agreement pursuant to the conditions set forth in Section 7 thereof except after
consultation with the U.S. Representatives, and the U.S. Representatives shall
not terminate the U.S. Underwriting Agreement pursuant to the conditions set
forth in Section 7 thereof except after consultation with the International
Underwriters.
6. The obligations of the Underwriters set forth in Sections 1, 2, 3 and
4 hereof shall terminate upon the termination of certain provisions (including
the geographic selling restrictions) of the U.S. AAU pursuant to Section 10
thereof, which termination shall be on the thirtieth full business day after the
Firm Shares are released by the U.S. Representatives for sale to the public,
unless earlier terminated by the U.S. Representatives as provided therein. The
Lead Managers shall cause the termination of the corresponding provisions of the
International AAU simultaneously with such termination of provisions of the U.S.
AAU.
7. Any global or regional advertising with respect to the offering shall
be under the control of the Joint Global Coordinators.
8. Each Underwriter acknowledges that the Company has agreed to pay or
cause to be paid to GSI, as joint global coordinator and solely for its account,
an amount not to exceed U.S. $[__________________] in lieu of reimbursement of
expenses relating to the underwriting and distribution of the Shares common to
the U.S. Underwriters and the International Underwriters. Each of the U.S.
Underwriters and the International Underwriters agrees that the fees and
disbursements of Debevoise & ▇▇▇▇▇▇▇▇ (U.S. counsel to the Underwriters) and
▇▇▇▇▇ Dutilh (Netherlands counsel to the Underwriters), reasonable out-of-pocket
expenses of the Joint Global Coordinators, reasonable out-of-pocket expenses of
the U.S. Representatives and the Lead Managers (other than the fees and
disbursements of any local counsel to the International Underwriters) and the
costs of global advertising, if any, shall constitute expenses common to them.
The U.S. Underwriters and the International Underwriters agree that common
expenses in excess of the amount received by GSI described in the first sentence
of this paragraph shall be shared among them in accordance with their respective
overall underwriting proportions. Except with respect to such common expenses,
the International Underwriters will pay the aggregate expenses incurred in
connection with the purchase, carrying or sale of the International Shares, and
the U.S. Underwriters will pay the aggregate expenses incurred in connection
with the purchase, carrying or sale of the U.S. Shares. Notwithstanding the
foregoing, the U.S. Underwriters and the International Underwriters agree that
stabilization transactions and overallotments, purchases and sales of any
securities pursuant to Sections 2 and 3 hereof, and any expenses in respect
thereof, will be for their respective accounts in accordance with Sections 2 and
3 hereof. The ascertainment of all expenses and apportionment thereof by GSI
shall be conclusive.
Each U.S. Underwriter and International Underwriter agrees to pay GSI an
amount equal to U.S. $[__________________] per Share in respect of the overall
underwriting proportion of such Underwriter as compensation for the services of
the Joint Global Coordinators in connection with the offerings described herein,
to be divided as agreed between the Joint Global Coordinators, and authorizes
each of the U.S. Representatives and the Lead Managers, as the case may be, at
their discretion, to charge its account therefor.
9. Neither the U.S. Representatives nor the Lead Managers shall, by
virtue of executing this Agreement, have any liability to any other Underwriter
for the failure of another Underwriter to perform its obligations under either
underwriting agreement or either AAU. The duties of the Joint Global
Coordinators hereunder shall be administrative and not fiduciary in nature.
10. This Agreement may be amended before or after any Time of Delivery by
mutual written agreement of the undersigned U.S. Representatives and Lead
Managers.
11. This Agreement may be signed in any number of counterparts, which
together shall constitute one and the same instrument, and shall be binding upon
and inure to the benefit of all of the Underwriters.
12. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, United States of America.
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written by the undersigned for themselves and for the
Underwriters as set forth above.
Acting on behalf of themselves and the other
U.S. Underwriters:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
______________________
(▇▇▇▇▇▇▇, Sachs & Co.)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: ______________________
Name:
Title:
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
By: ______________________
Name:
Title:
Acting on behalf of themselves and the other
International Underwriters:
▇▇▇▇▇▇▇ Sachs International
By: ______________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
By: ______________________
Name:
Title:
Annex A
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SUMMARY OF GEOGRAPHIC SELLING RESTRICTIONS
U.S. Underwriters (as set forth in Section 4 of the U.S. AAU):
U.S. Underwriters may offer and sell only:
(a) in the United States of America (including the District of Columbia),
its territories, its possessions and other areas subject to its
jurisdiction (the "United States"); and
(b) to "U.S. Persons", meaning
(i) individuals resident in the United States, and
(ii) corporations, partnerships or other entities organized in or
under the laws of the United States or any political subdivision
thereof and whose office most directly involved in the purchase
is located in the United States (including any such entity
constituting an investment adviser acting with discretionary
authority for a non-U.S. Person);
subject to the following exceptions:
(a) sales by offices of (i) ▇▇▇▇▇▇▇, Sachs & Co. acting as agent for GSI
and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated acting as agent for MSIL,
and
(b) with the prior written approval of GSI and MSIL, sales by a foreign
branch of a U.S. Underwriter acting on behalf of an affiliated
International Underwriter.
International Underwriters (as set forth in Section 3(d) of the International
AAU):
International Underwriters may offer and sell only outside the United
States to non-U.S. Persons (including any such entity constituting an
investment adviser located outside the United States acting with
discretionary authority for a U.S. Person).
