SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 2){1}
@Entertainment, Inc.
- -------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $.01 per share
- -------------------------------------------------------------------------------
(Title of Class of Securities)
045920 10 5
- -------------------------------------------------------------------------------
(CUSIP Number)
Terry Kasuga
Chase Enterprises
One Commercial Plaza, Hartford, Connecticut 06103-3585
(860) 549-1674
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 6, 1999 and August 9, 1999
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box / /.
Note: Schedules filed in paper format shall include a signed original and five
copies of this schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
(Continued on the following pages)
**FOOTNOTES**
{1} The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 or otherwise subject to the liabilities of that Section of the Act
but shall be subject to all other provisions of the Act (however, SEE the
NOTES).
<PAGE>
CUSIP No. 045920 10 5 13D Page 2 of 5 Pages
1 NAME OF REPORTING PERSONS
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Cheryl A. Chase
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.
7 SOLE VOTING POWER
NUMBER OF 0 shares
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 0 shares
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0 shares
10 SHARED DISPOSITIVE POWER
0 shares
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
AMENDMENT NO. 2 TO STATEMENT ON SCHEDULE 13D.
The reporting person hereby amends in part her Statement on Schedule 13D
dated February 11, 1999, as previously amended by Amendment No. 1 thereto
dated April 7, 1999, with respect to the common stock, par value $.01 per
share, of @Entertainment, Inc., a Delaware corporation (the "Company").
This amendment amends only those portions of the information previously
reported that have changed since the prior filing.
Item 5. Interest in Securities of the Issuer.
(a) As of the date hereof, the reporting person does not beneficially own
any securities of the Company.
(b) Not applicable.
(c) On August 6, 1999, pursuant to the Stockholders Agreement (Preference)
described in Item 6, the reporting person sold 1,000 Series B 12%
Cumulative Preference Shares to Bison Acquisition Corp. ("Bison") at a
purchase price per share equal to the liquidation preference of the share
plus all accrued and unpaid dividends thereon. The reporting person
received $1,062,794.52 in proceeds from this transaction.
On August 6, 1999, pursuant to the Stockholders Agreement (Common)
described in Item 6, Polish Investments Holding L.P. sold 9,703,000 shares
of Common Stock to Bison and received $184,357,000 in proceeds. The
reporting person was deemed to be a beneficial owner of these shares.
On August 6, 1999, pursuant to the Stockholders Agreement (Common)
described in Item 6, The Cheryl A. Chase Marital Trust, a trust of which
the reporting person and Kenneth N. Musen are the joint trustees and the
reporting person and her children are the beneficiaries, sold 733,000
shares of Common Stock to Bison and received $13,927,000 in proceeds.
On August 9, 1999, pursuant to the Stockholders Agreement (Common)
described in Item 6, the reporting person sold to Bison 1,000 warrants
exercisable for an aggregate of 110,000 shares of Common Stock at a net
purchase price of $990,000.
(d) Not applicable.
(e) The reporting person ceased to be a beneficial owner of more than 5
percent of the class of securities on August 6, 1999.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
On June 2, 1999, The Darland Trust, Polish Investments Holding L.P., Arnold
L. Chase, William Chase, Rhoda L. Chase and the reporting person
(individually the "Stockholder," collectively the "Stockholders") entered
into a Stockholders Agreement with United Pan-Europe Communications NV
("United") and Bison relating to the Common Stock of the Company (the
"Stockholders Agreement (Common)"). Under the Stockholders Agreement
(Common) the Stockholders agreed to validly tender their shares of Company
Common Stock for acceptance by Bison. In addition, the Stockholders granted
Bison (i) an irrevocable option to purchase these shares at a purchase
price of $19.00 per share and (ii) an irrevocable option to purchase
warrants at a price per warrant equal to $19.00 less the exercise price of
each security.
In addition to provisions relating to such transactions, the Stockholders
Agreement (Common) contains agreements whereby each Stockholder agrees to
vote the shares of Company Common Stock owned by the Stockholder in
accordance with terms and conditions specified by United, and to comply
with certain restrictions on the transfer of Company Securities.
On June 2, 1999, the Stockholders entered into a Stockholders Agreement
with United and Bison relating to Company Preference Shares (the
"Stockholders Agreement (Preference)"). Under the Stockholders Agreement
(Preference) the Stockholders granted Bison an irrevocable option to
purchase Series A Cumulative Preference Shares and Series B Cumulative
Preference Shares at a purchase price per share equal to the liquidation
preference of the share plus all accrued and unpaid dividends thereon.
The Stockholder Agreement (Preference) also contains agreements whereby
each Stockholder agrees to vote the Company Preference Shares (or the
Company Common Stock to the extent the holders of Company Preference Shares
are entitled to vote with the holders of Company Common Stock, whether as a
single class or otherwise) owned by the Stockholder in accordance with
terms and conditions specified by United, and to comply with certain
restrictions on the transfer of such Company Securities.
Item 7. Materials to be Filed as Exhibits.
(1) Stockholders Agreement (Common)
(2) Stockholders Agreement (Preference)
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
Dated: September 9, 1999
/s/ Cheryl A. Chase
Cheryl A. Chase
EXHIBIT 1
STOCKHOLDERS AGREEMENT
AGREEMENT dated as of June 2, 1999, among UNITED PAN-EUROPE
COMMUNICATIONS NV, a corporation organized under the laws of The
Netherlands ("Parent"), BISON ACQUISITION CORP., a Delaware corporation and
an indirect wholly owned subsidiary of Parent ("Sub"), and the other
parties signatory hereto (individually and collectively, the
"Stockholder").
WITNESSETH:
WHEREAS, prior to entering into this Agreement, Parent, Sub and Eagle,
Inc., a Delaware corporation (the "Company"), entered into an Agreement and
Plan of Merger (as such agreement may hereafter be amended from time to
time, the "Merger Agreement"; capitalized terms used and not defined herein
have the respective meanings ascribed to them in the Merger Agreement),
pursuant to which Sub will be merged with and into the Company (the
"Merger");
WHEREAS, in furtherance of the Merger, Parent and the Company desire
that as soon as practicable (and not later than five business days) after
the execution and delivery of the Merger Agreement, Sub commence a cash
tender offer to purchase all outstanding shares of Company Common Stock (as
defined in Section 1) including all of the Shares (as defined in Section
2); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Stockholder agree, and the
Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. For purposes of this Agreement:
(a) "Company Common Stock" shall mean at any time the common stock,
$.01 par value, of the Company.
(b) "Company Securities" shall mean the Existing Options and the
Existing Company Warrants, together with any Options or Company Warrants
acquired by the Stockholder after the date hereof and prior to the
termination of this Agreement, whether upon the exercise of options,
warrants or rights, the conversion or exchange of convertible or
exchangeable securities, or by means of purchase, dividend, distribution or
otherwise.
(c) "Existing Company Warrants" shall mean the Company Warrants set
forth opposite the Stockholder's name on Schedule I hereto.
(d) "Existing Options" shall mean the Options set forth opposite the
Stockholder's name on Schedule I hereto.
(e) "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other
entity.
2. Tender of Shares.
(a) Stockholder hereby agrees to validly tender (and not to withdraw)
pursuant to and in accordance with the terms of the Offer, in a timely
manner for acceptance by Sub in the Offer, the number of shares of Company
Common Stock (if any) set forth opposite the Stockholder's name on Schedule
I hereto (the "Existing Shares" and, together with any shares of Company
Common Stock acquired by the Stockholder after the date hereof and prior to
the termination of this Agreement whether upon the exercise of options,
warrants or rights, the conversion or exchange of convertible or
exchangeable securities, or by means of purchase, dividend, distribution or
otherwise, the "Shares") owned by it. The Stockholder hereby acknowledges
and agrees that Parent's obligation to accept for payment and pay for
Company Common Stock in the Offer, including the Shares, is subject to the
terms and conditions of the Offer. The Stockholder shall be entitled to
receive the highest price paid by Sub pursuant to the Offer. The Offer
Price shall not be less than $19.00, payable in cash.
(b) The Stockholder hereby agrees to permit Parent and Sub to publish
and disclose in the Offer Documents and, if approval of the stockholders of
the Company is required under applicable law, the Proxy Statement
(including all documents and schedules filed with the Securities and
Exchange Commission), its identity and ownership of Company Common Stock
and the nature of its commitments, arrangements and understandings under
this Agreement.
3. Provisions Concerning Company Common Stock. The Stockholder
hereby agrees that during the period commencing on the date hereof and
continuing until the first to occur of (i) the Effective Time, (ii) the
last date the Option is exercisable pursuant to Section 4 and (iii) the
termination date set forth in Section 9, at any meeting of the holders of
Company Common Stock, however called, or in connection with any written
consent of the holders of Company Common Stock, the Stockholder shall vote
(or cause to be voted) the Shares (if any) owned by the Stockholder whether
issued, heretofore owned or hereafter acquired, (i) in favor of the Merger,
the execution and delivery by the Company of the Merger Agreement and the
approval of the terms thereof and each of the other actions contemplated by
the Merger Agreement and this Agreement and any actions required in
furtherance thereof and hereof; (ii) against any action or agreement that
would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company under the
Merger Agreement; and (iii) except as otherwise agreed to in writing in
advance by Parent, against the following actions (other than the Merger and
the transactions contemplated by the Merger Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving the Company or its subsidiaries; (B) a
sale, lease or transfer of a material amount of assets of the Company or
its subsidiaries, or a reorganization, recapitalization, dissolution or
liquidation of the Company or its subsidiaries; (C) (1) any change in a
majority of the persons who constitute the board of directors of the
Company; (2) any change in the present capitalization of the Company or any
amendment of the Company's Certificate of Incorporation or By-laws; (3) any
other material change in the Company's corporate structure or business; or
(4) any other action involving the Company or its subsidiaries which is
intended, or could reasonably be expected, to impede, interfere with,
delay, postpone, or materially adversely affect the Merger and the
transactions contemplated by this Agreement and the Merger Agreement. The
Stockholder shall not enter into any agreement or understanding with any
Person or entity the effect of which would be to violate the provisions and
agreements contained in this Section 3.
4. Stock Option; Certain Purchase Obligations.
(a) The Stockholder hereby grants to Sub (x) an irrevocable option
(the "Stock Option") to purchase the Shares at a purchase price per Share
(the "Purchase Price") equal to $19.00, payable in cash, and (y) an
irrevocable option (the "Securities Option" and, together with the Stock
Option, the "Option") to purchase the Company Securities at a price per
Company Security equal to the Purchase Price LESS the exercise price of
such Company Security, payable in cash, in each case until the termination
date set forth in Section 9. Until the termination date set forth in
Section 9, if (i) the Offer is terminated, abandoned or withdrawn by Parent
or Sub (whether due to the failure of any of the conditions thereto or
otherwise), (ii) the Offer is consummated but the Shares have not been
validly tendered into the Offer or (iii) the Merger Agreement is terminated
in accordance with its terms, the Option shall, in any such case, become
exercisable, in whole but not in part, upon the first to occur of any such
event and remain exercisable, in whole but not in part, until the date
which is 90 days after the date of the occurrence of such event, but shall
not be exercisable in each case unless: (x) all waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), required for the purchase of Shares and/or Company Securities, as
the case may be, upon the exercise of the Option shall have expired or been
waived and all other necessary governmental consents required for Sub to
purchase Shares and/or Company Securities, as the case may be, upon the
exercise of the Option, including, but not limited to, all necessary
approvals of the Polish Anti-Monopoly Commission, and (y) there shall not
then be in effect any preliminary or final injunction or other order issued
by any court or governmental, administrative or regulatory agency or
authority prohibiting the exercise of the Option pursuant to this
Agreement. Provided that this Agreement has not been terminated, in the
event that the Option is not exercisable because the circumstances
described in clauses (x) and (y) have not occurred, then the Option shall
be exercisable for the 90-day period commencing on the date that the
circumstances set forth in clauses (x) and (y) have occurred. In the event
that Parent wishes to exercise the Option, Parent shall send a written
notice to the Stockholder identifying the place for the closing of such
purchase at least three business days prior to such closing.
(b) In the event that Sub shall have purchased Shares purchased in
the Offer in an amount necessary to satisfy the Minimum Condition in
accordance with the terms of the Merger Agreement, Sub shall thereafter
purchase all of the Company Securities then held by the Stockholder no
later than the date which is the third business day after the date of such
consummation, at a purchase price per Company Security equal to the Offer
Price for the Shares underlying such Company Security less the exercise
price of such Company Security.
5. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to Parent as follows:
(a) Ownership of Shares. The Stockholder is the record and
beneficial owner of the number of Shares and Company Securities set forth
opposite such Stockholder's name on Schedule I hereto. On the date hereof,
the Existing Shares, Existing Options and Existing Company Warrants set
forth opposite such Stockholder's name on Schedule I hereto constitute all
of the Shares and Company Securities owned beneficially or of record by
such Stockholder. The Stockholder has sole voting power and sole power to
issue instructions with respect to the matters set forth in Sections 2, 3
and 4 hereof, sole power of disposition, sole power of conversion, sole
power to demand appraisal rights and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of
the Existing Shares, Existing Options and Existing Company Warrants set
forth opposite Stockholder's name on Schedule I hereto, with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) Power; Binding Agreement. The Stockholder has the legal
capacity, power and authority to enter into and perform all of the
Stockholder's obligations under this Agreement. The execution, delivery
and performance of this Agreement by such Stockholder will not violate any
other agreement to which the Stockholder is a party including, without
limitation, any voting agreement, stockholders agreement or voting trust.
This Agreement has been duly and validly executed and delivered by the
Stockholder and constitutes a valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance with its
terms. There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which the Stockholder is trustee whose
consent is required for the execution and delivery of this Agreement or the
consummation by the Stockholder of the transactions contemplated hereby.
(c) No Conflicts. Except for (i) filings and approvals under the HSR
Act or any other applicable Laws related to competition, antitrust,
monopoly or similar matters, (A) no filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by such
Stockholder and the performance by such Stockholder of its obligations
hereunder and (B) none of the execution and delivery of this Agreement by
such Stockholder, the performance by such Stockholder of its obligations
hereunder or compliance by such Stockholder with any of the provisions
hereof shall (1) conflict with or result in any breach of any applicable
organizational documents applicable to such Stockholder, or (2) violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to such Stockholder or any of such Stockholder's properties or
assets.
(d) No Finder's Fees. Except as disclosed in the Merger Agreement,
no broker, investment banker, financial advisor or other person is entitled
to any broker's finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated hereby based
upon arrangements made by or on behalf of such Stockholder.
(e) No Encumbrances. The Stockholder's Shares and Company Securities
and the certificates representing such Shares and Company Securities are
now, and at all times during the term hereof will be, held by such
Stockholder, or by a nominee or custodian for the benefit of such
Stockholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever, except for any such encumbrances or proxies
arising hereunder. The transfer by the Stockholder of its Shares and
Company Securities to Sub in the Offer or hereunder shall pass to and
unconditionally vest in Sub good and valid title to all such Shares and
Company Securities, free and clear of all claims, liens, restrictions,
security interests, pledges, limitations and encumbrances whatsoever.
(f) Reliance by Parent. The Stockholder understands and acknowledges
that Parent is entering into, and causing Sub to enter into, the Merger
Agreement in reliance upon the Stockholder's execution and delivery of this
Agreement.
6. Covenants of the Stockholder. The Stockholder covenants and
agrees as follows:
(a) No Solicitation. Beginning on the date hereof and ending on the
last date the Option is exercisable pursuant to Section 4 hereof, the
Stockholder shall not, in its capacity as such, directly or indirectly,
initiate, solicit (including by way of furnishing information), encourage
or respond to or take any other action knowingly to facilitate, any
inquiries or the making of any proposal by any person or entity (other than
Parent or any affiliate of Parent) with respect to the Company that
constitutes or reasonably may be expected to lead to, an Acquisition
Proposal, or enter into or maintain or continue discussions or negotiate
with any person or entity in furtherance of such inquiries or to obtain any
Acquisition Proposal, or agree to or endorse any Acquisition Proposal, or
authorize or permit any Person or entity acting on behalf of the
Stockholder to do any of the foregoing. If the Stockholder receives any
inquiry or proposal regarding any Acquisition Proposal, the Stockholder
shall promptly inform Parent of that inquiry or proposal and the details
thereof.
(b) Restriction on Transfer, Proxies and Non-Interference. Beginning
on the date hereof and ending on the last date the Stock Option is
exercisable pursuant to Section 4 hereof, except as expressly contemplated
by this Agreement, the Stockholder shall not (i) directly or indirectly,
offer for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for
sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of such Stockholder's Shares and Company
Securities or any interest therein; provided that the Stockholder may
transfer any Shares and/or Company Securities to any Affiliate of the
Stockholder; provided, further that such transferee shall have become a
party to this Agreement (or an agreement identical to this Agreement) and
shall be deemed to make all representations and warranties set forth in
paragraph 5 hereof on the date of the transfer of such Shares and/or
Company Securities; (ii) grant any proxies or powers of attorney (except
for powers of attorney granted to Affiliates of the Stockholder solely for
administrative purposes and which require the holder thereof to vote any
and all Shares subject to such powers in accordance with this Agreement),
deposit any Shares and/or Company Securities into a voting trust or enter
into a voting agreement with respect to any Shares and/or Company
Securities; or (iii) take any action that would make any representation or
warranty of such Stockholder contained herein untrue or incorrect or have
the effect of preventing the Stockholder from performing the Stockholder's
obligations under this Agreement.
(c) Waiver of Appraisal Rights. The Stockholder hereby irrevocably
waives any rights of appraisal or rights to dissent from the Merger that
the Stockholder may have.
(d) Stop Transfer; Changes in Shares. The Stockholder agrees with,
and covenants to, Parent that the Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate
or uncertificated interest representing any of the Stockholder's Shares or
Company Securities, unless such transfer is made in compliance with this
Agreement. In the event of a stock dividend or distribution, or any change
in the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term
"Shares" shall be deemed to refer to and include the Shares as well as all
such stock dividends and distributions and any shares into which or for
which any or all of the Shares may be changed or exchanged and the Purchase
Price shall be appropriately adjusted. The Stockholder shall be entitled
to receive any cash dividend paid by the Company during the term of this
Agreement until Shares are purchased in the Offer or hereunder.
7. Fiduciary Duties. Notwithstanding anything in this Agreement to
the contrary, the covenants and agreements set forth herein shall not
prevent the Stockholder (or any of its designees) from taking any action,
subject to the applicable provisions of the Merger Agreement, while acting
in his or her (or such designee's) capacity as a director of the Company.
8. Miscellaneous.
(a) Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute
and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective,
in the most expeditious manner practicable, the transactions contemplated
by this Agreement; provided that no party shall be required to incur
unreasonable expense in complying with this paragraph.
(b) Entire Agreement. This Agreement and the Merger Agreement
constitute the entire agreement between the parties with respect to the
subject matter hereof and supersedes all other prior agreements and
understanding, bot written and oral, between the parties with respect to
the subject matter hereof.
(c) Certain Events. The Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Stockholder's Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or
otherwise, including, without limitation, such Stockholder's heirs,
guardians, administrators or successors. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor in the event such
transferee does not perform such obligations.
(d) Assignment. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other party
provided that Parent may assign, at its sole discretion, its rights and
obligations hereunder to any direct or indirect wholly-owned subsidiary of
Parent, although no such assignment shall relieve Parent of its obligations
hereunder if such assignee does not perform such obligations.
(e) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except
upon the execution and delivery of a written agreement executed by the
relevant parties hereto.
(f) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly received if so given) by hand delivery,
telegram, telex or telecopy, or by mail (registered or certified mail,
postage prepaid, return receipt requested) or by any courier service, such
as Federal Express, providing proof of delivery. All communications
hereunder shall be delivered to the respective parties at the following
addresses:
If to the Stockholders: At the addresses set forth on Schedule I
hereto.
copy to: Allen & Overy
10 East 50th Street
28th Floor
New York City, NY 10022
Attention: Managing Partner
Facsimile: +212 610 6399
If to Parent or Sub:
c/o United Pan-Europe Communications NV
Fred. Roeskestraat 123
1076 EE Amsterdam
The Netherlands
Attention: Anton H.E. van Voskujlen
Facsimile: +31 20 778 9817
copy to: White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attention: William F. Wynne, Jr., Esq.
Facsimile: +212 354 8113
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
(g) Severability. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision
or portion of any provision had never been contained herein.
(h) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained
in this Agreement will cause the other party to sustain damages for which
it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity; provided that no party shall be liable for
any consequential or punitive damages or damages for lost profits or lost
opportunities, whether or not such damages, profits or opportunities were
foreseen or foreseeable by such party, except to the extent such damages
are the result of a breach of this Agreement arising out of the gross
negligence or willful misconduct of such party.
(i) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
(j) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof shall not
constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such compliance.
(k) No Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any person or
entity who or which is not a party hereto.
(l) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(m) Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of any United States District Court or any court of
the State of Delaware, in each case located in the City of Wilmington,
Delaware, in any action, suit or proceeding arising in connection with this
Agreement, and agrees that any such action, suit or proceeding may be
brought in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein); provided, however,
that such consent to jurisdiction is solely for the purpose referred to in
this paragraph (m) and shall not be deemed to be a general submission to
the jurisdiction of said Courts or in the State of Delaware other than for
such purposes. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN CONNECTION WITH ANY SUCH ACTION, SUIT OR PROCEEDING.
(n) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(o) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
9. Termination. This Agreement shall terminate, and no party shall
have any rights or obligations hereunder and this Agreement shall become
null and void and have no effect upon the fifth day after the earlier of
(1) the expiration of the 90-day exercise period set forth in Section 4
hereof, (2) at the Stockholders' option the valid termination of the Merger
Agreement by the Company pursuant to Section 10.3 thereof or (3) the date
which is 180 days after the date hereof.
10. Binding Agreement. All authority and rights herein conferred or
agreed to be conferred by the Stockholder shall survive the death or
incapacity of the Stockholder. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs,
personal representatives, successors and assigns.
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By: /s/ Mark Schneider
---------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By:
---------------------------------
Name:
Title:
POLISH INVESTMENTS HOLDING L.P.
By: CHASE POLISH ENTERPRISES, INC.
General Partner
By: /s/ Cheryl A. Chase
--------------------------------
Name: Cheryl A. Chase
Title: Executive Vice President
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By:
---------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By: /s/ Anton Van-VosKuijlen
---------------------------------
Name:
Title:
POLISH INVESTMENTS HOLDING L.P.
By: CHASE POLISH ENTERPRISES, INC.
General Partner
By: /s/ Cheryl A. Chase
--------------------------------
Name: Cheryl A. Chase
Title: Executive Vice President
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
Name and Address Number of Shares and/or
of Stockholder Company Securities Owned
- ------------------------------------------------------------------------------
<S> <C>
Polish Investments Holding L.P. 9,703,000 shares of Company common stock
c/o Chase Enterprises
280 Trumbull Street
Hartford, Connecticut 06103
</TABLE>
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By: /s/ Mark Schneider
---------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By:
---------------------------------
Name:
Title:
CHERYL ANNE CHASE MARITAL TRUST
By: /s/ Kenneth Musen, Trustee
--------------------------------
Name: Kenneth M. Musen
Title: Trustee
By: /s/ Cheryl A. Chase
--------------------------------
Name: Cheryl A. Chase
Title: Trustee
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By:
---------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By: /s/ Anton Van-VosKuijlen
---------------------------------
Name:
Title:
CHERYL ANNE CHASE MARITAL TRUST
By: /s/ Kenneth Musen, Trustee
--------------------------------
Name: Kenneth M. Musen
Title: Trustee
By: /s/ Cheryl A. Chase
--------------------------------
Name: Cheryl A. Chase
Title: Trustee
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
Name and Address Number of Shares and/or
of Stockholder Company Securities Owned
- ------------------------------------------------------------------------------
<S> <C>
Cheryl Anne Chase Marital Trust 733,000 shares of Company common stock
c/o Chase Enterprises
280 Trumbull Street
Hartford, Connecticut 06103
</TABLE>
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By: /s/ Mark Schneider
---------------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By:
---------------------------------------
Name:
Title:
WILLIAM CHASE
By: /s/ Cheryl A. Chase
--------------------------------------
Name: Cheryl A. Chase as Power of
Attorney for Arnold L. Chase
Title: Custodian and Parent of
Minor Child
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By:
---------------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By: /s/ Anton Van-VosKuijlen
---------------------------------------
Name:
Title:
WILLIAM CHASE
By: /s/ Cheryl A. Chase
--------------------------------------
Name: Cheryl A. Chase as Power of
Attorney for Arnold L. Chase
Title: Custodian and Parent of
Minor Child
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
Name and Address Number of Shares and/or
of Stockholder Company Securities Owned
- ------------------------------------------------------------------------------
<S> <C>
William Chase 3,000 shares of Company common stock
c/o Chase Enterprises
280 Trumbull Street
Hartford, Connecticut 06103
</TABLE>
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By: /s/ Mark Schneider
---------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By:
---------------------------------
Name:
Title:
RHODA L. CHASE
By: /s/ Rhoda L. Chase
--------------------------------
Name: Rhoda L. Chase
Title: Individual
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By:
---------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By: /s/ Anton Van-VosKuijlen
---------------------------------
Name:
Title:
RHODA L. CHASE
By: /s/ Rhoda L. Chase
--------------------------------
Name: Rhoda L. Chase
Title: Individual
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
Name and Address Number of Shares and/or
of Stockholder Company Securities Owned
- ------------------------------------------------------------------------------
<S> <C>
Rhoda L. Chase 505,000 shares of Company common stock
c/o Chase Enterprises 1,000 warrants
280 Trumbull Street
Hartford, Connecticut 06103
</TABLE>
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By:
---------------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By:
---------------------------------------
Name:
Title:
ARNOLD L. CHASE
By: /s/ Cheryl A. Chase
--------------------------------------
Name: Cheryl A. Chase as Power of
Attorney for Arnold L. Chase
Title: Individual
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
Name and Address Number of Shares and/or
of Stockholder Company Securities Owned
- ------------------------------------------------------------------------------
<S> <C>
Arnold L. Chase 2,000 warrants
c/o Chase Enterprises
280 Trumbull Street
Hartford, Connecticut 06103
</TABLE>
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By:
---------------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By:
---------------------------------------
Name:
Title:
CHERYL ANNE CHASE
By: /s/ Cheryl A. Chase
--------------------------------------
Name: Cheryl A. Chase
Title: Individual
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
Name and Address Number of Shares and/or
of Stockholder Company Securities Owned
- ------------------------------------------------------------------------------
<S> <C>
Cheryl A. Chase 1,000 warrants
c/o Chase Enterprises
280 Trumbull Street
Hartford, Connecticut 06103
</TABLE>
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By:
---------------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By:
---------------------------------------
Name:
Title:
THE DARLAND TRUST
By: /s/ Huw Salter By: /s/ David N. Allison
-------------------------- ---------------------------------------
Authorized Signatory Authorized Signatory
Rothschild Trust Rothschild Trust Cayman Limited
Guernsey Limited and Director - Rothschild Trust
Rothschild Trust Guernsey Limited
Cayman Limited
2 June 1999
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
Name and Address Number of Shares and/or
of Stockholder Company Securities Owned
- ------------------------------------------------------------------------------
<S> <C>
The Darland Trust 1,000 warrants
c/o Chase Enterprises
280 Trumbull Street
Hartford, Connecticut 06103
</TABLE>
EXHIBIT 2
STOCKHOLDERS AGREEMENT
AGREEMENT dated as of June 2, 1999, among UNITED PAN-EUROPE
COMMUNICATIONS NV, a corporation organized under the laws of The
Netherlands ("Parent"), BISON ACQUISITION CORP., a Delaware corporation and
an indirect wholly owned subsidiary of Parent ("Sub"), and the other
parties signatory hereto (individually and collectively, the
"Stockholder").
WITNESSETH:
WHEREAS, prior to entering into this Agreement, Parent, Sub and Eagle,
Inc., a Delaware corporation (the "Company"), entered into an Agreement and
Plan of Merger (as such agreement may hereafter be amended from time to
time, the "Merger Agreement"; capitalized terms used and not defined herein
have the respective meanings ascribed to them in the Merger Agreement),
pursuant to which Sub will be merged with and into the Company (the
"Merger");
WHEREAS, in furtherance of the Merger, Parent and the Company desire
that as soon as practicable (and not later than five business days) after
the execution and delivery of the Merger Agreement, Sub commence a cash
tender offer to purchase all outstanding shares of Company Common Stock (as
defined in Section 1) including all of the Shares (as defined in Section
2);
WHEREAS, as a condition to entering into the Merger Agreement, Parent
has required that all of the holders of the Company Preference Shares agree
to sell such Company Preference Shares to Parent; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Stockholder agree, and the
Stockholder has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. For purposes of this Agreement:
(a) "Company Common Stock" shall mean at any time the common stock,
$.01 par value, of the Company.
(b) "Company Preference Shares" shall mean the Series A Cumulative
Preference Shares of the Company, par value $.01 per share and the Series B
Cumulative Preference Shares of the Company, par value $.01 per share.
(c) "Existing Shares" shall mean the Company Preference Shares set
forth on Schedule I hereto.
(d) "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other
entity.
(e) "Shares" shall mean the Existing Shares, together with any other
Company Preference Shares, in each case in which such Company Preference
Shares were acquired by the Stockholder after the date hereof and prior to
the termination of this Agreement, whether upon the exercise of options,
warrants or rights, the conversion or exchange of convertible or
exchangeable securities, or by means of purchase, dividend, distribution or
otherwise.
2. Provisions Concerning Company Preference Shares. (a) The
Stockholder hereby agrees that during the period commencing on the date
hereof and continuing until the first to occur of (i) the Effective Time,
(ii) the last date the Stock Option is exercisable pursuant to Section 3
and (iii) the termination date set forth in Section 8, at any meeting of
the holders of Company Preference Shares (or of the Company Common Stock,
to the extent the holders of Company Preference Shares are entitled to vote
as with the holders of Company Common Stock, whether as a single class or
otherwise), however called, or in connection with any written consent of
the holders of Company Preference Shares, the Stockholder shall vote (or
cause to be voted) the Shares owned by the Stockholder whether issued,
heretofore owned or hereafter acquired, (i) in favor of the Merger, the
execution and delivery by the Company of the Merger Agreement and the
approval of the terms thereof and each of the other actions contemplated by
the Merger Agreement and this Agreement and any actions required in
furtherance thereof and hereof, (ii) against any action or agreement that
would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company under the
Merger Agreement; and (iii) except as otherwise agreed to in writing in
advance by Parent, against the following actions (other than the Merger and
the transactions contemplated by the Merger Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving the Company or its subsidiaries; (B) a
sale, lease or transfer of a material amount of assets of the Company or
its subsidiaries, or a reorganization, recapitalization, dissolution or
liquidation of the Company or its subsidiaries; (C) (1) any change in a
majority of the persons who constitute the board of directors of the
Company; (2) any change in the present capitalization of the company or any
amendment of the Company's Certificate of Incorporation or By-laws; (3) any
other material change in the Company's corporate structure or business; or
(4) any other action involving the Company or its subsidiaries which is
intended, or could reasonably be expected, to impede, interfere with,
delay, postpone, or materially adversely affect the Merger and the
transactions contemplated by this Agreement and the Merger Agreement. The
Stockholder shall not enter into any agreement or understanding with any
person or entity the effect of which would be to violate the provisions and
agreements contained in this Section 2.
(b) The Stockholder hereby agrees to permit Parent and Sub to publish
and disclose in the Offer Documents and, if approval of the stockholders of
the Company is required under applicable law, the Proxy Statement
(including all documents and schedules filed with the Securities and
Exchange Commission) its identity and ownership of Company Preference
Shares and the nature of its commitments, arrangements and understandings
under this Agreement.
3. Purchase Right. (a) The Stockholder hereby grants to Sub an
irrevocable option (the "Stock Option") to purchase the Shares at a
purchase price per Share (the "Purchase Price") equal to the liquidation
preference of such share plus all accrued and unpaid dividends thereon on
the date of purchase, payable in cash, until the termination date set forth
in Section 8. Until the termination date set forth in Section 8, if (i)
the Offer is terminated, abandoned or withdrawn by Parent or Sub (whether
due to the failure of any of the conditions thereto or otherwise), (ii) the
Offer is consummated but Sub has not accepted for payment and paid for the
Shares or (iii) the Merger Agreement is terminated in accordance with its
terms, the Stock Option shall, in any such case, become exercisable, in
whole but not in part, upon the first to occur of any such event and remain
exercisable, in whole but not in part, until the date which is 90 days
after the date of the occurrence of such event, but shall not be
exercisable in each case unless: (x) all waiting periods under the Hart-
Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), required for the purchase of Shares upon the exercise of the Stock
Option shall have expired or been waived and all other necessary
governmental consents required for Sub to purchase Shares upon the exercise
of the Stock Option, including, but not limited to, all necessary approvals
of the Polish Anti-Monopoly Commission, and (y) there shall not then be in
effect any preliminary or final injunction or other order issued by any
court or governmental, administrative or regulatory agency or authority
prohibiting the exercise of the Stock Option pursuant to this Agreement.
Provided that this Agreement has not been terminated, in the event that the
Stock Option is not exercisable because the circumstances described in
clauses (x) and (y) have not occurred, then the Stock Option shall be
exercisable for the 90-day period commencing on the date that the
circumstances set forth in clauses (x) and (y) have occurred. In the event
that Parent wishes to exercise the Stock Option, Parent shall send a
written notice to the Stockholder identifying the place for the closing of
such purchase at least three business days prior to such closing.
(b) In the event that Sub shall have purchased Shares of Company
Common Stock in the Offer in an amount necessary to satisfy the Minimum
Condition in accordance with the terms of the Merger Agreement, Sub shall
thereafter purchase all of the Shares then held by the Stockholder no later
than the date which is the third business day after the date of such
consummation at a purchase price per Share equal to the liquidation
preference of such share plus all accrued and unpaid dividends thereon on
the date of purchase.
4. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to Parent as follows:
(a) Ownership of Shares. The Stockholder is the record and
beneficial owner of the number of Shares set forth opposite such
Stockholder's name on Schedule I hereto. On the date hereof, the Existing
Shares set forth opposite such Stockholder's name on Schedule I hereto
constitute all of the Shares owned beneficially or of record by such
Stockholder. The Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Sections 2 and 3
hereof, sole power of disposition, sole power of conversion, sole power to
demand appraisal rights and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of the Existing
Shares set forth opposite Stockholder's name on Schedule I hereto, with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) Power; Binding Agreement. The Stockholder has the legal
capacity, power and authority to enter into and perform all of the
Stockholder's obligations under this Agreement. The execution, delivery
and performance of this Agreement by such Stockholder will not violate any
other agreement to which the Stockholder is a party including, without
limitation, any voting agreement, stockholders agreement or voting trust.
This Agreement has been duly and validly executed and delivered by the
Stockholder and constitutes a valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance with its
terms. There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which the Stockholder is trustee whose
consent is required for the execution and delivery of this Agreement or the
consummation by the Stockholder of the transactions contemplated hereby.
(c) No Conflicts. Except for (i) filings and approvals under the HSR
Act or any other applicable Laws related to competition, antitrust,
monopoly or similar matters, (A) no filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by such
Stockholder and the performance by such Stockholder of its obligations
hereunder and (B) none of the execution and delivery of this Agreement by
such Stockholder, the performance by such Stockholder of its obligations
hereunder or compliance by such Stockholder with any of the provisions
hereof shall (1) conflict with or result in any breach of any applicable
organizational documents applicable to such Stockholder, or (2) violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to such Stockholder or any of such Stockholder's properties or
assets.
(d) No Finder's Fees. Except as disclosed in the Merger Agreement,
no broker, investment banker, financial advisor or other person is entitled
to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated hereby based
upon arrangements made by or on behalf of such Stockholder.
(e) No Encumbrances. The Stockholder's Shares and the certificates
representing such Shares are now, and at all times during the term hereof
will be, held by such Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder. The transfer by the Stockholder
of its Shares to Sub in the Offer or hereunder shall pass to and
unconditionally vest in Sub good and valid title to all such Shares, free
and clear of all claims, liens, restrictions, security interests, pledges,
limitations and encumbrances whatsoever.
(f) Reliance by Parent. The Stockholder understands and acknowledges
that Parent is entering into, and causing Sub to enter into, the Merger
Agreement in reliance upon the Stockholder's execution and delivery of this
Agreement.
5. Covenants of the Stockholder. The Stockholder covenants and
agrees as follows:
(a) No Solicitation. Beginning on the date hereof and ending on the
last date the Option is exercisable pursuant to Section 3 hereof, the
Stockholder shall not, in its capacity as such, directly or indirectly,
initiate, solicit (including by way of furnishing information), encourage or
respond to or take any other action knowingly to facilitate, any inquiries or
the making of any proposal by any person or entity (other than Parent or any
affiliate of Parent) with respect to the Company that constitutes or reasonably
may be expected to lead to, an Acquisition Proposal, or enter into or maintain
or continue discussions or negotiate with any person or entity in furtherance of
such inquiries or to obtain any Acquisition Proposal, or agree to or endorse any
Acquisition Proposal, or authorize or permit any Person or entity acting on
behalf of the Stockholder to do any of the foregoing. If the Stockholder
receives any inquiry or proposal regarding any Acquisition Proposal, the
Stockholder shall promptly inform Parent of that inquiry or proposal and the
details thereof.
(b) Restriction on Transfer, Proxies and Non-Interference. Beginning on
the date hereof and ending on the last date the Stock Option is exercisable
pursuant to Section 4 hereof, except as expressly contemplated by this
Agreement, the Stockholder shall not (i) directly or indirectly, offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of such
Stockholder's Shares or any interest therein; provided that the Stockholder may
transfer any Shares to any Affiliate of the Stockholder; provided, further that
such transferee shall have become a party to this Agreement (or an agreement
identical to this Agreement) and shall be deemed to make all representations and
warranties set forth in paragraph 4 hereof on the date of such transfer of
Shares; (ii) grant any proxies or powers of attorney (except for powers of
attorney granted to Affiliates of the Stockholder for purely administrative
purposes and which require the holder thereof to vote any and all Shares subject
to such powers in accordance with this Agreement), deposit any Shares into a
voting trust or enter into a voting agreement with respect to any Shares; or
(iii) take any action that would make any representation or warranty of such
Stockholder contained herein untrue or incorrect or have the effect of
preventing the Stockholder from performing the Stockholder's obligations under
this Agreement.
(c) Waiver of Appraisal Rights. The Stockholder hereby irrevocably waives
any rights of appraisal or rights to dissent from the Merger that the
Stockholder may have.
(d) Stop Transfer; Changes in Shares. The Stockholder agrees with, and
covenants to, Parent that the Stockholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Stockholder's Shares, unless
such transfer is made in compliance with this Agreement. In the event of a
stock dividend or distribution, or any change in the Company Preference Shares
by reason of any stock dividend, split-up, recapitalization, combination,
exchange of shares or the like, the term "Shares" shall be deemed to refer to
and include the Shares as well as all such stock dividends and distributions and
any shares into which or for which any or all of the Shares may be changed or
exchanged and the Purchase Price shall be appropriately adjusted. The
Stockholder shall be entitled to receive any cash dividend paid by the Company
during the term of this Agreement until Shares are purchased in the Offer or
hereunder.
6. Fiduciary Duties. Notwithstanding anything in this Agreement to the
contrary, the covenants and agreements set forth herein shall not prevent of the
Stockholder (or any of its designees) from taking any action, subject to the
applicable provisions of the Merger Agreement, while acting in his or her (or
such designee's) capacity as a director of the Company.
7. Miscellaneous.
(a) Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute
and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective,
in the most expeditious manner practicable, the transactions contemplated
by this Agreement; provided that no party shall be required to incur an
unreasonable expense in complying with this paragraph.
(b) Entire Agreement. This Agreement and the Merger Agreement
constitute the entire agreement between the parties with respect to the
subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to
the subject matter hereof.
(c) Certain Events. The Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Stockholder's Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or
otherwise, including, without limitation, such Stockholder's heirs,
guardians, administrators or successors. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor in the event such
transferee does not perform such obligations.
(d) Assignment. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other party
provided that Parent may assign, at its sole discretion, its rights and
obligations hereunder to any direct or indirect wholly-owned subsidiary of
Parent, although no such assignment shall relieve Parent of its obligations
hereunder if such assignee does not perform such obligations.
(e) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except
upon the execution and delivery of a written agreement executed by the
relevant parties hereto.
(f) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly received if so given) by hand delivery,
telegram, telex or telecopy, or by mail (registered or certified mail,
postage prepaid, return receipt requested) or by any courier service, such
as Federal Express, providing proof of delivery. All communications
hereunder shall be delivered to the respective parties at the following
addresses:
If to the Stockholders: At the addresses set forth on Schedule I
hereto.
copy to: Allen & Overy
10 East 50th Street
28th Floor
New York City, NY 10022
Attention: Managing Partner
Facsimile: +212 610 6399
If to Parent or Sub: c/o United Pan-Europe Communications NV
Fred. Roeskestraat 123
1076 EE Amsterdam
The Netherlands
Attention: Anton H.E. van Voskuijlen
Facsimile: +31 20 778 9817
copy to: White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attention: William F. Wynne, Jr., Esq.
Facsimile: +212 354 8113
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
(g) Severability. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision
or portion of any provision had never been contained herein.
(h) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained
in this Agreement will cause the other party to sustain damages for which
it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity; provided that no party shall be liable for
any consequential or punitive damages or damages for lost profits or lost
opportunities, whether or not such damages, profits or opportunities were
foreseen or foreseeable by such party, except to the extent such damages
are the result of a breach of this Agreement arising out of the gross
negligence or willful misconduct of such party.
(i) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
(j) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof shall not
constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such compliance.
(k) No Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any person or
entity who or which is not a party hereto.
(l) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(m) Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the United States District Court or any court of
the State of Delaware, in each case located in the City of Wilmington,
Delaware, in any action, suit or proceeding arising in connection with this
Agreement, and agrees that any such action, suit or proceeding may be
brought in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein); provided, however,
that such consent to jurisdiction is solely for the purpose referred to in
this paragraph (m) and shall not be deemed to be a general submission to
the jurisdiction of said Courts or in the State of Delaware other than for
such purposes. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN CONNECTION WITH ANY SUCH ACTION, SUIT OR PROCEEDING.
(n) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(o) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
8. Termination. This Agreement shall terminate, and no party shall
have any rights or obligations hereunder and this Agreement shall become
null and void and have no effect upon the fifth day after the earlier of
(1) the expiration of the 90-day exercise period set forth in Section 4
hereof, (2) at the Stockholder's option, the valid termination of the
Merger Agreement by the Company pursuant to Section 10.3 thereof or (3) the
date which is 180 days after the date hereof.
9. Binding Agreement. All authority and rights herein conferred or
agreed to be conferred by the Stockholder shall survive the death or
incapacity of the Stockholder. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs,
personal representatives, successors and assigns.
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By: /s/ Mark Schneider
---------------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By:
---------------------------------------
Name:
Title:
THE DARLAND TRUST
By: /s/ Huw Salter By: /s/ Christopher Ward 1/6/1999
-------------------------- ---------------------------------------
Huw Salter Name: Christopher Ward
Authorized Signatory Title: Director
Rothschild Trust Rothschild Trust Guernsey Limited
Guernsey Limited and and Authorized Signatory
Rothschild Trust Rothschild Trust Cayman Limited
Cayman Limited
1 June 1999
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By:
---------------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By: /s/ Anton Van-VosKuijlen
---------------------------------------
Name:
Title:
THE DARLAND TRUST
By: /s/ Huw Salter By: /s/ Christopher Ward 1/6/1999
-------------------------- ---------------------------------------
Huw Salter Name: Christopher Ward
Authorized Signatory Title: Director
Rothschild Trust Rothschild Trust Guernsey Limited
Guernsey Limited and and Authorized Signatory
Rothschild Trust Rothschild Trust Cayman Limited
Cayman Limited
1 June 1999
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
Name and Address
of Stockholder Number of Shares Owned
- ------------------------------------------------------------------------------
<S> <C>
The Darland Trust 1,000 shares of Series B Cumulative
c/o Chase Enterprises Preference Shares
280 Trumbull Street
Hartford, Connecticut 06103
</TABLE>
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By: /s/ Mark Schneider
---------------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By:
---------------------------------------
Name:
Title:
By: ARNOLD L. CHASE
By: /s/ Cheryl A. Chase
--------------------------------------
Name: Cheryl A. Chase as Power of
Attorney for Arnold L. Chase
Title: Individual
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By:
---------------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By: /s/ Anton Van-VosKuijlen
---------------------------------------
Name:
Title:
By: ARNOLD L. CHASE
By: /s/ Cheryl A. Chase
--------------------------------------
Name: Cheryl A. Chase as Power of
Attorney for Arnold L. Chase
Title: Individual
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
Name and Address
of Stockholder Number of Shares Owned
- ------------------------------------------------------------------------------
<S> <C>
Arnold L. Chase 2,000 shares of Series B 12% Cumulative
c/o Chase Enterprises Preference Shares
280 Trumbull Street
Hartford, Connecticut 06103
</TABLE>
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By: /s/ Mark Schneider
---------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By:
---------------------------------
Name:
Title:
RHODA L. CHASE
By: /s/ Rhoda L. Chase
--------------------------------
Name: Rhoda L. Chase
Title: Individual
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By:
---------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By: /s/ Anton Van-VosKuijlen
---------------------------------
Name:
Title:
RHODA L. CHASE
By: /s/ Rhoda L. Chase
--------------------------------
Name: Rhoda L. Chase
Title: Individual
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
Name and Address
of Stockholder Number of Shares Owned
- ------------------------------------------------------------------------------
<S> <C>
Rhoda L. Chase 1,000 shares of Series B 12% Cumulative
c/o Chase Enterprises Preference Shares
280 Trumbull Street
Hartford, Connecticut 06103
</TABLE>
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By: /s/ Mark Schneider
---------------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By:
---------------------------------------
Name:
Title:
CHERYL ANNE CHASE
By: /s/ Cheryl A. Chase
--------------------------------------
Name: Cheryl A. Chase
Title: Individual
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed on the day and year first above written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By:
---------------------------------------
Name:
Title:
BISON ACQUISITION CORP.
By: /s/ Anton Van-VosKuijlen
---------------------------------------
Name:
Title:
CHERYL ANNE CHASE
By: /s/ Cheryl A. Chase
--------------------------------------
Name: Cheryl A. Chase
Title: Individual
<TABLE>
<CAPTION>
<PAGE>
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
Name and Address
of Stockholder Number of Shares Owned
- ------------------------------------------------------------------------------
<S> <C>
Cheryl A. Chase 1,000 shares of Series B 12% Cumulative
c/o Chase Enterprises Preference Shares
280 Trumbull Street
Hartford, Connecticut 06103
</TABLE>
