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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 3
to
SCHEDULE 14D-1
Tender Offer Statement
Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934
and
AMENDMENT NO. 3
to
SCHEDULE 13D
Under the Securities Exchange Act of 1934
@ ENTERTAINMENT, INC.
(Name of Subject Company)
UNITEDGLOBALCOM, INC.
UNITED PAN-EUROPE COMMUNICATIONS N.V.
BISON ACQUISITION CORP.
(Bidders)
Common Stock, par value $.01 per share
(Title of Class of Securities)
045920105
(CUSIP Number of Class of Securities)
Anton H.E. van Voskuijlen
United Pan-Europe Communications N.V.
Fred. Roeskestraat 123
P.O. Box 74763
1070 BT Amsterdam, The Netherlands
(31) 20-7789840
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidders)
Copies to:
William F. Wynne, Jr., Esq. Michelle L. Keist, Esq.
White & Case LLP UnitedGlobalCom, Inc.
1155 Avenue of the Americas 4643 South Ulster Street
New York, New York 10036 Suite 1300
(212) 819-8200 Denver, Colorado 80237
(303) 770-4001
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<PAGE>
SCHEDULE 14D-1 AND 13D
CUSIP No. 045920105
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1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
UnitedGlobalCom, Inc. (formerly United International Holdings, Inc.)
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
OO
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(e) or 2(f) | |
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7. AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON*
0*
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8. CHECK IF THE AGGREGATE AMOUNT IN ROW(7)
EXCLUDES CERTAIN SHARES | |
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9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
0.0%*
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10. TYPE OF REPORTING PERSON
CO
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* UnitedGlobalCom, Inc. (formerly United International Holdings, Inc.) is a
62% stockholder of United Pan-Europe Communications N.V. United Pan-Europe
Communications N.V. ("Parent") and Bison Acquisition Corp. (the
"Purchaser") have entered into Stockholder Agreements, dated as of June 2,
1999 (the "Common Stockholder Agreements"), with certain relatives of David
T. Chase, the Chairman of the Board of Directors of the Company and certain
of their respective affiliates (the "Chase Group"), Samuel Chisolm, David
Chance, Robert E. Fowler III, certain affiliates of Advent International
Group and Morgan Grenfell Capital Development Syndications Limited ("Morgan
Grenfell") (the "Stockholders") who are the record and beneficial owners of
16,175,431 shares of the common stock, par value $.01 per share (the
"Common Stock") of @ Entertainment, Inc. (the "Company"), warrants
exercisable for 5,500,000 shares of Common Stock and options to purchase
2,286,000 shares of Common Stock (together with all additional shares of
Common Stock, warrants exercisable for Common Stock and options to purchase
Common Stock, the "Option Securities") (representing approximately 48.4% of
the outstanding shares of Common Stock and approximately 51.5% of the
shares of Common Stock on a fully diluted basis) pursuant to which such
Stockholders have agreed to (i) irrevocably tender pursuant to the Offer
(and not withdraw) all shares of Common Stock held by such Stockholders,
(ii) grant to the Purchaser an option to purchase all of the Option
Securities held by such Stockholder and (iii) with respect to certain
questions put to the stockholders of the Company for a vote, to vote such
Stockholder's shares of Common Stock in accordance with the terms and
conditions of the Common Stockholder Agreement to which such Stockholder is
a party. Pursuant to the Common Stockholder Agreements, the Purchaser has
agreed to purchase the Option Securities (other than shares of Common
Stock) held by the Stockholders after the consummation of the Offer. Parent
and the Purchaser have entered into Stockholder Agreements, dated as of
June 2, 1999 (the "Preferred Stockholder Agreements" and, collectively with
the Common Stockholders Agreements, the "Stockholder Agreements"), with
certain members of the Chase Group and Morgan Grenfell (the "Preferred
Stockholders") who are the holders of all of the outstanding Series A 12%
Cumulative Preference Shares of the Company and all of the outstanding
Series B 12% Cumulative Preference Shares of the Company ( the "Preference
Shares") pursuant to which the Preferred Stockholders have agreed (i) to
grant to the Purchaser an option to purchase all of the Preference Shares
held by such Preferred Stockholders and (ii) with respect to certain
questions put to the stockholders of the Company for a vote, to vote such
Preferred Stockholder's Preference Shares in accordance with the terms and
conditions of the Preferred Stockholder Agreement to which such Preferred
Stockholder is a party. Pursuant to the Preferred Stockholder Agreements,
the Purchaser has agreed to purchase the Preference Shares held by the
Preferred Stockholders after the consummation of the Offer.
<PAGE>
This Amendment No. 3 amends and supplements the Schedule 14D-1 and
Schedule 13D filed on June 8, 1999, as amended, relating to the offer by Bison
Acquisition Corp., a Delaware corporation (the "Purchaser") and a wholly owned
subsidiary of United Pan-Europe Communications N.V., a public company with
limited liability incorporated under the laws of The Netherlands ("Parent"), to
purchase all of the issued and outstanding shares of common stock, par value
$0.01 per share (the "Common Stock"), of @ Entertainment, Inc., a Delaware
corporation (the "Company"), at a price of $19.00 per share (the "Offer Price"),
net to the seller in cash, without interest thereon, upon the terms and subject
to the conditions set forth in the Offer to Purchase, dated June 8, 1999 (the
"Offer to Purchase"), and in the related Letter of Transmittal.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 4 is hereby amended and supplemented as follows:
The Offer Price and the Merger Consideration will be funded out of a
portion of the proceeds of a private placement of debt securities by Parent (the
"Offering"). On July 27, 1999, Parent entered into a Purchase Agreement with
Donaldson, Lufkin & Jenrette International and Goldman Sachs International (as
representatives of several purchasers (the "Purchasers") named in the Purchase
Agreement) pursuant to which the Purchasers, subject to the conditions set forth
in the Purchase Agreement, agreed to purchase (x) E300 million aggregate
principal amount of 10 7/8% senior notes due 2009 (the "Senior EuroNotes"); (y)
$800 million in aggregate principal amount of 10 7/8% senior notes due 2009 (the
"Senior Dollar Notes" and, together with the Senior EuroNotes, the "Senior
Notes"); and (z) $735 million in aggregate principal amount at maturity of 12
1/2% senior discount notes due 2009 (the "Senior Discount Notes and, together
with the Senior Notes, the "Notes").
The Notes will mature ten years from their date of issuance and the
issue prices will be 100%, plus accrued interest, if any, from July 30, 1999 in
the case of the Senior Euro Notes, 100%, plus accrued interest, if any, from
July 30, 1999 in the case of the Senior Dollar Notes, and $545.21 per $1,000
principal amount of maturity in the case of the Senior Discount Notes. The
Senior Discount Notes will accrete at a rate of 12 1/2% per annum, compounded
semi-annually, to an aggregate principal amount of $735 million at August 1,
2004. The Notes will bear interest at an annual rate of 10 7/8% for the Senior
Euro Notes and 10 7/8% for the Senior Dollar Notes payable semi-annually in cash
in arrears on February 1 and August 1 of each year, commencing February 1, 2000.
The Senior Discount Notes will accrue interest at the rate of 12 1/2% per annum,
commencing August 1, 2004. Interest on the Senior Discount Notes will be payable
semi-annually in cash in arrears on February 1 and August 1 of each year,
commencing February 1, 2005. The purchase of the Notes by the Purchasers is
expected to close on July 30, 1999 and is subject to customary conditions for
private placements of notes of the type being sold including (i) the accuracy of
certain representations and warranties of Parent, (ii) the performance by Parent
of certain obligations and (iii) the delivery of opinions by Parent's
accountants and legal advisors.
Approximately $925 million of the net proceeds to Parent from the sale
of the Notes will be used to pay the Offer Price and the Merger Consideration
and to pay related fees and expenses.
The documentation covering the Notes will contain certain covenants
that, among other things, place certain limitations on Parent's ability, and the
ability of Parent's subsidiaries, to (i) borrow money, (ii) issue capital stock,
(iii) pay dividends on stock or repurchase stock, (iv) make investments, (v)
create certain liens, (vi) engage in certain transactions with affiliates, and
(vii) sell certain assets or merge with or into other companies.
At the close of trading in New York on Tuesday, July 27, 1999,
30,117,425 shares of common stock of @ Entertainment had been validly tendered
in connection with the offer comprising approximately 88.76% (or approximately
64.71% on a fully diluted basis) of the common stock of @ Entertainment.
ITEM 11. MATERIALS TO BE FILED AS EXHIBITS.
The following is hereby added as an exhibit:
Exhibit (a)(10) Press Release dated July 29, 1999.
Exhibit (c)(5) Purchase Agreement, dated as of July 27, 1998, between
Parent and the Purchasers named therein.
<PAGE>
SIGNATURE
After due 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: July 29, 1999 UNITED PAN-EUROPE COMMUNICATIONS N.V.
By: /s/ Mark L. Schneider
---------------------------------------------
Name: Mark L. Schneider
Title: Chairman of the Management Board
and Chief Executive Officer
Dated: July 29, 1999 BISON ACQUISITION CORP.
By: /s/ Anton H.E. van Voskuijlen
---------------------------------------------
Name: Anton H.E. van Voskuijlen
Title: Vice President
Dated: July 29, 1999 UNITEDGLOBALCOM, INC., (FORMERLY UNITED
INTERNATIONAL HOLDINGS, INC.)
By: /s/ Ellen P. Spangler
---------------------------------------------
Name: Ellen P. Spangler
Title: Senior Vice President
Exhibit (c)(5)
UPC COMPLETES EUROPE'S LARGEST HIGH YIELD BOND OFFERING
AMSTERDAM, NETHERLANDS, JULY 29/PRNEWSWIRE/: United Pan-Europe Communications
has today announced that it has priced its $1.5 billion bond offering. The
offering consists of three tranches: $800 million of ten year Senior Notes due
2009 with a 10 7/8% coupon; 300 million Euros of ten year Senior Notes due 2009
with a coupon of 10 7/8%; and $735 million aggregate principal amount of ten
year 12 1/2% Senior Discount Notes due 2009. The Senior Discount Notes were sold
at 54.521% of the face amount yielding gross proceeds of $400 million and will
accrue but not pay interest until 2004. Total gross proceeds from the sale of
the Senior Notes and Senior Discount Notes will be approximately $1.5 billion.
Upon closing of the transaction, the $800 million of Senior Notes will be
swapped into Euros to minimize UPC's currency and interest rate exposure. The
swap will yield an average interest rate on the swap portion of 7.8% and a
weighted average interest rate on the total $1.5 billion offering of 9.7%.
UPC intends to use the proceeds of the offering to partially finance recently
announced acquisitions.
Mark Schneider, Chairman and CEO of UPC, commenting on the bond offering said
today: "We are delighted to complete what is Europe's largest ever high yield
offering, particularly given the recent bond market turbulence. This financing
provides UPC with the capital necessary to continue our expansion throughout
Europe and our aggressive roll out of digital video, voice and high speed data
services."
The debt securities to be offered have not been, and will not be, registered
under the US Securities Act of 1933 and may not be offered or sold in the United
States absent registration or an applicable exemption from registration
requirements. The notes will be listed on the Luxembourg Stock Exchange and will
trade on the PORTAL market of the NASD. The offering is expected to close on
July 30, 1999.
Headquartered in Amsterdam, UPC is the most innovative broadband communications
company in Europe and owns and operates one of the largest pan-European groups
of broadband communication networks. UPC provides cable television, telephony,
high-speed Internet access and programming services in twelve countries across
Europe and in Israel. As of June 30th, 1999, subject to closure of recently
announced acquisitions, UPC's systems passed approximately 8.8 million homes
with more than 5.5 million basic cable subscribers. In addition, UPC systems had
139,600 telephone access lines as well as 52,700 broadband Internet access
subscribers. UPC completed an IPO in February 1999 and its shares are traded on
the Amsterdam Stock Exchange ("UPC") and Nasdaq ("UPCOY").
UPC is a consolidated subsidiary of Denver based UnitedGlobalCom Inc.
("United"), (Nasdaq: "UCOMA"). Microsoft has an interest of approximately 7.8%
in UPC.
"Safe Harbor" Statement under the Private Securities Litigation Reform Act of
1995: Statements in this press release regarding United Pan Europe
Communications NV's business which are not historical facts are "forward-looking
statements" that involve risks and uncertainties. For a discussion of such risks
and uncertainties, which could cause actual results to differ from those
contained in the forward-looking statements, see "Risk Factors" in the Company's
Annual Report or Form 10-K for the most recently ended fiscal year.
UNITED PAN-EUROPE COMMUNICATIONS N.V.
$800,000,000 10.875% SENIOR NOTES DUE 2009
E300,000,000 10.875% SENIOR NOTES DUE 2009
$735,000,000 12.5% SENIOR DISCOUNT NOTES DUE 2009
PURCHASE AGREEMENT
July 27, 1999
Goldman Sachs International,
Donaldson, Lufkin & Jenrette International
As representatives of the several Purchasers
named in Schedule I hereto,
c/o Goldman Sachs International
Peterborough Court
133 Fleet Street
London EC4A 2BB
England
Ladies and Gentlemen:
United Pan-Europe Communications N.V., a Netherlands public corporation
with limited liability having its statutory seat in Amsterdam, The Netherlands
(the "Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Purchasers named in Schedule I hereto (the "Purchasers")
an aggregate of $800,000,000 principal amount of its 10.875% Senior Notes due
2009, an aggregate of E300,000,000 principal amount of its 10.875% Senior Notes
due 2009 (the "Senior Notes") and an aggregate of $735,000,000 principal amount
at maturity of its 12.5% Senior Discount Notes due 2009 (the "Senior Discount
Notes" and together with the Senior Notes, the "Notes"). The Senior Notes are to
be issued pursuant to the provisions of an indenture (the "Senior Notes
Indenture") to be dated as of July 30, 1999 between the Company and Citibank
N.A. as trustee (the "Trustee"). The Senior Discount Notes are to be issued
pursuant to the provisions of an indenture (the "Discount Notes Indenture" and
together with the Senior Notes Indenture, the "Indentures") to be dated as of
July 30, 1999 between the Company and the Trustee.
Holders (including subsequent transferees) of the Notes will have the
registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be dated as of July 30, 1999. Pursuant to
the Registration Rights Agreement, the Company will agree to file with the
Securities and Exchange Commission (the "Commission"), under the circumstances
and on the terms set forth therein, (i) a registration statement under the
United States Securities Act of 1933, as amended (the "Securities Act") (the
"Exchange Offer Registration Statement") relating to the Company's Notes (the
"Exchange Notes") to be offered in exchange for the Notes (the "Exchange Offer")
and (ii) a shelf registration statement pursuant to Rule 415 under the
Securities Act (the "Shelf Registration Statement" and, together with the
Exchange Offer Registration Statement, the "Registration Statements") relating
to the resale by certain holders of the Notes, and to use its best efforts to
cause such Registration Statements to be declared effective.
This Agreement, the Indentures, the Notes and the Registration Rights
Agreement are hereinafter referred to collectively as the "Transaction
Documents."
1. The Company represents and warrants to, and agrees with, each of the
Purchasers that:
(a) A preliminary offering memorandum, dated July 12, 1999 (the
"Preliminary Offering Circular") and an Offering Circular, dated July 27, 1999
(the "Offering Circular"), have been prepared in connection with the offering of
the Notes. The Preliminary Offering Circular and the Offering Circular and any
amendments or supplements thereto did not and will not, as of their respective
dates, contain an untrue statement of a material fact or 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; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by a Purchaser through the Representatives expressly for
use therein;
(b) None of the Company or its subsidiaries, or, to the best of the
Company's knowledge after due inquiry, any of @Entertainment, Inc., Time Warner
Cable France S.A., Reseaux Cables de France S.A., Videopole S.A., Kabel Plus,
a.s., SBS Broadcasting S.A., GelreVision N.V., NBS Broadband Services AB and SKT
spol. S.r.o. or any of their respective subsidiaries (together, other than the
Company and its subsidiaries, the "New Acquisition Entities") has sustained
since the date of its respective latest audited financial statements included in
the Offering Circular any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or other legal or governmental action, order or
decree, having a material adverse effect on the Company, its subsidiaries and
the New Acquisition Entities taken as a whole, other than as set forth or
contemplated in the Offering Circular; and, since the respective dates as of
which information is given in the Offering Circular, there has not been (i) any
change in the capital stock of the Company, or (ii) any increase in the
long-term debt of the Company or its subsidiaries, or, to the best of the
Company's knowledge after due inquiry, the New Acquisition Entities, in excess
of $25,000,000 or its equivalent, or (iii) any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, condition (financial or otherwise), shareholders'
equity or results of operations of the Company, its subsidiaries and the New
Acquisition Entities, taken as a whole, otherwise than as set forth or
contemplated in the Offering Circular;
(c) The Company, its subsidiaries, and, to the best of the Company's
knowledge after due inquiry, the New Acquisition Entities, have good and
marketable title in fee simple to all material real property and good and
marketable title to all material personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as are
described in the Offering Circular or such as do not materially adversely 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, its subsidiaries and the New
Acquisition Entities; and any real property and buildings held under lease by
the Company, its subsidiaries and, to the best of the Company's knowledge after
due inquiry, the New Acquisition Entities, are held by them under valid,
subsisting and enforceable leases with such exceptions as do not have a material
adverse effect on the Company, its subsidiaries and the New Acquisition
Entities, taken as a whole, and do not interfere with the use made and proposed
to be made of such property and buildings by the Company, its subsidiaries and
the New Acquisition Entities;
(d) The Company has been duly incorporated and is validly existing as a
public limited liability company under the laws of The Netherlands, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Offering Circular, and has been duly qualified for
the transaction of business outside The Netherlands and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is subject to
no material liability or disability by reason of the failure to be so qualified
in any such jurisdiction; and each subsidiary of the Company and, to the best of
the Company's knowledge after due inquiry, each of the New Acquisition Entities,
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
(e) The Company has an authorized capitalization as set forth in the
Offering Circular, and all of the issued shares of capital stock of the Company
and, to the best of the Company's knowledge after due inquiry, the New
Acquisition Entities, have been duly and validly authorized and issued and are
fully paid and non-assessable; and all of the issued shares of capital stock of
each subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and (except for directors' qualifying shares
and except as otherwise set forth in the Offering Circular) are owned directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims; and there are no restrictions on subsequent transfers of the
Notes under the laws of The Netherlands and of the United States, except as
described in the Offering Circular;
(f) The Company has all necessary corporate power and authority to execute
and deliver this Agreement and the other Transaction Documents and to perform
its obligations under this Agreement and the other Transaction Documents and to
authorize, issue, sell and deliver the Notes as contemplated by this Agreement
and to perform its obligations thereunder, as applicable;
(g) Each of the Senior Notes Indenture and the Discount Notes Indenture has
been duly authorized and, when executed and delivered by the Company and the
Trustee, will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and will
conform to the descriptions thereof in the Preliminary Offering Circular and the
Offering Circular and will be in substantially the form previously delivered to
you;
(h) The Senior Notes and the Senior Discount Notes have been duly
authorized and, when issued and delivered pursuant to this Agreement, will have
been duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company entitled to the benefits
provided by the Senior Notes Indenture and the Discount Notes Indenture,
respectively; and will conform to the descriptions thereof in the Preliminary
Offering Circular and the Offering Circular and will be in substantially the
form previously delivered to you;
(i) The Exchange Notes have been duly authorized and, when issued and
authenticated in accordance with the terms of the Indentures and the
Registration Rights Agreement, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the Indentures;
and will conform to the descriptions thereof in the Preliminary Offering
Circular and the Offering Circular;
(j) The Registration Rights Agreement has been duly authorized by the
Company and, when duly executed and delivered by the Company, will be the valid
and legally binding obligation of the Company enforceable against the Company in
accordance with its terms. The Registration Rights Agreement, when executed and
delivered, will conform to the description thereof in the Preliminary Offering
Circular and the Offering Circular;
(k) The execution and delivery of, and the performance by the Company of
its obligations under this Agreement, have been duly and validly authorized by
the Company, and this Agreement has been duly executed and delivered by the
Company;
(l) None of the transactions contemplated by this Agreement (including,
without limitation, the use of the proceeds from the sale of the Notes) will
violate or result in a violation of Section 7 of the United States Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or any regulation
promulgated thereunder, including, without limitation, Regulations G, T, U, and
X of the Board of Governors of the Federal Reserve System;
(m) There is no "substantial U.S. market interest" in the Company's debt
securities within the meaning of Rule 903(c) under
the Securities Act;
(n) The issue and sale of the Notes and the compliance by the Company with
all of the provisions of the Transaction Documents and the consummation of the
transactions herein and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, the Credit Agreement (as defined herein), any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company, its subsidiaries or, to the best of the Company's knowledge
after due inquiry, the New Acquisition Entities, is a party or by which the
Company, its subsidiaries or, to the best of the Company's knowledge after due
inquiry, the New Acquisition Entities is bound or to which any of the property
or assets of the Company, its subsidiaries or, to the best of the Company's
knowledge after due inquiry, the New Acquisition Entities is subject, nor will
such action result in any violation of the provisions of the Articles of
Association or bylaws or other organizational documents of the Company, its
subsidiaries or, to the best of the Company's knowledge after due inquiry, the
New Acquisition Entities, or any statute or other applicable law or any order,
rule, filing, judgement, injunction, decree or regulation of any court or
governmental agency or body ("Governmental Agency") having jurisdiction over the
Company, its subsidiaries or, to the best of the Company's knowledge after due
inquiry, the New Acquisition Entities or any of their properties except, with
respect in any such case to the subsidiaries and, to the best of the Company's
knowledge after due inquiry, the New Acquisition Entities, as would not, singly
or in the aggregate, have a material adverse effect on the Company, its
subsidiaries and the New Acquisition Entities taken as a whole; and no such
governmental authorization, consent, approval or filing ("Governmental
Authorization") of or with any such Governmental Agency is required for the
issue and sale of the Notes or the consummation by the Company of the
transactions contemplated by the Transaction Documents except for the filing of
the Registration Statements with the Commission pursuant to the Registration
Rights Agreement and such Governmental Authorizations as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Notes by the Purchasers;
(o) None of the Company, its subsidiaries or, to the best of the Company's
knowledge after due inquiry, the New Acquisition Entities, is in violation of
its Articles of Association or other constituent documents or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound, except for such defaults as would not, singly or in
the aggregate, have a material adverse effect on the Company, its subsidiaries
and the New Acquisition Entities taken as a whole;
(p) Other than as disclosed in the Offering Circular, to the best of the
Company's knowledge after due inquiry, the acquisition of the New Acquisition
Entities by the Company, its subsidiaries or affiliates will not conflict with
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any agreement or instrument to which any of the New
Acquisition Entities is a party, except for such defaults as would not have a
material adverse effect on the relevant New Acquisition Entity;
(q) The statements set forth in the Offering Circular under the caption
"Description of the Notes," insofar as they purport to constitute a summary of
the terms of the Notes, under the caption "Certain Taxation Considerations," and
under the caption "Plan of Distribution," insofar as they purport to describe
the provisions of the laws and documents referred to therein, and under the
caption "Certain Transactions and Relationships--Relationship with United and
Related Transactions," insofar as they purport to describe such relationship and
related transactions, and under the caption "Certain Transactions and
Relationships--Relationship with Microsoft," insofar as they purport to describe
such relationship, are accurate and complete in all material respects;
(r) Except as otherwise set forth in the Offering Circular, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries, or, to the best of the Company's knowledge after due inquiry, the
New Acquisition Entities, is a party or of which any property of the Company,
its subsidiaries or the New Acquisition Entities is the subject which, if
determined adversely to the Company, its subsidiaries or the New Acquisition
Entities, would individually or in the aggregate have a material adverse effect
on the current or future consolidated financial position, shareholders' equity
or results of operations of the Company, its subsidiaries and the New
Acquisition Entities taken as a whole; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(s) Except as otherwise disclosed in the Offering Circular, all interest on
the Notes may under the current laws and regulations of The Netherlands be paid
in euros or U.S. dollars that may be converted into foreign currency that may be
freely transferred out of The Netherlands, and all such interest and other
distributions on the Notes will not be subject to withholding or other taxes
under the laws and regulations of The Netherlands and are otherwise free and
clear of any other tax, withholding or deduction in The Netherlands and without
the necessity of obtaining any Governmental Authorization in The Netherlands;
(t) The Company is subject to Section 13 or 15(d) of the Exchange Act and
has filed all required reports with the Commission (the "Exchange Act Reports");
and when the Exchange Act Reports were filed with or furnished to the
Commission, they conformed in all material respects to the applicable
requirements of the Exchange Act and the applicable rules and regulations of the
Commission thereunder;
(u) None of the Company, any affiliate of the Company or any person acting
on its or their behalf has offered or sold the Notes by means of any general
solicitation or general advertising within the meaning of Rule 502(c) under the
Securities Act or, with respect to Notes sold outside the United States to
non-U.S. persons (as defined in Rule 902 under the Securities Act), by means of
any directed selling efforts within the meaning of Rule 902 under the Securities
Act and the Company, any affiliate of the Company and any person acting on its
or their behalf has complied with and will implement the "offering restrictions"
within the meaning of such Rule 902;
(v) Within the preceding six months, neither the Company nor any other
person acting on behalf of the Company has offered or sold to any person any
Senior Notes or Senior Discount Notes, or any securities of the same or a
similar class as the Senior Notes or Senior Discount Notes, other than Senior
Notes or Senior Discount Notes offered or sold to the Purchasers hereunder. The
Company will take reasonable precautions designed to ensure that any offer or
sale, direct or indirect, in the United States or to any U.S. person (as defined
in Rule 902 under the Securities Act) of any Senior Notes, Senior Discount Notes
or any substantially similar security issued by the Company, within six months
subsequent to the date on which the distribution of the Senior Notes and Senior
Discount Notes has been completed (as notified to the Company by the
Representatives), is made under restrictions and other circumstances reasonably
designed not to affect the status of the offer and sale of the Senior Notes and
Senior Discount Notes in the United States and to U.S. persons contemplated by
this Agreement as transactions exempt from the registration provisions of the
Securities Act;
(w) The Company is not and, after giving effect to the offering and sale of
the Notes, will not be, an "investment company", as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(x) Each of the Company, its subsidiaries and, to the best of the Company's
knowledge after due inquiry, the New Acquisition Entities, has filed all
material tax returns required to be filed, which returns are complete and
correct in all material respects, and none of the Company, its subsidiaries or,
to the best of the Company's knowledge after due inquiry, the New Acquisition
Entities, is in default in the payment of any taxes which were payable pursuant
to said returns or any assessments with respect thereto;
(y) Except as otherwise set forth in the Offering Circular, the Company,
its subsidiaries and, to the best of the Company's knowledge after due inquiry,
the New Acquisition Entities, have all licences, franchises, permits,
authorizations, approvals and orders and other concessions of and from all
Governmental Agencies that are necessary to own or lease their properties and
conduct their current businesses as described in the Offering Circular, with
such exceptions as would not, individually or in the aggregate, have a material
adverse effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company, its subsidiaries
and the New Acquisition Entities taken as a whole;
(z) Neither the Company nor any of its subsidiaries has taken, directly or
indirectly, any action which was designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Notes;
(aa) The Company is not a Passive Foreign Investment Company ("PFIC")
within the meaning of Section 1296 of the United States Internal Revenue Code of
1986, as amended, and is not likely to become a PFIC;
(bb) When the Senior Notes and Senior Discount Notes are issued and
delivered pursuant to this Agreement, the Senior Notes and Senior Discount Notes
will not be of the same class (within the meaning of Rule 144A under the
Securities Act) as securities which are listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S. automated
inter-dealer quotation system;
(cc) No stamp or other issuance or transfer taxes or duties and no capital
gains, income, withholding or other taxes are payable by or on behalf of the
Purchasers to The Netherlands or any political subdivision or taxing authority
thereof or therein in connection with (A) the issuance, sale and delivery by the
Company to or for the respective accounts of the Purchasers of the Notes or (B)
the sale and delivery outside The Netherlands by the Purchasers of the Notes to
the initial purchasers thereof;
(dd) None of the Company, its subsidiaries or, to the best of the Company's
knowledge after due inquiry, the New Acquisition Entities does business with the
government of Cuba or with any person or affiliate located in Cuba within the
meaning of Section 517.075, Florida Statutes;
(ee) Arthur Andersen, who have certified certain financial statements of
the Company, its subsidiaries and the New Acquisition Entities, and Arthur
Andersen, s.r.o., Pricewaterhouse Coopers N.V., Pricewaterhousecoopers (France),
Pricewaterhousecoopers (Malta), Pricewaterhousecoopers (Sweden), KPMG Polska Sp.
zo.o, KPMG Accountants N.V., KPMG Somekhchaikis, KPMG Slovensko, s.r.o., VB
Deloitte & Touche, Ernst & Young S.A, Ernst & Young (Netherlands), Ernst & Young
(Denmark), Ernst & Young AB, Ernst & Young, Vachon et Associes, who have
certified certain financial statements of the Company's subsidiaries and the New
Acquisition Entities, are, insofar as the Company, its subsidiaries and the New
Acquisition Entities are concerned, each independent public accountants as
required by the Securities Act and the rules and regulations of the Commission
thereunder;
(ff) The financial statements included in the Preliminary Offering Circular
and the Offering Circular (and any amendment or supplement thereto), present
and, as applicable, will present fairly the respective financial positions,
results of operations and changes in financial positions of (i) the Company and
(ii) each subsidiary and New Acquisition Entity, in each case, for which such
financial statements are so included on the basis stated in the Preliminary
Offering Circular and the Offering Circular at the respective dates or for the
respective periods to which they apply; such financial statements and related
schedules and notes have been prepared in accordance with generally accepted
accounting principles with appropriate reconciliations to United States
generally accepted accounting principles, consistently applied throughout the
periods involved, except as disclosed therein; the other financial and
statistical information and data included in the Preliminary Offering Circular
and the Offering Circular (and any amendment or supplement thereto) are
accurately presented and, as applicable, will be accurately presented in all
material respects and prepared on a basis consistent with such financial
statements and the books and records of the Company, its subsidiaries and the
New Acquisition Entities; and the pro forma financial statements and "as
adjusted" financial information and the related notes thereto included or
incorporated by reference in the Preliminary Offering Circular and Offering
Circular have been or, as applicable, will be prepared in accordance with the
applicable requirements of the Securities Act (as though the Preliminary
Offering Circular and the Offering Circular were a prospectus included in a
registration statement filed pursuant to the Securities Act) and on the bases
described therein and, in the opinion of the Company, the assumptions used in
the preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to
therein.
(gg) The Company is reviewing its operations and those of its subsidiaries,
and the New Acquisition Entities and any third parties with which the Company,
its subsidiaries or the New Acquisition Entities has a material relationship to
evaluate the extent to which the business or operations of the Company, its
subsidiaries or the New Acquisition Entities will be affected by the Year 2000
Problem. As a result of such ongoing review to date, the Company currently has
no reason to believe, and does not currently believe that the Year 2000 Problem
will have a material adverse effect on the general affairs, management, the
current or future consolidated financial position, business prospects,
shareholders' equity or results of operations of the Company, its subsidiaries
and, to the best of the Company's knowledge after due inquiry, the New
Acquisition Entities taken as a whole, or result in any material loss or
interference with the Company's business or operations. The "Year 2000 Problem"
as used herein means any significant risk that computer hardware or software
used in the receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of mechanical or
electrical systems of any kind will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively as in the
case of dates or time periods occurring prior to January 1, 2000;
(hh) The Company, its subsidiaries and, to the best of the Company's
knowledge after due inquiry, the New Acquisition Entities, own, possess, have
rights to or can acquire adequate patents, licenses, know-how, trademarks,
copyrights, trade secrets, mask works, service marks and trade names necessary
to operate the businesses now operated by them, and none of the Company, its
subsidiaries or, to the best of the Company's knowledge after due inquiry, the
New Acquisition Entities, has received any notice of infringement of or conflict
with asserted rights or others with respect to any of the foregoing which the
Company reasonably believes, singly or in the aggregate, is likely to result in
any material adverse change in the condition (financial or otherwise) or in the
earnings, business or operations of the Company, its subsidiaries and the New
Acquisition Entities taken as a whole;
(ii) The Company, its subsidiaries and, to the best of the Company's
knowledge after due inquiry, the New Acquisition Entities (A) are in compliance
with any and all applicable laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (B) have received all
permits, licenses or other approvals required of them under the applicable
Environmental Laws to conduct their respective businesses and (C) are in
compliance with all terms and conditions of any such permit, licence or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company, its
subsidiaries and the New Acquisition Entities taken as a whole;
(jj) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file, other than in connection with (i) the DIC Option Agreement, (ii) the
Registration Rights Agreement dated February 10, 1999 between the Company and
United International Holdings, Inc., (iii) the agreement to grant Microsoft
Corporation certain registration rights as described in the Offering Circular
under the caption "Relationship with Microsoft" and (iv) the Registration Rights
Agreement, a registration statement under the Securities Act with respect to any
securities of the Company; and
(kk) No "nationally recognized statistical rating organization" as such
term is defined for purposes of Rule 436(g)(2) under the Securities Act (i) has
imposed (or has informed the Company that it is considering imposing) any
condition (financial or otherwise) on retaining any rating assigned to the
Company or any securities of the Company, or (ii) has indicated to the Company
that it is considering (1) the downgrading, suspension, or withdrawal of, or any
review for a possible change that does not indicate the direction of the
possible change in, any rating so assigned or (2) any change in the outlook for
any rating of the Company or any securities of the Company.
2. Subject to the terms and conditions herein set forth, the Company agrees
to issue and sell to each of the Purchasers, and each of the Purchasers agrees,
severally and not jointly, to purchase from the Company, at a purchase price for
dollar denominated Senior Notes (the "Senior Dollar Notes") of 98.0% of the
principal amount thereof, at a purchase price for euro denominated Senior Notes
(the "Senior Euro Notes") of 98.0% of the principal amount thereof and at a
purchase price for Senior Discount Notes of 53.43058% of the principal amount at
maturity thereof, plus, in each case, accrued interest, if any, from July 30,
1999 to the Time of Delivery hereunder, the principal amount of Senior Dollar
Notes and Senior Euro Notes and the principal amount at maturity of the Senior
Discount Notes set forth opposite the name of such Purchaser in Schedule I
hereto.
3. Upon the authorization by you of the release of the Notes, the several
Purchasers propose to offer the Notes for sale upon the terms and conditions set
forth in this Agreement and the Offering Circular and each Purchaser hereby
represents and warrants to, and agrees with the Company that:
(a) It will offer and sell the Notes only: (i) to persons who it reasonably
believes are "qualified institutional buyers" ("QIBs") within the meaning of
Rule 144A under the Securities Act in transactions meeting the requirements of
Rule 144A, and (ii) upon the terms and conditions set forth in Annex I to this
Agreement;
(b) It is an institutional accredited investor; and
(c) It will not offer or sell the Notes by any form of general solicitation
or general advertising, including but not limited to the methods described in
Rule 502(c) under the Securities Act.
4. Senior Dollar Notes and Senior Discount Notes to be purchased by each
Purchaser hereunder will be evidenced by one or more global notes in book-entry
form which will be deposited by or on behalf of the Company with a custodian
for, and registered in the name of, a nominee of The Depository Trust Company
("DTC"). Senior Euro Notes to be purchased by each Purchaser hereunder will be
evidenced by one or more global notes in book-entry form which will be deposited
with a common depositary for, and registered in the name of, a nominee of
Euroclear and Cedelbank. The Company will (i) deliver the Senior Dollar Notes to
Goldman Sachs International, for the account of each Purchaser, against payment
by or on behalf of such Purchaser of the purchase price therefor by certified or
official bank check or checks payable to the order of, or by wire transfer to,
the Company in Federal (same day) funds, by causing DTC to credit the Senior
Dollar Notes to the account of Goldman Sachs International at DTC, and (ii)
deliver the Senior Euro Notes and the Senior Discount Notes to Donaldson, Lufkin
& Jenrette International, for the account of each Purchaser, against payment by
or on behalf of such Purchaser of the purchase price therefor by certified or
official bank check or checks payable to the order of, or by wire transfer to,
the Company in Federal (same day) funds, by causing DTC, Euroclear or Cedelbank,
as the case may be, to credit the Senior Euro Notes and the Senior Discount
Notes to the account of Donaldson, Lufkin & Jenrette International, at DTC,
Euroclear or Cedelbank, as the case may be. The Company will cause the
certificates representing the Notes to be made available to the Representatives,
for checking at least twenty-four hours prior to the Time of Delivery (as
defined below) at the office of DTC or its designated custodian, Euroclear or
Cedelbank, as the case may be (the "Designated Office"). The time and date of
such delivery and payment in connection with the Senior Euro Notes, and the
Senior Dollar Notes and the Senior Discount Notes shall be 9:00 a.m. and 2:00
p.m.(London time), respectively, on July 30, 1999 or such other time and date as
the Representatives, and the Company may agree upon in writing. Such time and
date are herein called the "Time of Delivery."
(a) The documents to be delivered at the Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipts
for the Notes and any additional documents requested by the Purchasers pursuant
to Section 7 hereof, will be delivered at such time and date at the offices of
Skadden, Arps, Slate, Meagher & Flom LLP, One Canada Square, Canary Wharf,
London E14 5DS (the "Closing Location"), and the Notes will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be held at the
Closing Location at 4 p.m., London time, on the London Business Day next
preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "London
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in London, England are
generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Purchasers:
(a) To prepare the Offering Circular in a form approved by you; to make no
amendment or any supplement to the Offering Circular which shall be disapproved
by you promptly after reasonable notice thereof; and to furnish you with copies
thereof;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Notes for offering and sale under the securities laws of
such jurisdictions as you may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the Notes, provided
that in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Purchasers with 10 copies of the Offering Circular and
each amendment or supplement thereto signed by an authorized officer of the
Company with the independent accountants' report(s) in the Offering Circular,
and any amendment or supplement containing amendments to the financial
statements covered by such report(s), signed by the accountants and additional
copies thereof, in such quantities as you may from time to time reasonably
request, and if, at any time prior to the expiration of nine months after the
date of the Offering Circular, any event shall have occurred as a result of
which the Offering Circular as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made when such Offering Circular is delivered, not misleading,
or, if for any other reason it shall be necessary during such period to amend or
supplement the Offering Circular, to notify you and upon your request to prepare
and furnish without charge to each Purchaser and to any dealer in securities as
many copies as you may from time to time reasonably request of an amended
Offering Circular or a supplement to the Offering Circular which will correct
such statement or omission or effect such compliance;
(d) During the period beginning from the date hereof and continuing until
the date 90 days after the Time of Delivery, not to offer, sell, contract to
sell or otherwise dispose of, except as provided hereunder any securities of the
Company that are substantially similar to the Senior Notes or the Senior
Discount Notes;
(e) Not to be or become, at any time prior to the expiration of three years
after the Time of Delivery, an open-end investment company, unit investment
trust, closed-end investment company or face-amount certificate company that is
or is required to be registered under Section 8 of the Investment Company Act;
(f) At any time when the Company is not subject to Section 13 or 15(d) of
the Exchange Act or exempt from registration under Section 12(b) of the Exchange
Act, for the benefit of holders from time to time of Notes, to furnish at its
expense, upon request, to holders of Notes and prospective purchasers of
securities information (the "Additional Issuer Information") satisfying the
requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act;
(g) If requested by you, to use its best efforts to cause the Notes to be
eligible for the PORTAL trading system of the National Association of Securities
Dealers, Inc.;
(h) To furnish to the holders of the Notes as soon as practicable after the
end of each fiscal year an annual report (in English) (including a balance sheet
and statements of income, shareholders' equity and cash flows of the Company and
its consolidated subsidiaries certified by independent public accountants and
prepared in conformity with generally accepted accounting principles in the U.S.
("U.S. GAAP")) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter ending
after the date of the Offering Circular), to make available to holders of Notes
consolidated summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail;
(i) During a period of five years from the date of the Offering Circular,
to furnish to you copies of all reports or other communications (financial or
other) furnished to shareholders of the Company, and to deliver to you (i) as
soon as they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any securities exchange on which
the Notes, or any class of securities of the Company is listed; and (ii) such
additional information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
shareholders generally or to the Commission);
(j) Pursuant to the Registration Rights Agreement, the Company shall file
and use its best efforts to cause to be declared or become effective under the
Securities Act, a registration statement on form S-4 providing for the
registration of the Exchange Notes and the exchange of the Notes for the
Exchange Notes, all in a manner which will permit persons who acquire Exchange
Notes to resell the Exchange Notes pursuant to Section 4(1) of the Securities
Act.
(k) Not to (and to cause its subsidiaries not to) take, directly or
indirectly, any action which is designed to or which constitutes or which might
reasonably be expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Notes.
(l) The Company confirms that it has caused to be made an application for
the Notes to be listed on the Luxembourg Stock Exchange (the "Exchange"). In
connection with such application, the Company agrees to furnish from time to
time any and all documents, instruments, information and undertakings and
publish all advertisements or other material that may be necessary in order to
effect and maintain such listing and to use its best efforts to maintain such
listing so long as any of the Notes are outstanding (as defined in the
Indentures); provided that if at any time the Company shall determine that it
can no longer reasonably comply with the requirements for listing of the Notes
on the Exchange and if maintenance of such listing becomes onerous, it will use
its best efforts to obtain and thereafter to maintain a listing of Notes on such
other major stock exchange in a leading financial center as the Representatives
may reasonably request and as the Trustee may approve; and
(m) To use the net proceeds received by it from the sale of the Notes
pursuant to this Agreement in the manner specified in the Offering Circular
under the caption "Use of Proceeds."
6. The Company covenants and agrees with the several Purchasers that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
issue of the Notes and all other expenses in connection with the preparation,
printing and filing of the Preliminary Offering Circular and the Offering
Circular and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Purchasers and dealers; (ii) the cost of
printing or producing any Agreement among Purchasers, this Agreement, the
Indentures, the Blue Sky and legal investment memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Notes; (iii) all expenses in
connection with the qualification of the Notes for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Purchasers in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Notes; (v)
the cost of preparing the Notes; (vi) the fees and expenses of the Trustee and
any agent of the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Indentures and the Notes; (vii) any cost incurred
in connection with the designation of the Notes for trading in PORTAL; (viii)
all fees and expenses in connection with listing the Notes on the Luxembourg
Stock Exchange; (ix) the reasonable out-of-pocket expenses (other than fees and
disbursements of counsel to the Purchasers) incurred by the Purchasers in
connection with the transactions contemplated herein; (x) all stamp, transfer,
capital issuance or similar expenses and taxes arising as a result of the sale
and delivery of the Notes by the Company to or for the account of the Purchasers
pursuant to this Agreement, and the sale and delivery of the Notes by the
Purchasers to the initial purchasers thereof in the manner contemplated under
this Agreement, and any Dutch income, capital gains, transfer, withholding or
other tax asserted against a Purchaser solely by reason of the purchase and sale
of any Notes pursuant to this Agreement; and (xi) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section, including all reasonable roadshow
costs. It is understood, however, that, except as provided in this Section, and
Sections 8 and 11 hereof, the Purchasers will pay all of their own costs and
expenses.
7. The obligations of the Purchasers hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company herein are, at and as of the Time of Delivery, true
and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) Skadden, Arps, Slate, Meagher & Flom LLP, United States counsel for the
Purchasers, shall have furnished to you such opinion or opinions, dated the Time
of Delivery, in form and substance satisfactory to you;
(b) Holme Roberts & Owen LLP, United States counsel for the Company, shall
have furnished to you their written opinion, dated the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) Insofar as New York law is concerned, the Purchase Agreement has
been duly executed and delivered by the Company;
(ii)Under the laws of the State of New York relating to personal
jurisdiction, the Company has, pursuant to Section 14 of the Purchase
Agreement, validly and irrevocably submitted to the personal jurisdiction
of any state or federal court of competent subject matter jurisdiction
located in the Borough of Manhattan, The City of New York, New York (each a
"New York Court") in any action arising out of or relating to the Purchase
Agreement or the transactions contemplated thereby, has validly and
irrevocably waived any objection to the venue of a proceeding in any such
court, and has validly and irrevocably appointed the Authorized Agent (as
defined in the Purchase Agreement) as its authorized agent for the purpose
described in Section 14 of the Purchase Agreement, and service of process
effected on such agent in the manner set forth in Section 14 of the
Purchase Agreement will be effective to confer valid personal jurisdiction
over the Company;
(iii) The Senior Notes and the Senior Discount Notes have been duly
authorized, executed, issued and delivered by the Company under New York
law and, assuming due authentication in accordance with the provisions of
the Indentures and due payment by the Purchasers in accordance with the
terms of the Purchase Agreement, the Senior Notes and the Senior Discount
Notes, will constitute valid and legally binding obligations of the
Company, entitled to the benefits provided by the Indentures; and the
Notes, the Exchange Notes and the Indentures conform to the descriptions
thereof in the Offering Circular in all material respects;
(iv)Each of the Indentures and the Registration Rights Agreement has
been duly authorized, executed and delivered by the Company under New York
law and assuming the due execution and delivery of the Indentures by the
Trustee, each constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(v) The issue and sale of the Notes and the compliance by the Company
with all of the provisions of the Notes, the Indentures, the Registration
Rights Agreement and the Purchase Agreement and the consummation of the
transactions therein contemplated will not conflict with or result in a
breach or violation of any U.S. or New York law (it being understood that
we give no opinion as to blue sky, state securities or, except with respect
to the matters covered in paragraph (xiii) below, federal securities laws);
(vi)To the best of such counsel's knowledge and other than as set
forth in the Offering Circular, there are no legal, regulatory or
governmental proceedings pending to which the Company or its subsidiaries
is a party or of which any property of the Company or its subsidiaries is
the subject, and with respect to which there is a reasonable expectation of
an adverse determination that would individually or in the aggregate have a
material adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries; and, to the best of such counsel's knowledge, no such
proceedings are threatened by any Governmental Agency, domestic or foreign,
or threatened by others;
(vii) Neither the Company nor any of its subsidiaries is in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument known to such counsel to
which the Company or such subsidiary is a party or by which it or any of
its properties may be bound, except for such defaults as would not, singly
or in the aggregate, reasonably be expected to have a material adverse
effect on the Company and its subsidiaries taken as a whole;
(viii) The issue and sale of the Notes and the compliance by the
Company with all provisions of the Purchase Agreement and the consummation
of the transactions therein contemplated will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under or require consent under, or result in the
imposition of a lien or encumbrance on any assets or properties of the
Company or any of its Subsidiaries, or an acceleration of the indebtedness
pursuant to any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument known to such counsel to which the Company
or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, except for such breaches,
violations or defaults as would not, singly or in the aggregate, reasonably
be expected to have a material adverse effect on the Company and its
subsidiaries taken as a whole, nor will such action result in any violation
of any statue, rule or regulation or, to the knowledge of such counsel, any
order, of any United States Federal or New York Governmental Agency having
jurisdiction over the Company or any of its subsidiaries or properties;
(ix) No Governmental Authorization of the United States or the State
of New York is required for the issue and sale of the Notes or the
consummation by the Company of the transactions contemplated by the
Purchase Agreement, Registration Rights Agreement or the Indentures, except
the filing of the Registration Statements with the Commission pursuant to
the Registration Rights Agreement, and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Notes by the Purchasers;
(x) The statements set forth in the Offering Circular under the
caption "Description of the Notes," insofar as they purport to constitute a
summary of the terms of the Notes, and under the captions "Risk
Factors-Original Issue Discount Consequences" and "Certain Tax
Consequences-Certain United States Federal Income Tax Consequences,"
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate and fairly summarize such laws
and documents in all material respects;
(xi)Neither the Company nor any of its subsidiaries is now, nor, after
the sale of Notes to be sold by it thereunder and the application of the
proceeds from such sales as described in the Offering Circular under the
caption "Use of Proceeds," will be (a) an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act, or (b) a "holding company" or a "subsidiary
company" or an "affiliate" of a holding company within the meaning of the
Public Utility Holding Company Act of 1935, as amended;
(xii) When the Notes are issued and delivered pursuant to the Purchase
Agreement, none of the Senior Notes or Senior Discount Notes will be of the
same class (within the meaning of Rule 144A under the Securities Act) as
securities of the Company that are listed on a national securities exchange
registered under Section 6 of the Exchange Act or that are quoted in a
United States automated inter-dealer quotation system; and
(xiii) No registration of the Notes under the Securities Act, and no
qualification of an indenture under the United States Trust Indenture Act
of 1939 with respect thereto, is required for the offer, sale and initial
resale of the Notes by the Purchasers in the manner contemplated by the
Offering Circular and by the Purchase Agreement.
Although such counsel has not undertaken, except as otherwise indicated in
such counsel's opinion, to determine independently, and such counsel does not
assume any responsibility for, the accuracy or completeness of the statements in
the Offering Circular, such counsel has participated in the preparation of the
Offering Circular, including review and discussion of the contents thereof with
certain officers and representatives of the Company and representatives of the
independent public accountants for the Company, and nothing has come to such
counsel's attention that has caused such counsel to believe that the Offering
Circular as of the date thereof contained or at the Closing Date contains an
untrue statement of a material fact or as of the date thereof omitted or at the
Closing Date omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (it being understood
that such counsel need not express an opinion with respect to the financial
statements and the related notes and schedules thereto and other financial data
included in the Offering Circular);
(c) Loeff Claeys Verbeke, Netherlands counsel for the Company, shall have
furnished to you their written opinion, dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a public limited liability company under the laws of The Netherlands, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Offering Circular;
(ii)The Company has an authorized share capitalization as set forth in
the Offering Circular, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and non-assessable;
(iii) The issue and sale of the Notes by the Company and the
compliance by the Company with all of the provisions of the Purchase
Agreement and the Registration Rights Agreement and the transactions
contemplated therein will not conflict with or result in a breach or
violation of any of the terms or provisions of the Articles of Association
of the Company or the provisions of any published law, rule or regulation
in The Netherlands;
(iv)No Governmental Authorization of or with any Governmental Agency
is required in The Netherlands for the issue and sale of the Notes by the
Company, or the consummation by the Company of the transactions
contemplated by the Purchase Agreement and the Registration Rights
Agreement;
(v) The Notes have been duly authorized and executed by the Company
under the laws of The Netherlands and, assuming authentication and payment,
constitute valid and legally binding obligations of the Company;
(vi)Each of the Purchase Agreement, the Indenture and the Registration
Rights Agreement has been duly authorized and executed by the Company under
the laws of The Netherlands and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms;
(vii) The choice in Section 14 of the Purchase Agreement of the laws
of the State of New York as the law governing the Purchase Agreement is
valid and binding on the Company under the laws of The Netherlands, except
(i) to the extent that any term of the Purchase Agreement or any provision
of New York law applicable to the Purchase Agreement is manifestly
incompatible with the public policy of The Netherlands, and (ii) a
Netherlands court may give effect to mandatory rules of the laws of another
jurisdiction (including The Netherlands) with which the matter under review
has a close connection, if and insofar as, under the laws of such other
jurisdiction those rules must be applied, irrespective of the governing law
chosen by the parties; the Company can sue and be sued in its own name
under the laws of The Netherlands; the consent to the jurisdiction of a New
York Court as provided in the Purchase Agreement is valid and binding on
the Company under the laws of The Netherlands, provided, that such consent
will not be given effect with respect to (a) a claim the amount of which
does not exceed NLG 5,000, (b) certain specified labor and tenancy
law-related disputes and (c) claims for provisional measures before the
president of a competent court in The Netherlands, a judgment rendered by a
New York Court will not be enforced by the court in The Netherlands, and
the claim must be relitigated before a competent Netherlands court; a
judgment rendered by a New York Court pursuant to the Purchase Agreement
will, under current practice, be recognized by a Netherlands court if such
judgment (i) results from proceedings compatible with Dutch concepts of due
process and (ii) does not contravene public policy (ordre public) of The
Netherlands; if such judgment by a New York Court is recognized by a
Netherlands court, such Netherlands court will generally grant the same
judgment without relitigation on the merits; and service of process
effected in the manner set forth in Section 14 of the Purchase Agreement
will be effective, insofar as the laws of The Netherlands are concerned to
confer valid personal jurisdiction over the Company;
(viii) Except as disclosed in the Offering Circular, no stamp or other
issuance or transfer taxes or duties and no capital gains, income,
withholding or other taxes are payable by or on behalf of the Purchasers to
The Netherlands or to any political subdivision or taxing authority thereof
or therein in connection with (A) issuance, sale and delivery by the
Company of the Notes to or for the respective accounts of the Purchasers or
(B) the sale and delivery outside The Netherlands by the Purchasers of the
Notes to the initial purchasers thereof in the manner contemplated by the
Purchase Agreement;
(ix)All payments to be made under the Notes may be made free of
withholding or deduction of any taxes of whatsoever nature, imposed,
levied, withheld or assessed by The Netherlands or any administrative
subdivision or tax authority thereof or therein; and
(x) The indemnification and contribution provisions set forth in
Section 8 of the Purchase Agreement do not contravene the public policy or
laws of The Netherlands.
(d) Anton M. Tuijten, General Counsel of the Company, shall have furnished
to you his written opinion, dated the Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a public limited liability company under the laws of The Netherlands, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Offering Circular;
(ii)the Company has an authorized capitalization as set forth in the
Offering Circular, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and non-assessable;
(iii) the Company has been duly qualified for the transaction of
business outside The Netherlands and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that he believes that both you and
he are justified in relying upon such opinions and certificates);
(iv)Each subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation; and all of the issued shares of capital
stock of each such subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable, and (except for directors'
qualifying shares and except as otherwise set forth in the Offering
Circular) are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims (such counsel being entitled
to rely in respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of officers of
the Company or its subsidiaries, provided that such counsel shall state
that he believes that both you and he are justified in relying upon such
opinions and certificates);
(v) The Company and its subsidiaries have good and marketable title to
all material real property owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are described in the
Offering Circular or such as do not 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 and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries are held
by them under valid, subsisting and enforceable leases with such exceptions
as do not have a material adverse effect on the Company and its
subsidiaries taken as a whole and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries (in giving the opinion in this clause, such counsel may state
that no examination of record titles for the purpose of such opinion has
been made, and that he is relying upon a general review of the titles of
the Company and its subsidiaries, upon opinions of local counsel and
abstracts, reports and policies of title companies rendered or issued at or
subsequent to the time of acquisition of such property by the Company or
its subsidiaries, upon opinions of counsel to the lessors of such property
and, in respect of matters of fact, upon certificates of officers of the
Company or its subsidiaries, provided that such counsel shall state that
they believe that both you and they are justified in relying upon such
opinions, abstracts, reports, policies and certificates);
(vi)To the best of such counsel's knowledge and other than as set
forth in the Offering Circular, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(vii) The issue and sale of the Notes by the Company and the
compliance by the Company with all of the provisions of the Purchase
Agreement and the Registration Rights Agreement and the consummation of the
transactions contemplated therein will not conflict with or result in a
breach or violation of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is subject, nor will such
action result in any violation of any of the provisions of the Articles of
Association of the Company or any statute, other applicable law or any
order, rule or regulation of any Governmental Agency having jurisdiction
over the Company or any of its subsidiaries or any of their properties
except, with respect in any such case to the subsidiaries of the Company,
as would not, singly or in the aggregate, have a material adverse effect on
the Company and its subsidiaries taken as whole;
(viii) No Governmental Authorization of or with any Governmental
Agency is required in The Netherlands for the issue and sale of the Notes
by the Company, or the consummation by the Company of the transactions
contemplated by the Purchase Agreement;
(ix)Other than as set forth in the Offering Circular, the Company and
each of its subsidiaries have all licenses, franchises, permits,
authorizations, approvals and orders and other concessions of and from all
Governmental Agencies that are necessary to own or lease their other
properties and conduct their current businesses as described in the
Offering Circular, with such exceptions as would not, individually or in
the aggregate, have a material adverse effect on the current or future
financial consolidated financial position, shareholders' equity or results
of operations of the Company and its subsidiaries taken as a whole;
(x) Neither the Company nor any of its subsidiaries is in violation of
its Articles of Association or other constituent documents or in default in
the performance or observance of any material obligation, agreement,
cove-nant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
(xi)The statements set forth in the Offering Circular under the
caption "Certain Tax Consequences-Certain Netherlands Tax Consequences,"
insofar as it purports to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(xii) The Notes have been duly authorized and executed by the Company
under the laws of The Netherlands and, assuming authentication and payment,
constitute valid and legally binding obligations of the Company;
(xiii) Each of the Purchse Agreement, the Indentures and the
Registration Rights Agreement has been duly authorized and executed and
delivered by the Company under the laws of The Netherlands and constitutes
a valid and legally binding instrument, enforceable in accordance with its
terms;
(xiv) The Company is not in violation of its articles of association
and, further the Company is not in material default in the performance of
any obligation, agreement or condition contained in any permit or any bond,
note, debenture or other evidence of indebtedness, except where such
violation would not have a material adverse effect on the condition
(financial or other), business, properties, prospects, net worth or results
of operations of the Company and its subsidiaries taken as a whole;
(xv)The Company is not in violation of any law, ordinance,
administrative or governmental rule or regulation of The Netherlands
applicable to the Company or of any decree of any Dutch court or Dutch
governmental agency, in each case, except where such violation would not
have a material adverse effect on the condition (financial or other)
business, properties, net worth or results of operations of the Company and
its subsidiaries taken as a whole. There are no pending formal complaints,
proceedings, investigations, protests, petitions or other written
objections against the Company at any Dutch regulatory agencies, in a
court, before any arbitrator or mediator, or before any other governmental
authority, except for matters which individu-ally or in the aggregate would
not have a material adverse effect on the condition (financial or other),
business, properties, prospects, net worth or results of operations of the
Company and its subsidiaries taken as a whole; and
(xvi) Although he does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Offering
Circular, except for those referred to in the opinion in subsection (xi) of
this Section 7(d), he has no reason to believe that, as of its date, the
Offering Circular or any supplement thereto made by the Company (other than
the financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that,
as of its date, the Offering Circular or any supplement thereto made by the
Company (other than the financial statements and related schedules therein,
as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
In giving such opinion, such counsel may state that with respect to all
matters of United States federal and New York law he has relied upon the
opinions of United States counsel for the Company delivered pursuant to
paragraph (b) of this Section 7.
(e) O.T. Zuidema, General Counsel of United Telekabel Holding N.V., shall
have furnished to you his written opinion, dated the Time of Delivery, in form
and substance satisfactory to you;
(f) With respect to the jurisdictions in which certain of the Company's
subsidiaries and certain of the New Acquisition Entities operate, listed on
Schedule II hereto, you shall have had furnished to you written opinions dated
the Time of Delivery, in the form previously provided to you, from the special
foreign counsel listed on Schedule II, in form and substance satisfactory to
you, to the effect that:
(i) Each of [Foreign Subsidiary] [and each of [insert material
subsidiaries of Foreign Subsidiary]] (collectively, the "Subsidiaries") has
been duly organized/incorporated and is validly existing as a [corporation]
and in good standing under the laws of [jurisdiction of
organization/incorporation], with the power and authority (corporate and
other) to own, lease and operate its properties and to conduct its business
as described in the Offering Circular;
(ii)All of the issued and outstanding shares of capital stock or other
equity interest of [Foreign Subsidiary] [and its Subsidiaries], have been
duly and validly authorized and issued and are fully paid and
non-assessable and (except for directors' qualifying shares and as
otherwise set forth or incorporated by reference in the Offering Circular)
are owned of record by the Company, directly or indirectly, free and clear,
to the best knowledge of such counsel after reasonable inquiry, of any
security interest, lien, encumbrance, equity or other claim.
(iii) The Company's ownership interest with respect to [Foreign
Subsidiary][and each of its Subsidiaries] is as described in the Offering
Circular;
(iv)None of [Foreign Subsidiary][or its Subsidiaries] is in violation
of its respective certificate or articles of incorporation or bylaws, or
other organizational documents; to the best knowledge of such counsel after
reasonable inquiry, none of [Foreign Subsidiary][or any of its
Subsidiaries] is in material default in the performance of any obligation,
agreement or condition contained in any permit or any bond, debenture, note
or other evidence of indebtedness, except as may be disclosed in the
Offering Circular;
(v) Neither the offer, sale or delivery of the Notes, the execution,
delivery or performance of the Purchase Agreement, compliance by the
Company with the provisions of the Purchase Agreement and consummation by
the Company of the transactions contemplated by the Transaction Documents,
including the use of proceeds, conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the
certificate or articles of incorporation or bylaws, or other organizational
documents, of [Foreign Subsidiary][or any of its Subsidiaries] or any
license, concession, franchise, other governmental authorization,
agreement, indenture, lease or other instrument to which [Foreign
Subsidiary][or any of its Subsidiaries] is a party or by which any of them
or any of their respective properties is bound that is known to such
counsel after reasonable inquiry, or, to the best knowledge of such counsel
after reasonable inquiry, will result in the creation or imposition of any
material lien, charge or encumbrance upon any property or assets of
[Foreign Subsidiary][or its Subsidiaries] nor will any such action result
in any violation of any existing law, regulation, ruling, judgment,
injunction, order or decree known to such counsel after reasonable inquiry,
applicable to [Foreign Subsidiary][or any of its Subsidiaries] or any of
their respective properties, except where such violation would not have a
material adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of [Foreign
Subsidiary][and its Subsidiaries] taken as a whole (a "Material Adverse
Effect");
(vi)To the best of our knowledge and other than as set forth in the
Offering Circular, there are no legal or governmental proceedings, or
legislation or regulations pending to which [Foreign Subsidiary][and its
Subsidiaries] are a party or of which any property of [Foreign
Subsidiary][or any of its Subsidiaries] is the subject which, if determined
adversely to [Foreign Subsidiary][or any of its Subsidiaries] or enacted,
as the case may be, would individually or in the aggregate have a Material
Adverse Effect.
(vii) [Foreign Subsidiary][and its Subsidiaries] have all necessary
licenses, concessions, franchises and other governmental authorizations,
certificates and other agreements with governmental entities, and have
filed all required notifications (collectively referred to as "Governmental
Approvals") necessary for the operation of their currently conducted
businesses in [name of country] as described or incorporated by reference
in the Offering Circular. All Governmental Approvals granted to the
[Foreign Subsidiary][and its Subsidiaries] are validly held, remain in full
force and effect, and have not been revoked, suspended, cancelled or
modified in any adverse way, and are not subject to any conditions or
requirements that are not generally imposed upon the holders of such
Governmental Approvals. [Foreign Subsidiary] [and its Subsidiaries] have
taken all steps necessary to preserve their rights to seek renewals of
their Governmental Approvals.
(viii) To the best knowledge of such counsel after reasonable enquiry,
[Foreign Subsidiary][and its Subsidiaries] are not in violation of, or in
default under, any statute of [name of country] or any applicable
governmental or administrative rule, regulation or requirement, any
Governmental Approval, or any decree of any court or governmental agency or
body having jurisdiction over [Foreign Subsidiary] [or its Subsidiaries],
applicable to [Foreign Subsidiary] [and its Subsidiaries], except for
matters which, individually or in the aggregate, would not have a Material
Adverse Effect. There are no pending formal complaints, proceedings,
investigations, protests, petitions or other written objections against
[Foreign Subsidiary] [or its Subsidiaries] at [name regulatory agency], in
a court, before any arbitrator or mediator, or before any other
governmental authority, except for matters which, individually or in the
aggregate, would not have a Material Adverse Effect.
(ix)No consent, approval, authorization or other order of, or
registration or filing with any court, regulatory body, administrative
agency or other government body is required for the execution, delivery or
performance of the Transaction Documents with respect to the Company,
[Foreign Subsidiary][and its Subsidiaries] or consummation of the
transactions contemplated thereby. The Company's execution and delivery of,
and its performance of its obligations under, the Transaction Documents,
and the consummation of the transactions contemplated thereby, do not
violate or conflict with any judgement, decree, order, statute, rule or
regulation of any governmental agency or body having jurisdiction over
[Foreign Subsidiary] [and its Subsidiaries] relating to the currently
conducted businesses of [Foreign Subsidiary] [and its Subsidiaries] and
will not cause any cancellation, termination, revocation, forfeiture or
material impairment of any of their Governmental Approvals or prevent the
Company, [Foreign Subsidiary] [and its Subsidiaries] from conducting their
respective currently conducted businesses as described in the Offering
Circular.
(x) Insofar as the statements included in the Offering Circular
purport to describe or summarize (i) contracts, agreements, Governmental
Approvals, litigation, complaints, arbitration, mediation or other legal
documents to which [Foreign Subsidiary] [and its Subsidiaries] are a party
or are bound or (ii) the provisions of statutes, laws, rules, regulations,
orders, judgments, decrees or pending legislation or regulations relating
to regulation in [name of country] of the respective currently conducted
businesses of the Company, [Foreign Subsidiary] [and its Subsidiaries],
such statements are accurate and complete in all material respects.
(g) On the date of the Offering Circular prior to the execution of this
Agreement and also at the Time of Delivery, Arthur Andersen, s.r.o.,
Pricewaterhouse Coopers N.V., Pricewaterhousecoopers (France),
Pricewaterhousecoopers (Malta), Pricewaterhousecoopers (Sweden), KPMG Polska Sp.
zo.o, KPMG Accountants N.V., KPMG Somekhchaikis, KPMG Slovensko, s.r.o., VB
Deloitte & Touche, Ernst & Young S.A, Ernst & Young (Netherlands), Ernst & Young
(Denmark), Ernst & Young AB, Ernst & Young, Vachon et Associes shall each have
furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you;
(h) The Company and its subsidiary Belmarken Holding B.V. shall have (i) at
or prior to the date of this Agreement, entered into completed loan
documentation pursuant to the Underwriting Letter dated July 10, 1999 in
relation to a credit agreement with Bank of America International Limited, CIBC
World Markets plc, Citibank N.A., MeesPierson N.V., The Royal Bank of Scotland
plc, Toronto Dominion Bank Europe Limited and The Toronto Dominion Bank (the
"Lenders") (the "Credit Agreement"), and (ii) at or prior to the date of this
Agreement, delivered to the Lenders an irrevocable and unconditional drawdown
notice in relation to funds to be delivered by the Lenders at the Time of
Delivery, and the Lenders shall have accepted such drawdown notice;
(i) None of the Company, its subsidiaries or the New Acquisition Entities
shall have sustained since the date of the latest audited financial statements
included in the Offering Circular any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Offering Circular,
and (ii) since the respective dates as of which information is given in the
Offering Circular there shall not have been: (x) any change in the capital stock
of the Company, or (y) any increase in the long-term debt of the Company or its
subsidiaries, or, to the best of the Company's knowledge after due inquiry, the
New Acquisition Entities, in excess of $25,000,000 or its equivalent, or (z) any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, condition
(financial or otherwise), shareholders' equity or results of operations of the
Company, its subsidiaries and the New Acquisition Entities, taken as a whole
otherwise than as set forth or contemplated in the Offering Circular; the effect
of which, in any such case described in Clause (i) or (ii), is in the judgment
of the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery of the Notes on the
terms and in the manner contemplated in this Agreement and in the Offering
Circular;
(j) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities;
(k) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange, the NASDAQ, the Luxembourg Stock
Exchange or Amsterdam Stock Exchange and/or the London Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's securities on the
NASDAQ or the Amsterdam Stock Exchange; (iii) a general moratorium on commercial
banking activities in New York, London or Amsterdam declared by the relevant
authorities; (iv) a change or development involving a prospective change in
Dutch taxation affecting the Company, the Notes or the transfer thereof or the
imposition of exchange controls by the United States or The Netherlands; (v) the
outbreak or escalation of hostilities involving the United States, the United
Kingdom or The Netherlands or the declaration by the United States, the United
Kingdom or The Netherlands of a national emergency or war, if the effect of any
such event specified in this Clause (v) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the offering or the
delivery of the Notes on the terms and in the manner contemplated in the
Offering Circular; or (vi) the occurrence of any material adverse change in the
existing financial, political or economic conditions in the United States, the
United Kingdom, The Netherlands or elsewhere which, in the judgment of the
Representatives, would materially and adversely affect the financial markets or
the market for the Notes and other debt securities;
(l) The Notes have been designated for trading on PORTAL;
(m) The Company has applied to list the Notes on the Luxembourg Stock
Exchange;
(n) The Company shall have furnished or caused to be furnished to you at
the Time of Delivery certificates of officers of the Company satisfactory to
you, as to the accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the performance by the Company
of all of its respective obligations hereunder to be performed at or prior to
such Time of Delivery, as to the matters set forth in subsection (i) of this
Section and as to such other matters as you may reasonably request.
(o) Arthur Andersen shall have furnished you with its written opinion,
dated the Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The statements in the Offering Circular under "Certain Tax
Consequences-Certain Netherlands Tax Consequences," to the extent such
statements relate to matters of Dutch law or regulation, are true and
accurate in all material respects, and nothing has been omitted from such
statements that would make the same misleading in any material respect;
(ii)The opinions of Arthur Andersen set forth in the Offering Circular
under "Certain Tax Consequences-Certain Netherlands Tax Consequences" are
confirmed as of the Time of Delivery; and
(iii)Except to the extent otherwise set forth in the Offering
Circular, no stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Purchasers to The Netherlands or to any political subdivision
or taxing authority thereof or therein in connection with (A) the sale and
delivery by the Company of the Notes to or for the accounts of the
Purchasers or (B) the sale and delivery by the Purchasers of the Notes to
the initial purchasers thereof in the manner contemplated herein;
8. The Company will indemnify and hold harmless each Purchaser against any
losses, claims, damages or liabilities, joint or several, to which such
Purchaser may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Offering Circular or the Offering
Circular, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact necessary
to make the statements therein not misleading, and will reimburse each Purchaser
for any legal or other expenses reasonably incurred by such Purchaser in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Offering Circular or the
Offering Circular or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Purchaser
through the Representatives expressly for use therein.
(a) Each Purchaser will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Offering Circular or the Offering Circular, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Offering Circular or the Offering Circular
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Purchaser through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(b) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action 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.
(c) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Purchasers on the other from the offering
of the Notes. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the Purchasers on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Purchasers on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Notes purchased under this Agreement (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Purchasers with respect to the Notes purchased under this Agreement, in each
case as set forth in the Offering Circular. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Purchasers on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Purchasers agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Purchasers 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 subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Purchaser shall be required to contribute any amount in excess of the amount
by which the total price at which the Notes underwritten by it and distributed
to investors were offered to investors exceeds the amount of any damages which
such Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Purchasers' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(d) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Purchaser within the meaning of the Securities Act; and the obligations of the
Purchasers under this Section 8 shall be in addition to any liability which the
respective Purchasers may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and to each person,
if any, who controls the Company within the meaning of the Securities Act.
9. If any Purchaser shall default in its obligation to purchase the Notes
which it has agreed to purchase hereunder at a Time of Delivery, you may in your
discretion arrange for you or another party or other parties to purchase such
Notes on the terms contained herein. If within thirty-six hours after such
default by any Purchaser you do not arrange for the purchase of such Notes, then
the Company shall be entitled to a further period of thirty-six hours within
which to procure another party or other parties satisfactory to you to purchase
such Notes on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Notes, or the Company notifies you that it has so arranged for the purchase
of such Notes, you or the Company shall have the right to postpone the Time of
Delivery for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Offering Circular, or in any other
documents or arrangements, and the Company agrees to prepare promptly any
amendments to the Offering Circular which in your opinion may thereby be made
necessary. The term "Purchaser" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Notes.
(a) If, after giving effect to any arrangements for the purchase of the
Notes of a defaulting Purchaser or Purchasers by you and the Company as provided
in subsection (a) above, the aggregate principal amount of such Notes which
remains unpurchased does not exceed one-eleventh of the aggregate principal
amount of all the Notes, then the Company shall have the right to require each
non-defaulting Purchaser to purchase the principal amount of Notes which such
Purchaser agreed to purchase hereunder and, in addition, to require each
non-defaulting Purchaser to purchase its pro rata share (based on the principal
amount of Notes which such Purchaser agreed to purchase hereunder) of the Notes
of such defaulting Purchaser or Purchasers for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Purchaser from
liability for its default.
(b) If, after giving effect to any arrangements for the purchase of the
Notes of a defaulting Purchaser or Purchasers by you and the Company as provided
in subsection (a) above, the aggregate principal amount of Notes which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Notes, or if the Company shall not exercise the right described in subsection
(b) above to require non-defaulting Purchasers to purchase Notes of a defaulting
Purchaser or Purchasers, then this Agreement shall thereupon terminate, without
liability on the part of any non-defaulting Purchaser or the Company, except for
the expenses to be borne by the Company and the Purchasers as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Purchaser from liability
for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Purchasers, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Purchaser or any controlling person of any Purchaser, or the Company, or
any officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Notes.
11. If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Purchaser except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the Notes are
not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Purchasers through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Purchasers in making preparations for the purchase,
sale and delivery of the Notes, but the Company shall then be under no further
liability to any Purchaser except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Purchaser made or given
by you jointly.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchasers shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Goldman Sachs
International, Peterborough Court, 133 Fleet Street, London EC4A 2BB, England,
Attention: New Issues Syndicate Desk; and if to the Company shall be delivered
or sent by mail, telex or facsimile transmission to the address of the Company
set forth in the Offering Circular, Attention: President; provided, however,
that any notice to a Purchaser pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Purchaser at
its address set forth in its Purchasers' Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Purchasers, the Company and, to the extent provided in Sections 8 and 10
hereof, the officers and directors of the Company and each person who controls
the Company or any Purchaser, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Notes from any Purchaser shall be deemed a successor or assign by reason merely
of such purchase.
14. Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding against the Company brought by any Purchaser or by any
person who controls any Purchaser arising out of or based upon this Agreement or
the transactions contemplated hereby may be instituted in any New York court,
(ii) waives, to the fullest extent it may effectively do so, any objection which
it may now or hereafter have to the laying of venue of any such proceeding, and
(iii) submits to the non-exclusive jurisdiction of such courts in any such suit,
action or proceeding. The Company has appointed CT Corporation System, New York,
New York, as its authorized agent (the "Authorized Agent") upon whom process may
be served in any such action arising out of or based on this Agreement or the
transactions contemplated hereby which may be instituted in any New York Court
by any Purchaser or by any person who controls any Purchaser; expressly consents
to the jurisdiction of any such court in respect of any such action, and waives
any other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. The Company represents and
warrants that the Authorized Agent has agreed to act as such agent for service
of process and agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of such service to the Company shall be
deemed, in every respect, effective service of process upon the Company.
15. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "Judgment Currency")
other than United States dollars, the Company will indemnify each Purchaser
against any loss incurred by such Purchaser 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 rate of exchange at which a Purchaser is able to purchase United
States dollars with the amount of the Judgment Currency actually received by
such Purchaser. The foregoing indemnity shall constitute a separate and
independent obligation of the Company and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into United States dollars.
16. Time shall be of the essence of this Agreement.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
18. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument.
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Purchasers, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Purchasers and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement among
Purchasers, the form of which shall be submitted to the Company for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
Very truly yours,
United Pan-Europe Communications N.V.
By: /s/ Mark L. Schneider
---------------------------------
Name: Mark L. Schneider
Title: Chief Executive Officer
<PAGE>
Accepted as of the date hereof:
Goldman Sachs International
By: /s/ Kenneth A.K. Martin
-------------------------------
Name: Kenneth A.K. Martin
Title: Attorney-in-fact
Donaldson, Lufkin & Jenrette International
By /s/ Marc Dien
-------------------------------
Name: Marc Dien
Title: Senior Vice President
On behalf of each of the Purchasers, except Morgan Stanley & Co. International
Limited
Accepted as of the date hereof:
Morgan Stanley & Co. International Limited
By: /s/ John Watowicz
-------------------------------
Name: John Watowicz
Title: Executive Director
<PAGE>
<TABLE>
SCHEDULE I
PURCHASER PRINCIPAL AMOUNT PRINCIPAL AMOUNT PRINCIPAL AMOUNT
OF SENIOR EURO OF SENIOR DOLLAR AT MATURITY OF
NOTES NOTES SENIOR
TO BE TO BE DISCOUNT NOTES TO
PURCHASED PURCHASED BE PURCHASED
IN EUROS IN DOLLARS IN DOLLARS
<S> <C> <C> <C>
Goldman Sachs International............................ 100,500,000 268,000,000 246,225,000
Donaldson, Lufkin & Jenrette International............. 100,500,000 268,000,000 246,225,000
Morgan Stanley & Co. International Limited............. 9,000,000 24,000,000 22,050,000
TD Securities (USA) Inc................................ 30,000,000 80,000,000 73,500,000
Bank of America International Limited.................. 9,000,000 24,000,000 22,050,000
Chase Manhattan International Limited.................. 9,000,000 24,000,000 22,050,000
CIBC World Markets Corp................................ 9,000,000 24,000,000 22,050,000
Credit Suisse First Boston (Europe) Limited............ 9,000,000 24,000,000 22,050,000
Merrill Lynch International............................ 9,000,000 24,000,000 22,050,000
Salomon Brothers International Limited................. 15,000,000 40,000,000 36,750,000
Total............................................. E300,000,000 $800,000,000 $735,000,000
</TABLE>
<PAGE>
SCHEDULE II
Jurisdictions
Belgium Stibbe Simont Monahan Duhot
Austria Bruckhaus Westrick Heller Lober
Israel Yigal Arnon & Co.
Norway Advokatfirmaet Steenstrup
France Jeantet & Associes and Nomos
Hungary Squire, Sanders & Dempsey
The Netherlands Houthoff Advocaten & Notarissen
Poland, USA, UK White & Case and Caron &
Stevens/Baker & McKenzie
Sweden Rydin & Carlsten
Czech Republic and Slovak Republic Burns Schwartz
<PAGE>
ANNEX I
(1) The Notes have not been and will not be registered under the Securities
Act and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S under
the Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act. Each Purchaser represents that it has
offered and sold the Notes, and will offer and sell the Notes (i) as part of
their distribution at any time and (ii) otherwise until 40 days after the later
of the commencement of the offering and the Time of Delivery, only in accordance
with Rule 903 of Regulation S or Rule 144A under the Securities Act.
Accordingly, each Purchaser agrees that neither it, its affiliates nor any
persons acting on its or their behalf has engaged or will engage in any directed
selling efforts with respect to the Notes, and it and they have complied and
will comply with the offering restrictions requirement of Regulation S. Each
Purchaser agrees that, at or prior to confirmation of sale of Notes (other than
a sale pursuant to Rule 144A), it will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that purchases
Notes from it during the restricted period a confirmation or notice to
substantially the following effect:
"The Notes covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered and
sold within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and the
closing date, except in either case in accordance with Regulation S (or
Rule 144A if available) under the Securities Act. Terms used above have the
meaning given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation
S.
Each Purchaser further agrees that it has not entered and will not enter
into any contractual arrangement with respect to the distribution or delivery of
the Notes, except with its affiliates or with the prior written consent of the
Company.
(2) Notwithstanding the foregoing, Notes in registered form may be offered,
sold and delivered by the Purchasers in the United States and to U.S. persons
pursuant to Section 3 of this Agreement without delivery of the written
statement required by paragraph (1) above.
(3) Each Purchaser further represents and agrees that (i) it has not
offered or sold and will not offer or sell any Notes to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995, (b) it
has complied, and will comply, with all applicable provisions of the Financial
Services Act of 1986 of Great Britain with respect to anything done by it in
relation to the Notes in, from or otherwise involving the United Kingdom, and
(c) it has only issued or passed on and will only issue or pass on in the United
Kingdom any document received by it in connection with the issuance of the Notes
to a person who is of a kind described in Article 11(3) of the Financial
Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996 of Great
Britain or is a person to whom the document may otherwise lawfully be issued or
passed on.
(4) Each Purchaser agrees that it will not offer, sell or deliver any of
the Notes, other than to individuals or legal entities, situated in or outside
The Netherlands, who or which trade or invest in securities in the conduct of
their profession or business (which includes banks, brokers, dealers, insurance
companies, pension funds, other institutional investors and other parties
(including treasury departments of commercial enterprise and finance companies
or groups), which regularly trade or invest in securities).
(5) Each Purchaser agrees that it will not offer, sell or deliver any of
the Notes in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws thereof,
and that it will take at its own expense whatever action is required to permit
its purchase and resale of the Notes in such jurisdictions. Each Purchaser
understands that no action has been taken to permit a public offering in any
jurisdiction outside the United States where action would be required for such
purpose. Each Purchaser agrees not to cause any advertisement of the Notes to be
published in any newspaper or periodical or posted in any public place and not
to issue any circular relating to the Notes, except in any such case with the
Representatives' express written consent and then only at its own risk and
expense.
