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EXHIBIT 1.2
MIH LIMITED
(a British Virgin Islands corporation)
4,150,000
Class A Ordinary Shares
INTERNATIONAL PURCHASE AGREEMENT
Dated: April [ ], 1999
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TABLE OF CONTENTS
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INTERNATIONAL PURCHASE AGREEMENT...............................................1
SECTION 1. Representations and Warranties.....................................4
(a) Representations and Warranties by the Company.............4
(i) Compliance with Registration Requirements........4
(ii) Independent Accountants..........................5
(iii) Financial Statements.............................5
(iv) No Material Adverse Change in Business...........6
(v) Good Standing of the Company.....................6
(vi) Good Standing of Subsidiaries....................6
(vii) Capitalization...................................7
(viii) Authorization of Agreement.......................7
(ix) Authorization and Description of Securities......8
(x) Absence of Defaults and Conflicts................8
(xi) Absence of Labor Dispute.........................9
(xii) Absence of Proceedings...........................9
(xiii) Accuracy of Exhibits............................10
(xiv) Possession of Intellectual Property.............10
(xv) Absence of Further Requirements.................10
(xvi) Possession of Licenses and Permits..............11
(xvii) Title to Property...............................11
(xviii) Compliance with Research Guidelines.............12
(xix) Investment Company Act..........................12
(xx) Environmental Laws..............................12
(xxi) Registration Rights.............................13
(xxii) Statistical and Market-Related Data.............13
(xxiii) Johannesburg Stock Exchange.....................13
(b) Officer's Certificates...................................13
SECTION 2. Sale and Delivery to International Managers; Closing..............13
(a) Initial Securities.......................................13
(b) Option Securities........................................14
(c) Payment..................................................14
(d) Denominations; Registration..............................15
(e) Appointment of Qualified Independent Underwriter.........16
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SECTION 3. Covenants of the Company...........................................16
(a) Compliance with Securities
Regulations and Commission Requests.......................16
(b) Filing of Amendments......................................17
(c) Delivery of Registration Statements.......................17
(d) Delivery of Prospectuses..................................17
(e) Continued Compliance with Securities Laws.................18
(f) Blue Sky Qualifications...................................18
(g) Rule 158..................................................19
(h) Use of Proceeds...........................................19
(i) Listing...................................................19
(j) Restriction on Sale of Securities.........................19
(k) Reporting Requirements....................................20
(l) Compliance with Rule 463..................................20
SECTION 4. Payment of Expenses................................................20
(a) Expenses..................................................20
(b) Termination of Agreement..................................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 International Managers.........22
(d) Officers' Certificate.....................................22
(e) Accountant's Comfort Letter...............................23
(f) Bring-down Comfort Letter.................................23
(g) Approval of Listing.......................................23
(h) No Objection..............................................23
(i) Lock-up Agreements........................................23
(j) Purchase of Initial U.S. Securities.......................23
(k) Conditions to Purchase of
International Option Securities...........................24
(l) Additional Documents......................................25
(m) Termination of Agreement..................................25
SECTION 6. Indemnification....................................................25
(a) Indemnification of International Managers.................25
(b) Indemnification of Company, Directors and Officers........27
(c) Actions Against Parties; Notification.....................27
(d) Settlement Without Consent if Failure To Reimburse........28
SECTION 7. Contribution.......................................................29
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SECTION 8. Representations, Warranties and Agreements To Survive Delivery....31
SECTION 9. Termination of Agreement..........................................31
(a) Termination; General.....................................31
(b) Liabilities..............................................31
SECTION 10. Default by One or More of the International Managers..............32
SECTION 11. Notices...........................................................33
SECTION 12. Parties...........................................................33
SECTION 13. GOVERNING LAW AND TIME............................................33
SECTION 14. Agent for Service; Submission to
Jurisdiction; Waiver of Immunities................................33
SECTION 15. Judgment Currency.................................................35
SECTION 16. Effect of Headings................................................35
SECTION 17. Counterparts......................................................35
SCHEDULES
Schedule A - List of Underwriters...............................Sch A-1
Schedule B - Pricing Information................................Sch B-1
Schedule C - List of Persons Subject to Lock-Up.................Sch C-1
EXHIBITS
Exhibit A-1 - Form of Opinion of Cravath, Swaine & ▇▇▇▇▇..........A-1-1
Exhibit A-2 - Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Riegels........A-2-1
Exhibit A-3 - Form of Opinion of Mallinicks.......................A-3-1
Exhibit A-4 - Form of Opinion of Zepos & Zepos....................A-4-1
Exhibit A-5 - Form of Opinion of ▇▇▇▇▇ Dutilh.....................A-5-1
Exhibit A-6 - Form of Opinion of Loyens & Volkmaars...............A-6-1
Exhibit A-7 - Form of Opinion of White & Case (Thailand)Limited...A-7-1
Exhibit B - Form of Lock-up Letter................................B-1
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MIH LIMITED
(a British Virgin Islands corporation)
4,150,000 Class A Ordinary Shares
(No Par Value)
INTERNATIONAL PURCHASE AGREEMENT
April [ ], 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
DLJ Securities International MeesPierson N.V.
as Lead Managers of the several International Managers
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
MIH Limited, an International Business Company organized under the
laws of the British Virgin Islands (the "Company"), confirms its agreement with
▇▇▇▇▇▇▇ ▇▇▇▇▇ International, ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other
international managers named in Schedule A hereto (collectively, the
"International Managers," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom ▇▇▇▇▇▇▇
▇▇▇▇▇ and DLJ Securities International and MeesPierson N.V. are acting as
representatives (in such capacity, the "Lead Managers"), with respect to the
issue and sale by the Company referred to in Schedule A 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 with respect to 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
622,500 additional Class A Ordinary Shares to cover over-allotments, if any. The
4,150,000 Class A Ordinary Shares referred to in Schedule A (the "Initial
International Securities") to be purchased by the International Managers and all
or any part of the 622,500 Class A Ordinary Shares subject to the option
described in Section 2(b) hereof
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(the "International Option Securities") are hereinafter called, collectively,
the "International Securities."
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company of an aggregate of 4,150,000 Class A Ordinary Shares
(the "Initial U.S. Securities") through arrangements with certain underwriters
outside the United States and Canada (the "U.S. Underwriters") for which ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation are acting as the representatives (the "U.S.
Representatives") 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 622,500 additional Class A Ordinary
Shares solely to cover over-allotments, if any (the "U.S. Option Securities"
and, together with the International Option Securities, the "Option
Securities"). The Initial U.S. Securities and the U.S. Option Securities are
hereinafter called the "U.S. Securities." It is understood that the Company is
not obligated to sell, and the International Managers are not obligated to
purchase, any Initial International Securities unless all of the Initial U.S.
Securities are contemporaneously purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters," the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities," and the International Securities and the U.S. Securities are
hereinafter collectively called the "Securities."
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of ▇▇▇▇▇▇▇ ▇▇▇▇▇ International (in such capacity, the "Global
Coordinator").
The Company understands that the International Managers propose to
make a public offering of the International Securities as soon as the Lead
Managers deem advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form F-1 (No. 333-74227) covering
the registration of the
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Securities under the Securities Act of 1933, as amended (the "1933 Act"),
including the related preliminary prospectus or prospectuses. Promptly after
execution and delivery of this Agreement, the Company will either (i) prepare
and file a prospectus in accordance with the provisions of Rule 430A ("Rule
430A") of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the
1933 Act Regulations or (ii) if the Company has elected to rely upon Rule 434
("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two forms
of prospectus are to be used in connection 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 caption "Underwriting" and the inclusion in the Form of
International Prospectus of sections under the captions "Additional Information"
and "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 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 "Interna-
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tional Prospectus" and "U.S. Prospectus" shall refer to the preliminary
International Prospectus dated [ ], 1999 and the preliminary U.S. Prospectus
dated [ ], 1999, 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 applicable 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 ("▇▇▇▇▇").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to and agrees with each International Manager as of the
date hereof, as of the Closing Time referred to in Section 2(c) hereof, and as
of each Date of Delivery (if any) referred to in Section 2(b) hereof, and agrees
with each International Manager, as follows:
(i) Compliance with Registration Requirements. The Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the 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, and any
post-effective amendments thereto became effective and at the Closing Time
(and, if any International Option Securities are purchased, at the Date of
Delivery), the 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
amendments or supplements thereto were issued and at the Closing Time
(and, if any International Option Securities are purchased, at the Date of
Delivery), included or will include an untrue statement
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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 the 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 the
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 each
Prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(ii) 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.
(iii) 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, shareholders' equity and cash flows for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles under International Accounting
Standards ("IAS GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules included in the Registration
Statement present fairly in accordance with IAS GAAP the information
re-
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quired to be stated therein. The selected and summary financial data
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.
(iv) 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, which
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.
(v) 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.
(vi) 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 (to the extent applicable) 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
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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
capital stock or other ownership interests of each Subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable (to
the extent applicable) and to the extent owned, directly or indirectly, by
the Company, is owned free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity. None of the outstanding shares
of capital stock or other ownership interests of any Subsidiary was issued
in violation of the preemptive or similar rights of any securityholder of
such Subsidiary. The only subsidiaries of the Company are (a) the
subsidiaries listed on Exhibit 21 to the Registration Statement and (b)
certain other subsidiaries which, considered in the aggregate as a single
subsidiary, do not constitute a "significant subsidiary" as defined in
Rule 1-02 of Regulation S-X.
(vii) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
agreements or employee benefit plans referred to in the Prospectuses or
pursuant to the exercise of convertible securities or options referred to
in the Prospectuses). The shares of issued and outstanding capital stock
of the Company have been duly authorized and validly issued and are fully
paid and non-assessable. None of the outstanding shares of capital stock
of the Company was issued in violation of the preemptive or other similar
rights of any direct or indirect securityholder of the Company.
(viii) 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 Agree-
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ment and the U.S. Purchase Agreement have been duly executed and delivered
by the Company.
(ix) 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.
(x) 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
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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.
(xi) 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 threatened
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.
(xii) 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, singly or in the aggregate, may
reasonably be expected to result in a Material Adverse Effect, or which,
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
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transactions contemplated in this Agreement and the U.S. Purchase
Agreement or the performance by the Company of its obligations hereunder
or thereunder. The aggregate of all pending legal or governmental
proceedings to which the Company or any Venture is a party or of which any
of their respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business, singly or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect.
(xiii) 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.
(xiv) 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, may reasonably be expected to result in a
Material Adverse Effect.
(xv) 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 hereunder, in connection with the offering, issuance or sale
of the Securities under this Agreement and the U.S. Purchase Agreement or
the consummation of the transactions contemplated by this Agreement and
the International Purchase Agreement, except such as have been already
obtained
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and are in full force and effect or as may be required (i) under the 1933
Act or the 1933 Act Regulations and state securities or blue sky 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.
(xvi) Possession of Licenses and Permits. Except as otherwise
disclosed in the Registration Statement, the Company and the Ventures
possess such permits, licenses (including, without limitation, television
broadcast frequency allocations and 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.
(xvii) 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
-12-
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.
(xviii) Compliance with Research Guidelines. The Company, directly
or indirectly, has not taken and will not take any action that is
inconsistent with the guidelines set forth in the memorandum dated January
14, 1999 of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ relating to research reports, and,
without limiting the foregoing, has not distributed and will not
distribute, in any manner, any research report contemplated by such
research guidelines or any portion thereof.
(xix) 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").
(xx) 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 national, provincial, state or local 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, de-
-13-
mands, 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.
(xxi) 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.
(xxii) Statistical and Market-Related Data. The statistical and
market-related data included in the Prospectuses are based on or derived
from sources which 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.
(xxiii) Johannesburg Stock Exchange. All authorizations, approvals,
consents, qualifications or decrees of the Johannesburg Stock Exchange
which are necessary or required for the performance by the Company of its
obligations hereunder have been obtained.
(b) Officer's Certificates. Any certificate signed by any officer
of the Company or any Ventures delivered to the Global Coordinator, the Lead
Managers or to counsel for the International Managers shall be deemed a
representation and warranty by the Company to each International Manager as to
the matters covered thereby.
SECTION 2. Sale and Delivery to the International Managers; Closing
(a) Initial Securities. The Company agrees to sell to each
International Manager, severally and not jointly, and on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, each International Manager, severally and not
jointly, agrees to purchase from the Company, at the price per share set forth
in Schedule B, the number of Initial International Securities set forth in
Schedule A opposite the name of such Inter-
-14-
national Manager, plus any additional number of Initial International Securities
which such International Manager may become obligated to purchase pursuant to
the provisions of Section 10 hereof.
(b) Option Securities. In addition, the Company hereby grants an
option to the International Managers, severally and not jointly, to purchase up
to an additional 622,500 Class A Common Shares at the price per share set forth
in Schedule B, 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 ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or at such other
place as shall be agreed upon by the Global Coordinator and the Company, at 9:00
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
-15-
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
and the Company (such time and date of payment and delivery being herein called
"Closing Time").
In addition, in the event that any or all of the International
Option Securities are purchased by the International Managers, payment of the
purchase price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company, on each Date
of Delivery as specified in the notice from the Global Coordinator to the
Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Lead Managers for the respective accounts of the International Managers of
certificates for the International Securities to be purchased by them. It is
understood that each International Manager has authorized the International
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.
▇▇▇▇▇▇▇ ▇▇▇▇▇, 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.
-16-
(e) Appointment of Qualified Independent Underwriter. The Company
hereby confirms its engagement of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation ("DLJ") as, and DLJ hereby confirms its agreement with the Company
to render services as, a "qualified independent underwriter" within the meaning
of Section (b)(15) of Rule 2720 of the Conduct Rules of the National Association
of Securities Dealers, Inc. (the "NASD") with respect to the offering and sale
of the International Securities. DLJ, solely in its capacity as qualified
independent underwriter and not otherwise, is referred to herein as the
"Independent Underwriter". As compensation for the services of the Independent
Underwriter hereunder, the Company agrees to pay the Independent Underwriter the
fee specified in Section 2(e) of the U.S. Purchase Agreement at the Closing
Time. The price at which the International Securities will be sold to the public
shall not be higher than the maximum price recommended by the Independent
Underwriter.
SECTION 3. Covenants of the Company. The Company covenants with each
International Manager as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify the
Global Coordinator immediately, and confirm the notice in writing, (i)
when any post-effective amendment to the Registration Statement shall
become effective, or any supplement to the Prospectuses or any amended
Prospectuses shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectuses or for additional information, and (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424(b)
and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was
not, it will promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance
-17-
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 signed copies of all
consents and certificates of experts, and will also deliver to 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 ▇▇▇▇▇, 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 Underwriter 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
Securities Exchange of 1934 (the "1934 Act"), such number of copies of the
International Prospectus (as amended or supplemented) as such
International Manager may reasonably request. The International Prospectus
and any amendments or supplements thereto furnished to the International
Managers will be identical to the electronically transmitted copies
thereof
-18-
filed with the Commission pursuant to ▇▇▇▇▇, 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 (domestic or foreign) 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; 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
-19-
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.
(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) Listing. The Company will use its best efforts to effect the
listing of the Class A Ordinary Shares (including the Securities) on the
Amsterdam Stock Exchange and comply with the requirements of such exchange
to maintain such listing. In addition, the Company will use its best
efforts to effect and maintain the quotation of the Class A Ordinary
Shares (including the Securities) on the Nasdaq National Market and will
file with the Nasdaq National Market all documents and notices required by
the Nasdaq National Market of companies that have securities that are
traded in the over-the-counter market and quotations for which are
reported by the Nasdaq National Market.
(j) 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 the Global Coordinator, 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 to purchase or otherwise dispose of or transfer 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) 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,
-20-
whether any such 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 sale of the Securities hereunder or under the U.S. Purchase
Agreement or (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. In addition, during a period of one year from the date of
the Prospectuses, the Company will not, without the prior written consent
of the Global Coordinator, file any registration statement under the 1933
Act for the benefit of any person (or any of their transferees) listed on
Schedule C hereto.
(k) 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 and rules and regulations of the Commission
thereunder within the time periods referred to therein.
(l) Compliance with Rule 463. The Company will file with the
Commission such reports as may be required pursuant to Rule 463 of the
1933 Act Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay
all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, issuance
and delivery of the certificates for the Securities to the Underwriters,
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
Underwriters and the transfer of the Securities between the U.S. Underwriters
and the International Managers, (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 with the preparation of the Blue Sky Survey and any supplement thereto,
(v) the printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheets and of the Prospectuses and any amendments or
supplements thereto, (vi) all "road show" expenses of the Company and the
Underwrit-
-21-
ers, (vii) the preparation, printing and delivery to the Underwriters of copies
of any Blue Sky Survey and any supplement thereto, (viii) the fees and expenses
of any transfer agent or registrar for the Securities, (ix) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by the NASD of the terms of the sale
of the Securities, (x) the fees and expenses incurred in connection with the
inclusion of the Securities in the Nasdaq National Market and (xi) the fees and
expenses of the Independent Underwriter.
(b) Termination of Agreement. If this Agreement is terminated by
the Lead Managers in accordance with the provisions of Section 5 hereof (other
than in accordance with paragraph (j) as a result of the failure of the U.S.
Underwriters to comply with their obligations under the U.S. Purchase Agreement)
or Section 9(a)(i) hereof, the Company shall reimburse the International
Managers for all of their out-of-pocket expenses incurred by the International
Managers in connection with this Agreement or the offering of the Securities
contemplated hereunder, including the reasonable fees and disbursements of
counsel and special counsel for the International Managers.
SECTION 5. Conditions of International Managers' Obligations. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement has 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
-22-
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 Closing
Time, of each of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, (ii)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Riegels, special British Virgin Islands counsel for
the Company, (iii) Mallinicks, special counsel and regulatory counsel for
the Company, (iv) Zepos & Zepos, special Greek counsel for the Company,
(v) ▇▇▇▇▇ Dutilh, special Dutch regulatory counsel for the Company, (vi)
Loyens & Volkmaars, special Dutch tax counsel for the Company, and (vii)
White & Case (Thailand) Limited, 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 letters for
each of the other International Managers to the effect set forth in
Exhibits A-1 through A-7 hereto, respectively.
(c) Opinion of Counsel for the International Managers. At Closing
Time, the Lead Managers shall have received the favorable opinion, dated
as of Closing Time, of each of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
International Managers, and Linklaters & Paines, special Thai counsel to
the International Managers, together with signed or reproduced copies of
such letter for each of the other International Managers as to such
matters as are reasonably requested by the Lead Managers.
(d) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectuses, any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, and the Lead Managers shall have received a
certificate of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company, dated as of
Closing Time, 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 com-
-23-
plied 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, are pending or
are contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Lead Managers shall have received from
PricewaterhouseCoopers Inc. a letter dated such date, in form and
substance satisfactory to the Lead Managers, together with signed or
reproduced copies of such letter for each of the other International
Managers containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in
the Registration Statement and the Prospectuses.
(f) Bring-down Comfort Letter. At Closing Time, the Lead Managers
shall have received from PricewaterhouseCoopers Inc. a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (e) of this Section, except that
the specified date referred to shall be a date not more than three
business days prior to Closing Time.
(g) Approval of Listing. At Closing Time, the Securities shall
have been approved for listing on the Amsterdam Stock Exchange and shall
have been approved for inclusion in the Nasdaq National Market, in each
case, subject only to official notice of issuance.
(h) No Objection. The NASD has confirmed that it has not raised
any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(i) Lock-up Agreements. At the date of this Agreement, the Lead
Managers shall have received an agreement substantially in the form of
Exhibit B hereto signed by the persons listed on Schedule C hereto.
(j) Purchase of Initial U.S. 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.
-24-
(k) Conditions to Purchase of International Option Securities. In
the event that the International Managers exercise their option provided
in Section 2(b) hereof to purchase all or any portion of the International
Option Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by the
Company or any subsidiary of the Company hereunder shall be true and
correct as of each Date of Delivery and, at the relevant Date of Delivery,
the Lead Managers shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(d) hereof remains true and correct as of such
Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion,
dated as of such Date of Delivery, of each of counsels listed in
Section 5(b), each in form and substance satisfactory to counsel for
the International Managers, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
International Managers, and of Linklaters & Paines, special Thai
counsel to the International Managers, each 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(c) hereof.
(iv) Bring-down Comfort Letter. A letter from
PricewaterhouseCoopers Inc., 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(f) 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.
-25-
(l) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the International Managers shall have been furnished
with such documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Lead
Managers and counsel for the International Managers.
(m) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of International Option Securities on a Date of Delivery which is
after the Closing Time, the obligations of the several International
Managers to purchase the relevant Option Securities, may be terminated by
the Lead Managers by notice to the Company at any time at or prior to
Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party
except as provided in 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 the International Managers. (1) The Company
agrees to indemnify and hold harmless 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 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 Pro-
-26-
spectuses (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(d) 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information 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).
(2) In addition to and without limitation of the Company's
obligation to indemnify DLJ as an Underwriter, the Company also agrees to
indemnify and hold harmless the Independent Underwriter and each person, if any,
who controls the Independent Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act (each, a "QIU Indemnified Party"), from
and against any and all loss, liability, claim, damage and expense whatsoever,
as incurred, incurred as a result of the Independent Underwriter's participation
as a
-27-
"qualified independent underwriter" within the meaning of Section (b)(15) of
Rule 2720 of the Conduct Rules of the NASD in connection with the offering of
the International Securities, including, without limitation, 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 with respect thereto; provided that (subject to Section 6(d) below)
any such settlement is effected with the written consent of the Company.
(b) Indemnification of Company, Directors and Officers. Each
International Manager severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a)(1) of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment or supplement thereto),
including the Rule 430A Information and the Rule 434 Information, if applicable,
or any preliminary international prospectus or the International Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such International Manager
through the Lead Managers expressly for use in the Registration Statement (or
any amendment or supplement thereto) or such preliminary prospectus or the
International Prospectus (or any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
6(a)(1) above, counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇
▇▇▇▇▇, and, in the case of parties indemnified pursuant to Section 6(b) above,
counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of
-28-
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; provided, that, if indemnity is sought
pursuant to Section 6(a)(2), then, in addition to the fees and expenses of such
counsel for the indemnified parties, the indemnifying party shall be liable for
the reasonable fees and expenses of not more than one counsel (in addition to
any local counsel) separate from its own counsel and that of the other
indemnified parties for the QIU 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 if, in the
reasonable judgment of the Independent Underwriter, there may be legal defenses
available to the QIU Indemnified Parties that are different from or additional
to those available to the other indemnified parties. Any such separate counsel
for the QIU Indemnified Parties shall be designated in writing by the
Independent Underwriter. 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.
(d) Settlement Without Consent if Failure To Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(1)(ii) or 6(a)(2) 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
-29-
party in accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the International Managers on the other hand from
the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the International Managers on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and
the International Managers on the other hand in connection with the offering of
the International Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
the International Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the total underwriting discount received
by the International Managers, in each case as set forth on the cover of the
International Prospectus, or, if Rule 434 is used, the corresponding location on
the Term Sheet, bear to the aggregate initial public offering price of the
International Securities as set forth on such cover.
The relative fault of the Company on the one hand and the
International Managers on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or by the International Managers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
-30-
The Company and the International Managers agree that it would not
be just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the International Managers were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, (i) no
International Manager shall be required to contribute any amount in excess of
the amount by which the total price at which the International Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such International Manager has otherwise
been required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission and (ii) the QIU Indemnified Parties shall not be
required to contribute an aggregate amount exceeding the fee received by the
Independent Underwriter pursuant to Section 2(e) of the U.S. Purchase Agreement.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
The International Managers' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Initial International
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
-31-
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 Venture 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 any QIU Indemnified Party, or by or on behalf of the
Company, and shall survive delivery of the Securities to the International
Managers.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Lead Managers may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the International
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Lead Managers, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission, the Amsterdam Stock Exchange or the Nasdaq National Market, or if
trading generally on the American Stock Exchange or 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
-32-
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.
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 the Lead Managers or
the Company shall have the right to postpone Closing Time or the relevant Date
of Delivery, as the case may be, for a period not exceeding seven days in order
to
-33-
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. 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 ▇▇▇▇▇
& Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated at North Tower, World
Financial Center, New York, New York 10281-1201, attention of [ ]; and notices
to the Company shall be directed to it at [ ], attention of [ ].
SECTION 12. Parties. This Agreement shall each inure to the benefit
of and be binding upon the International Managers and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the International Managers, the Independent Underwriter and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7, and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the International Managers, the Independent Underwriter and
the Company and their respective successors, and said controlling persons and
officers and directors, and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any International Manager shall be deemed to be a successor by reason merely of
such purchase.
SECTION 13. 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 14. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Agreement, the Company (i)
acknowledges that it has, by separate written instrument, designated and
appointed CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (and
any
-34-
successor entity), as its authorized agent upon which process may be served in
any suit or proceeding arising out of or relating to this Agreement that may be
instituted in any Federal or state court in the Borough of Manhattan, City of
New York, State of New York, or brought under the United States Federal or state
securities laws, and acknowledges that CT Corporation System has accepted such
designation, (ii) submits to the non-exclusive jurisdiction of any such court in
any such suit or proceeding and (iii) agrees that service of process upon CT
Corporation System and written notice of said service to the Company in
accordance with Section 11 shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding. The Company further
agrees to take any and all action, including the execution and filing of any and
all such documents and instruments, as may be necessary to continue such
designation and appointment of CT Corporation System in full force and effect so
long as any of the Class A Ordinary Shares shall be outstanding; provided,
however, that the Company may, by written notice to the Lead Managers, designate
such additional or alternative agent for service of process under this Section
14 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 or
(y) a corporate service company which acts as agent for service of process for
other persons in the ordinary course of its business. Such written notice shall
identify the name of such agent for process and the address of the office of
such agent for service of process in the Borough of Manhattan, City of New York,
State of New York.
To the extent that the Company or any of its properties, assets or
revenues may or may hereafter become entitled to, or have attributed to the
Company, any right of immunity, on the grounds of sovereignty or otherwise, from
any legal action, suit or proceeding, from the giving of any relief in any such
legal action, suit or proceeding, from setoff or counterclaim, from the
jurisdiction of any New York or U.S. federal court, from service of process,
from attachment upon or prior to judgment, from attachment in aid of execution
of judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any such
court in which proceedings may at any time be commenced, with respect to the
obligations and liabilities of the Company, or any other matter under or arising
out of or in connection with this Agreement or the International Purchase
Agreement, the Company hereby irrevocably and unconditionally waives such right,
and agrees not to plead or claim any such immunity, and consents to such relief
or enforcement.
-35-
SECTION 15. Judgment Currency. The Company agrees to indemnify each
International Manager, the Independent Underwriter and each person, if any, who
controls any International Manager or the Independent Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any
loss incurred by such party as a result of any judgment or order being given or
made against the Company for any U.S. dollar amount due under this Agreement and
such judgment or order being expressed and paid in a currency (the "Judgment
Currency") other than United States dollars and as a result of any variation as
between (i) the rate of exchange at which the United States dollar amount is
converted into the Judgment Currency for the purpose of such judgment or order
and (ii) the spot rate of exchange in The City of New York at which such party
on the date of payment of such judgment or order is able to purchase United
States dollars with the amount of the Judgment Currency actually received by
such party if such party had utilized such amount of Judgment Currency to
purchase United States dollars as promptly as practicable upon such party's
receipt thereof. The foregoing indemnity shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "spot rate of
exchange" shall include any premiums and costs of exchange payable in connection
with the purchase of, or conversion into, United States dollars.
SECTION 16. Effect of Headings. The Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 17. 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.
-36-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the International Managers and the Company in accordance with its terms.
Very truly yours,
MIH LIMITED
By
----------------------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
DLJ SECURITIES INTERNATIONAL
MEESPIERSON N.V.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By
--------------------------------------
Authorized Signatory
For themselves and as Lead Managers of the International Managers named in
Schedule A hereto.
SCHEDULE A
Number of
Initial
International
Name of International Manager Securities
▇▇▇▇▇▇▇ ▇▇▇▇▇ International.....................................
DLJ Securities International....................................
MeesPierson N.V................................................. _________
Total........................................................... 4,150,000
=========
Schedule A-1
SCHEDULE B
MIH LIMITED
4,150,000
Class A Ordinary Shares
(No Par Value)
1. The initial public offering price per share for the Securities,
determined as provided in Section 2, shall be $__________.
2. The purchase price per share for the International Securities to
be paid by the several International Managers shall be $__________, being
an amount equal to the initial public offering price set forth above less
$__________ per share; provided that the purchase price per share for any
International Option Securities purchased upon the exercise of the
over-allotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial International Securities but not
payable on the International Option Securities.
Schedule B-1
SCHEDULE C
List of Persons and Entities Subject
to Lock-Up
1. MIH (BVI) Limited
2. Johnnies Industrial Corporation Limited
3. SuperSport International Holdings Limited
4. Thomson Consumer Electronics, Inc.
5. ▇▇▇ ▇▇▇▇▇▇
6. ▇▇▇▇▇▇▇ ▇.▇. Stofberg
7. ▇.▇. ▇▇▇▇▇▇
8. ▇▇▇▇▇▇▇ ▇▇▇▇
9. ▇▇▇▇▇▇▇▇ ▇.▇. Hawinkels
10. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
11. ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
12. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
13. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
14. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
15. ▇▇▇▇▇ Volkwyn
Schedule C-1
Exhibit A-1
FORM OF OPINION OF CRAVATH, SWAINE & ▇▇▇▇▇
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & RIEGELS
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF MALLINICKS
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF ZEPOS & ZEPOS
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF ▇▇▇▇▇ DUTILH
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF LOYENS & VOLKMAARS
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF WHITE & CASE (THAILAND) LIMITED
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
▇-▇-▇
▇▇▇▇▇▇▇ ▇
, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
North Tower
World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
DLJ SECURITIES INTERNATIONAL
MEESPIERSON N.V.
c/o Merrill ▇▇▇▇▇ International
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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 initial public offering (the "Offering") of ordinary shares
("Shares") of the Company. The undersigned further understands that the Company
proposes 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 and the Underwriters to enter into the Purchase
Agreement and to proceed with the Offering, the under-
-2-
signed hereby agrees, that from the date hereof until the first anniversary of
the date of the Purchase Agreement, the undersigned will not, without the prior
written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, directly or indirectly, (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise dispose of or transfer (collectively, a "Covered
Sale") any Shares (other than any Shares registered in the Offering) or any
securities convertible into or exchangeable or exercisable for any Shares,
whether now owned or hereafter 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.
Notwithstanding the foregoing, on or after the date which is 181
days after the date of the Purchase Agreement, the undersigned may make a
Covered Sale of any Locked Shares, pursuant to a private sale exempt from
registration under the Securities Act and without engaging in any marketing
activities, other than to any broker dealer, bank, investment fund, investment
company, insurance company, trust fund, employee benefit plan or similar
financial institution; provided, however, that (x) the aggregate number of
transferees (including subsequent
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transferees) who hold Locked Shares prior to the first anniversary of the date
of the Purchase Agreement shall not exceed five and (y) each such transferee
(including any subsequent transferee) must agree in writing to be bound by the
terms of this agreement as if a party hereto.
Sincerely,
Name of Securityholder:
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(Print)
Signature:
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Name:
Title:
(if not natural person)