Filed with the Securities and Exchange Commission on April 12, 1999 Registration
No. 333-74227
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 4
TO
FORM F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
MIH LIMITED
(Exact name of Registrant as specified in its charter)
---------------
<TABLE>
<S> <C> <C>
British Virgin Islands 4841 Inapplicable
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
---------------
Abbot Building
Mount Street
Tortola
Road Town
British Virgin Islands
(284) 494-5471
(Address, including zip code, and telephone number, including
area code, of registrant's registered offices)
---------------
CT Corporation System
1633 Broadway
New York, NY 10019
(212) 664-1666
(Name, address, including zip code, and telephone number, including
area code, of agent for service of process)
---------------
Copies to:
<TABLE>
<S> <C> <C>
Kris F. Heinzelman, Esq. Allan Rosenzweig Michael E. Michetti, Esq.
Cravath, Swaine & Moore Myriad International Holdings B.V. Cahill Gordon & Reindel
Worldwide Plaza Jupiterstraat 13-15 80 Pine Street, 17th Floor
825 Eighth Avenue 2132 HC Hoofddorp New York, New York 10005
New York, New York 10019 The Netherlands (212) 701-3000
(212) 474-1000 (31) 23 515 62870
</TABLE>
Approximate date of commencement of proposed sale to the public. As soon
as practicable after the Registration Statement becomes effective.
If any of the securities being registered on this Form are being offered
in connection on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
-------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
-------
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
-------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
---------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until the Registration Statement shall become
effective on such date as the United States Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
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<PAGE>
EXPLANATORY NOTE
This amendment to the Company's Registration Statement is being filed
solely for the purpose of filing exhibits.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant, MIH Limited, a corporation organized and existing under the
laws of the British Virgin Islands, certifies that it has duly caused this
Registration Statement on Form F-1 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Hoofddorp, The
Netherlands, on this 12th day of April, 1999.
MIH LIMITED
By: /s/ ALLAN M. ROSENZWEIG
-------------------------------------
Allan M. Rosenzweig
Group Director--Corporate Finance and
Director
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities indicated on this 12th day of April, 1999:
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
* Chairman of the Board
- ------------------------------------------
Theunissen Vosloo
* Chief Executive Officer and
- ------------------------------------------ Director
Jacobus D. T. Stofberg
* Director
- ------------------------------------------
Jacobus P. Bekker
* Director
- ------------------------------------------
Vaughan G. Bray
* Chief Executive Officer--
- ------------------------------------------ MIH Asia and Director
Johannes H. W. Hawinkels
* Chief Executive Officer--
- ------------------------------------------ Mindport and Director
Stephen Oldfield
* Director
- ------------------------------------------
Stephan J. Z. Pacak
* Chief Financial Officer
- ------------------------------------------ and Director
Lesley R. Penfold
/s/ ALLAN M. ROSENZWEIG Group Director--
- ------------------------------------------ Corporate Finance and Director
Allan M. Rosenzweig
*By: /s/ ALLAN M. ROSENZWEIG
---------------------------------
Allan M. Rosenzweig
Attorney-in-Fact
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description
--- -----------
<S> <C>
1.1 # U.S. Purchase Agreement.
1.2 # International Purchase Agreement.
3.1 # Memorandum of Association of the Registrant.
3.2 # Articles of Association of the Registrant.
5.1 Opinion of Harney Westwood & Riegels with respect to the validity of the securities being
offered.
10.1 # Shareholders' Agreement dated June 20, 1997 among Myriad International Holdings B.V., MP
Communications B.V. and NetHold Mediterranean B.V.
10.2 #* Investment & Shareholders' Agreement dated April 4, 1997 among Canal+ S.A., FilmNet
Investments B.V., Myriad Holdings Netherlands B.V., MIH Holdings Limited, MIH Limited
and Irdeto B.V.
10.3 #* Shareholders' Agreement dated February 16, 1998 among Telecom Holding Company Limited,
Shinawatra Computer and Communications Public Company Limited, MIH Limited and
International Broadcasting Corporation Public Company Limited, as supplemented by the
Supplementary Shareholders' Agreement dated May 20, 1998 and as amended by the
Amendment to Shareholders' Agreement dated September 25, 1998.
10.4 #* Greek Football Broadcasting Agreement dated December 29, 1995 between Football Societes
Anonymes Association and NetHold Hellas S.A.
10.5 #* Greek Basketball Broadcasting Agreement dated July 3, 1998 between Greek Association of
Basketball Societes Anonymes and NetHold Hellas Pay-TV Societe Anonyme.
10.6 #* Channel Distribution Agreement dated June 18, 1998 between MultiChoice Africa
(Proprietary) Limited and Electronic Media Network Limited.
10.7 #* Analogue Agreement dated March 31, 1995 between MultiChoice Africa (Proprietary) Limited
and Electronic Media Network Limited.
10.8 #* Facility Letter dated September 29, 1998 from ABSA Bank to MIH Limited.
10.9 # Loan Agreement dated February 17, 1999 between MIH Limited and MeesPierson N.V.
10.10# MIH Limited Share Scheme.
10.11# Stock Purchase Option Agreement dated March 18, 1999 between Thomson Consumer
Electronics, Inc. and MIH Limited.
10.12 Shareholders' Agreement dated June 22, 1993 among Johannesburg Consolidated Investment
Company, Limited, JCI (Isle of Man) Limited, Electronic Media Network Limited, M-Net (BVI)
Limited and M-Net International Holdings Limited, as amended.
15.1 # Letter re: unaudited interim financial information.
21# Subsidiaries of the Registrant.
23.1 # Consents of Harney Westwood & Riegels (one is included in Exhibit 5).
23.2 # Consent of Mallinicks.
23.3 # Consent of Nauta Dutilh.
23.4 # Consent of Zepos & Zepos.
23.5 # Consent of White & Case (Thailand) Limited.
23.6 # Consent of Coopers & Lybrand.
</TABLE>
- ---------------
* Indicates that portions of the exhibit have been omitted pursuant to a
request for confidential treatment and that such portions have been filed
separately with the Commission.
+ To be filed by amendment.
# Filed previously with the Commission.
EXHIBIT 5.1
12 April 1999
MIH Limited
P.O. Box 3186
Road Town, Tortola
British Virgin Islands
Dear Sirs,
MIH Limited
We have been asked as counsel to MIH Limited, a British Virgin Islands company
(the "Company") to provide this legal opinion in connection with the
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"), of the unissued Class A Ordinary Shares in the Company (the
"Shares") to be offered by the Company to members of the general public through
certain underwriters. This opinion is given in accordance with the terms of the
Legal Matters section of the Registration Statement (as defined below).
1. For the purpose of this opinion we have reviewed the following
documents:-
(a) the Registration Statement on Form F-1 provided to us (the
"Registration Statement") filed by the Company with the United States
Securities and Exchange Commission for the purpose of registering the
Shares;
(b) (i) the Memorandum and Articles of Association and certificate of
incorporation of the Company;
(ii) the directors' resolutions dated 10 February 1999 authorising the
issuance of the Shares;
(iii) the director's resolutions dated 12 April 1999 authorising the
amending and restating of the Company's Memorandum and Articles
(the "Directors' Resolutions"); and
(iv) a Registered Agent's Certificate dated 7th April 1999 issued by
Havelet Trust Company (BVI) Limited, the Registered Agent of the
Company in the British Virgin Islands.
(c) the public records of the Company as at 4th April 1999 on file with,
and available for inspection at, the Companies Registry in the British
Virgin Islands.
<PAGE>
We have also made such other enquiries and reviewed such matters of law and
examined the originals, photocopies, certified or otherwise identified to our
satisfaction, of such other documents, records, agreements and certificates as
we have considered relevant for the purposes of giving the opinion expressed
below.
2. This legal opinion is confined to and given on the basis of the laws of the
British Virgin Islands at the date hereof and as currently applied by the
courts of the British Virgin Islands. We have not investigated and we do
not express or imply nor are we qualified to express or imply any opinion
on the laws of any other jurisdiction.
3. Based on the foregoing, we are of the opinion that:-
(a) the Company is a company limited by shares, duly incorporated, validly
existing, and in good standing as a separate legal entity under the laws
and regulations of the British Virgin Islands;
(b) subject to the filing at the Companies Registry, Road Town, Tortola of
the Directors' Resolutions, the Company has full statutory authority,
corporate power and legal right to own, lease and operate its properties
and to conduct its business as described in the Registration Statement;
and
(c) subject to the filing at the Companies Registry, Road Town, Tortola of
the Directors' Resolutions, the Shares to be offered and sold by the
Company have been legally authorised and when sold pursuant to the terms
described in the Registration Statement, and paid for at least to the
extent of their par value, will be legally issued, fully paid and
non-assessable.
In connection with the above opinion, we hereby consent:-
(a) to the use of our name in the Registration Statement, the prospectus
constituting a part thereof and all amendments thereto under the caption
"Legal Matters"; and
(b) to the filing of this opinion as an exhibit to the Registration
Statement.
This opinion is addressed to you and may be relied upon by you and your
counsel. This opinion is limited to the matters detailed herein and is not to
be read as an opinion with respect to any other matter.
Yours faithfully
/s/ HARNEY WESTWOOD & RIEGELS
EXHIBIT 10.12
CERTIFIED A TRUE COPY OF THE ORIGINAL
GERALD COHEN
2nd Floor JCI House, 28 Harrison Street
Johannesburg
COMMISSIONER OF OATHS
EX OFFICIO ADMITTED ATTORNEY
SHAREHOLDERS' AGREEMENT
between
JOHANNESBURG CONSOLIDATED INVESTMENT COMPANY, LIMITED
of Consolidated Building, Corner Fox and Harrison Streets,
Johannesburg 2001 South Africa
("JCI")
and
JCI (ISLE OF MAN) LIMITED
of Pierson House, North Quay, Douglas, Isle of Man
("JIM")
and
ELECTRONIC MEDIA NETWORK LIMITED
of 11 Grove Street, Randburg, Transvaal, South Africa
("M-Net")
and
M-NET (BVI) LIMITED
of Old Scotia Building, Main Street, Road Town, Tortola, British Virgin Islands
("M-Net BVI")
and
M-NET INTERNATIONAL HOLDINGS LIMITED
of Old Scotia Building, Main Street, Road Town, Tortola, British
Virgin Islands
("MIH")
<PAGE>
1. RECITALS
1.1 JCI and M-Net are both public companies incorporated in the
Republic of South Africa and listed on the Johannesburg Stock
Exchange.
1.2 JIM is a company incorporated in the Isle of Man, all the
shares of which are indirectly held by JCI.
1.3 M-Net BVI is a company incorporated in the British Virgin
Islands and is a wholly owned subsidiary of M-Net.
1.4 MIH is a company incorporated in the British Virgin Islands,
the issued share capital of which is held as to 75% (seventy
five percent) thereof by M-Net BVI and 25% (twenty five
percent) thereof by JIM. JIM acquired its shareholding in
MIH by subscribing on 21 June 1993 for 25 shares at a total
subscription price of NLG 82,500,000 (eighty two million,
five hundred thousand Dutch Guilders).
1.5 MIH and R&R Holdings Limited SA ("R&R") each hold 50% (fifty
percent) of the issued share capital of Network Holdings SA
("Nethold"). Nethold holds, through its wholly owned
subsidiary, Network Holdings Limited ("NHL"), 90% (ninety
percent) of the issued share capital of FilmNet SA. The
remaining shares in Fi1mNet SA are held by RTL-4 SA.
1.6 The parties have agreed to enter into this agreement in order
to set out the terms and conditions governing the
relationship of JIM and M-Net BVI as co-shareholders in
MIH.
2. DEFINITIONS
In this agreement -
2.1 clause headings are for convenience only and may not be used
in its interpretation;
2.2 unless the context clearly indicates a contrary intention, an
expression which denotes any gender includes the other
genders, a natural person includes an artificial person and
vice versa, the singular includes the plural and vice
versa, and the following expressions bear the meanings
assigned to them below and cognate expressions bear
corresponding meanings -
2
<PAGE>
"DevTech group" - Development Technologies Limited and its
wholly owned subsidiaries Irdeto NV,
Irdeto BV, Irdeto Computers BV, Irdeto
Consultants BV, Paltech Limited and
Powerchip Limited;
"JCI companies" - JCI and its direct and indirect
subsidiaries;
"JIM" - JIM or its transferee in terms of 8.1;
"M-Net BVI" - M-Net BVI or its transferee in terms of
8.1 and 8.3;
"M-Net companies" - M-Net and its direct and indirect
subsidiaries;
"shareholders" - JIM and M-Net BVI;
"specified proportions" - the percentages which the nominal value of
the shares owned by each shareholder
respectively in the share capital of MIH
bear to the nominal value of all the
issued shares of MIH;
"subsidiary" - a company is a subsidiary of another
company if the other company -
a) is a member of it and holds a majority
of the voting rights in it; or
b) is a member of it and is able, by
virtue of such membership, to appoint
or remove a majority of its board of
directors; or
c) is a member of it and controls alone
or, pursuant to an agreement with other
shareholders or members, a majority of
voting rights in it; or
is a subsidiary of a company which is
itself a subsidiary of that other company.
3. APPLICATION OF SUBSCRIPTION MONIES
Unless the shareholders agree in writing to the contrary, MIH shall
use the
3
<PAGE>
subscription monies referred to in 1.4 to develop the businesses
of Nethold and/or FilmNet SA.
4. DIRECTORS
4.1 For as long as M-Net BVI owns not less than 51% (fifty one
percent) of the issued shares in MIH and JIM owns not less
than 20% (twenty percent) of the issued shares in MIH, JIM
shall be entitled to -
4.1.1 appoint 1 (one) person to the board of directors of
MIH;
4.1.2 remove and replace the person appointed by it as a
director and appoint another in his place.
Each such person shall be appointed, removed and replaced by
notice in writing to MIH. Such notice shall take effect on
receipt thereof by MIH.
4.2 At any meeting of the board, decisions shall be taken by a
majority of the votes of the directors on the board of MIH
for the time being.
4.3 For so long as 4.1.1 applies a quorum at meetings of directors
shall be 3 (three) of whom one shall be the director
appointed by JIM; provided that if a quorum is not present
within 15 minutes after the time when the meeting is
scheduled to have commenced, the meeting shall stand adjourned
until the same day of the succeeding week. At the adjourned
meeting a quorum shall be deemed to be present. Immediately
after the adjournment of the meeting at which the quorum is
not present, the chairman of MIH shall give written notice
to each of JIM and M-Net BVI advising them of the
adjournment and the time and place of the adjourned
meeting.
5. MANAGEMENT OF MIH
5.1 The shareholders shall exercise all voting rights and other
powers of control available to them in relation to MIH to
procure (in so far as they are able to do so by the
exercise of such rights and powers) that at all times
during this agreement MIH is managed and controlled by
M-Net BVI. M-Net BVI shall manage and control MIH outside
South Africa and in such manner as will ensure that -
5.1.1 MIH carries on and conducts its business and affairs
in a proper and efficient manner and for its own
benefit;
4
<PAGE>
5.1.2 MIH transacts all its business on arm's length terms;
5.1.3 MIH shall not enter into any agreement or arrangement
restricting its competitive freedom to provide and take
goods and services by such means and from and to
such persons as it may think fit;
5.1.4 the business of MIH shall be carried on pursuant to
policies laid down from time to time by the directors;
5.1.5 each shareholder has reasonable access to the books and
accounts of MIH and is supplied with all relevant
information in such form as it may reasonably
require to keep it properly informed about the
business of MIH;
5.1.6 save as may be otherwise agreed between the
shareholders, the business of MIH shall consist
exclusively of the holding and development of
interests in pay television or related businesses
operating outside of Africa;
5.1.7 save as may be otherwise agreed between the
shareholders, board meetings are convened at regular
intervals not exceeding 180 days, by not less than
30 days written notice, which notice shall be
accompanied by an agenda specifying the business to
be transacted at such meeting.
5.2 For as long as JIM owns not less than 20% (twenty percent) of
the issued share capital of MIH, the prior consent of JIM
shall be required in regard to all matters set out in 5.3.
Accordingly, no resolution shall be passed, decision made
or action taken by MIH or by any director, officer or
employee of MIH (acting on behalf of MIH) in respect of any
such matter unless the prior consent of JIM (or the
director appointed by JIM pursuant to 4.1.1) has been
obtained with express reference to the matter in question.
5.3 The matters referred to in 5.2 are -
5.3.1 any variation, amendment or alteration to the
Memorandum of Association or Articles of Association
of MIH;
5.3.2 the decision to wind-up MIH or to enter into a
compromise with its creditors;
5.3.3 any change of auditors of MIH;
5.3.4 any offer (save as referred to in this agreement) of
shares, letters of allocation or options for shares
(or convertible instruments of
5
<PAGE>
debt, irrespective of the form thereof) by MIH
otherwise than to the shareholders in the specified
proportions;
5.3.5 the giving by MIH of any guarantees, suretyships,
indemnities, or other forms of intercession;
5.3.6 the cessation of the business of MIH;
5.3.7 the sale, transfer, assignment or other disposal of a
material part of the undertaking, property and/or
assets of MIH or entering into a contract to do so;
in either case, otherwise than in the ordinary course
of the business of MIH.
5.4 Notwithstanding anything contained in 5.2 and 5.3, JIM will
not participate in the formulation and setting of policy,
including dividend policy, and will not exercise any
influence in or on the management of MIH's affairs. This
undertaking by JIM will be reviewed from time to time and
at the request of JIM by the shareholders.
6. FURTHER FINANCING
6. 1 Any further capital which is required by MIH shall be
provided, unless otherwise agreed in writing between the
shareholders, by means of overdraft or other borrowings
from third parties, provided that neither shareholder shall
be obliged to give any guarantee or indemnity on behalf of
MIH to such third parties in order to facilitate such
overdraft or borrowings.
6.2 If the directors determine that borrowing from a bank or other
third party is not desirable or possible and the shareholders
have not agreed on an alternative way of funding MIH, the
directors may issue to each shareholder a notice in
writing, requiring each of them to subscribe for further
ordinary shares in MIH in the specified proportions, for
such amount of share capital as, in the opinion of the
directors, is required to finance the business of MIH. If
either of the shareholders fails to subscribe for the whole
of its specified proportion of such share capital within
the time specified by the directors, the other shareholder
shall be entitled to subscribe for such number of shares as
is not taken up by the defaulting shareholder. If as a
result of M-Net BVI subscribing for such shares, JIM's
shareholding in MIH falls below 20% of the nominal value of
the issued share capital of MIH, then the provisions of 4.1
and 4.3 shall cease to apply.
6.3 To the extent that either shareholder suffers any loss in
relation to loans made or credit given to MIH pursuant to
this agreement by reason of any
6
<PAGE>
default of MIH the shareholders shall make contributions to
each other to the intent and effect that such losses are borne
in the specified proportions.
7. GUARANTEES AND INDEMNITIES
7.1 The shareholders agree that the aggregate amount of any actual
liability incurred by them pursuant to any joint and
several guarantee or indemnity given by them to any third
party in respect of any liabilities or obligations of MIH
or pursuant to any guarantee or indemnity (whether several
or joint and several) given in respect of such obligations
or liabilities by either of them with the written consent
of the other shall be borne by them in the specified
proportions and each shall indemnify the other and keep
such other indemnified to the extent that the liability of
the other exceeds its specified proportion.
7.2 In the event that either shareholder disposes of all its
shares to the other shareholder then the shareholder
acquiring such shares will use all reasonable endeavours to
obtain the release of that shareholder from any guarantees
and indemnities which it may have given, as referred to in
7.1, in respect of any of the liabilities or obligations
of MIH to third parties and pending the obtaining of such
release shall keep that shareholder fully and effectively
indemnified against any liability pursuant to any such
guarantees or indemnities.
8. TRANSFER OF SHARES AND PRE-EMPTIVE RIGHTS
8.1 JIM shall be entitled to transfer all the shares (but not part
only) held by it in MIH at any price or upon any terms to a
JCI company provided that -
8.1.1 the JCI company in question shall have entered into a
written agreement with the parties hereto in terms
satisfactory to such parties under which such JCI
company agrees to be bound by the terms of this
agreement and any agreement which amends or
supplements it as if it were the transferring party;
and
8.1.2 if the JCI company in question is a subsidiary of JCI,
it shall have undertaken in such written agreement
that before it ceases to be a subsidiary of JCI it
shall, subject to the provisions of 8.1.1, have
re-transferred the shares in question to another JCI
company.
7
<PAGE>
8.2 JCI shall procure that JIM does not cease to be a subsidiary
of JCI for so long as it holds shares in MIH.
8.3 The provisions of 8.1 and 8.2 shall apply, mutatis mutandis,
to M-Net and M-Net BVI as if reference therein to -
8.3.1 JCI is a reference to M-Net and vice versa;
8.3.2 JIM is a reference to M-Net BVI and vice versa;
8.3.3 the JCI companies is a reference to the M-Net
companies.
8.4 Notwithstanding anything to the contrary contained in the
Articles of Association of MIH, but subject to 8.1, a
shareholder ("the offeror") shall not be entitled to sell,
alienate or in any other manner dispose of or transfer any
of its shares and/or securities in MIH before 30 June 1996
except with the prior written consent of the other
shareholder, and thereafter only if such shares and/or other
securities ("the shares") together with the same proportion
of the offeror's claim by way of loan account against MIH,
if any, as the shares bear to all the shares and securities
in MIH beneficially owned by the offeror ("the loan
account"), have first been offered in writing ("the offer")
to the other shareholder ("the offeree").
8.5 The offer shall -
8.5.1 be open for acceptance by the offeree for a period of
30 (thirty) days following the date of receipt of
the offer by the offeree;
8.5.2 stipulate a cash price at which the offeror is prepared
to sell the shares and loan account and which shall
be payable without deduction or set-off at the
registered office of MIH (or at such other place as
the shareholders may agree on), against registration
of the shares in the name of and transfer of the
loan account to the offeree;
8.5.3 not be subject to any other term or condition, except
that the whole and not a part only of the offer must
be accepted.
8.6 Should the offeree not accept the whole of the offer, then the
offeror shall be entitled, within 30 (thirty) days after
such non-acceptance, to sell and transfer all (but not a
part only) of the shares and the whole (but not a part only)
of the loan account to a bona fide third party -
8.6.1 for a cash price which shall not be less than the price
at which the shares and loan account were offered to
the offeree and on conditions which are not more
favourable to the purchaser than
8
<PAGE>
those at which the offeree was entitled to purchase the
shares and the loan account in terms of 8.5; and
8.6.2 only if prior to and as a condition of such sale and
transfer -
8.6.2.1 the offeree will have consented in writing to
the third party in question becoming a
shareholder in MIH (which consent shall not be
unreasonably withheld), provided that if the
offeree is M-Net BVI, it may only withhold its
consent if the third party in question will be
unlikely to fulfil its financial commitments as
a shareholder or if it competes, directly or
indirectly, with any business of M-Net, MIH,
Nethold or any of its direct or indirect
subsidiaries or if it is likely to cause M-Net,
Nethold or any of the aforementioned
subsidiaries any regulatory problems, and if
the board of directors of M-Net has confirmed
M-Net BVI's decision to withhold such
consent; and
8.6.2.2 the third party in question will have agreed in
writing to be bound by the provisions of 6, 7,
8, 9, 11, 12, 13, 14, 17, 18 and 19 of this
agreement in relation to such shares and loan
account;
8.7 Notwithstanding the provisions of 8.6 the offeror shall not
be entitled to sell and transfer to a bona fide third party
the shares and loan account in terms of 8.6 if such shares
comprise a majority of the issued shares in MIH unless the
offeror shall have given written notice to the offeree of its
intention to do so, stating the full terms and conditions upon
which it intends to do so. The offeree shall have the right
within 7 (seven) days after receipt of any such notice, to
require the offeror to refrain from entering into the sale
referred to in that notice (whereupon the offeror shall be
obliged so to refrain) unless, within 21 (twenty one) days
after such request, the offeror procures an offer by the same
third party to purchase all the offeree's shares in and the
whole of its loan account against, MIH at the same share price
and upon the same terms and conditions as are set out in the
offeror's notice to the offeree.
8.8 If at any time during this agreement a shareholder ("the first
shareholder") creates an encumbrance over any of its shares in
MIH and the encumbrancer takes possession of or a receiver or
trustee is appointed over the whole or any part of such
shareholder's undertaking, property or assets then the other
shareholder ("the second shareholder") shall be entitled,
within 60 days of its becoming aware of the encumbrancer so
taking possession or of the receiver or trustee being so
appointed, to require the first shareholder to sell all the
encumbered shares in MIH for the prescribed price. The option
shall be exercised by the second
9
<PAGE>
shareholder delivering written notice to the first shareholder
stating that the option is exercised. The "prescribed price"
means such sum in respect of the shares forming the subject
matter of the option as may be agreed between the shareholders
within 21 days of the date of the notice exercising the option
or, failing such agreement, such sum as the auditors of
Nethold certify to be, in their opinion, the fair value of
those shares as between a willing buyer and a willing seller
contracting on arms length terms, as at the date of the
notice exercising the option.
9. ACQUISITION BY NETHOLD OF THE DEVTECH GROUP
It is recorded that Nethold intends acquiring the whole of the
DevTech group for a consideration of NLG28,750,000 (twenty eight
million, seven hundred and fifty thousand Dutch Guilders). The
aforesaid consideration will be discharged by the issue to MIH of
additional shares in Nethold. Simultaneously with such transaction,
R&R will subscribe for a similar number of additional shares in
Nethold for a subscription price equivalent to the consideration
payable for the DevTech group. On the occurrence of the aforesaid
transactions JIM shall invest -
9.1 if the transactions take place before the occurrence of the
transaction referred to in 10.2, a further NLG9,583,333 (nine
million, five hundred and eighty three thousand, three hundred
and thirty three Dutch Guilders); or
9.2 if the transactions take place after the occurrence of the
transaction referred to in 10.2, a further NLG 7,666,666
(seven million six hundred and sixty six thousand six hundred
and sixty six Dutch Guilders);
in MIH in order to prevent a dilution of JIM's shareholding in MIH.
10. ACQUISITION OF SHARES IN MIH BY SANLAM
It is recorded that -
10.1 Sanlam wishes to acquire a shareholding in MIH, but has as
yet been unable to obtain the approval of the South African
Reserve Bank for such investment;
10.2 JIM has undertaken to Sanlam that in the event of such
approval being obtained it will take steps which will have the
effect of reducing its shareholding in MIH by 5 percent in
order to enable Sanlam to acquire 5 percent of the issued
share capital of MIH and M-Net BVI has agreed that in such
event the provisions of 8 shall not apply to such transaction;
10
<PAGE>
10.3 if Sanlam receives Reserve Bank approval to acquire shares
in MIH, M-Net BVI shall be entitled (but not obliged) to take
steps which will have the effect of reducing its shareholding
in MIH by 5 percent in order to enable Sanlam to acquire a
further 5 percent of the issued share capital in MIH and if
M-Net BVI decides to do so JIM agrees that the provisions of 8
shall not apply to such transaction.
11. CONSEQUENTIAL LOSS
No party shall have any liability whatever, whether in contract,
delict or otherwise, for any loss of profits or any indirect or
consequential loss whatever arising out of or in connection with any
breach, default or failure to perform any obligation hereunder.
12. CONFIDENTIALITY
12.1 Each of the parties shall during this agreement and after its
termination, use all reasonable endeavours to keep
confidential (and ensure that its employees and agents shall
keep confidential) any confidential information relating to or
belonging to any party to this agreement, and shall not use or
disclose such information except with the consent of that
other party, or in accordance with the order of a Court of
competent jurisdiction.
12.2 The undertakings set out in this clause shall cease to be
binding on a party hereto in relation to a particular item of
confidential information as soon as that item of confidential
information becomes public knowledge, otherwise than by reason
of any breach of this clause by that party.
13. PROMOTION OF BUSINESS AND RESTRICTIVE COVENANT
13.1 JCI and M-Net shall procure that the JCI companies and the
M-Net companies respectively refer all material bona fide
commercial inquiries and opportunities relating in any manner
whatever to the business of pay television outside of Africa
to MIH in order to enable MIH to gain the greatest advantage
from the trade connections and goodwill of the JCI and the
M-Net companies;
13.2 JCI, JIM, M-Net and M-Net BVI (each of which are referred to
herein as "the covenantor") each covenants with MIH, that the
covenantor (whether alone or jointly with any other person,
and whether directly or indirectly, and whether as
shareholder, participator, partner, promoter, director,
11
<PAGE>
officer, agent, manager, employee, trustee or consultant of,
in or to any other person) shall not (and shall procure that
none of the other members of its group shall) at any time
("the date in question") whilst the covenantor or its
transferee in terms of 8, is the holder of any shares in MIH
(and for these purposes JCI is deemed to be a holder of shares
in MIH for as long as JIM is a holder of shares in MIH and
M-Net is deemed to be a shareholder in MIH for as long as
M-Net BVI is a shareholder in MIH) and for a period of 2 (two)
years after the date on which the covenantor ceases to be a
shareholder in MIH ("the termination date") compete directly
or indirectly with any business of MIH as carried on at the
relevant date (as defined below) in any territory in which MIH
carried on such business at the relevant date.
13.3 The expression "MIH" where used in 13.2 includes Nethold and
each direct or indirect subsidiary of MIH and Nethold to the
intent and effect that clause 13.2 shall apply in relation to
each such company as it applies in relation to MIH itself.
13.4 For the purpose of this clause 13 "the relevant date" means
the date in question or the termination date, whichever is the
earlier.
14. ARTICLES OF ASSOCIATION
In the event of any conflict between the provisions of this agreement
and the Memorandum and Articles of Association of MIH, then as
between the parties to this agreement the provisions of this
agreement shall prevail. Upon the request of either shareholder, the
shareholders shall both vote for and procure the passing of such
resolutions as may be necessary to amend the Memorandum and Articles
of Association of MIH and conform with or give effect to any of the
provisions of this agreement.
15. PROCUREMENT AND GUARANTEE
15.1 The parties hereby undertake to do and to procure the doing
of all acts which may be required to give effect to the import
or intent of this agreement, or any contract concluded
pursuant to the provisions of this agreement.
15.2 JCI hereby guarantees to M-Net the performance by JIM of its
obligations under this agreement and M-Net hereby guarantees
to JCI the performance by M-Net BVI and MIH of their
obligations under this agreement. Any amount which either JCI
or M-Net may become obliged to pay to the other of them
pursuant to the aforesaid guarantees shall, if
12
<PAGE>
the loss or damages giving rise to such obligation are
incurred in a currency other than South African Rands, be
converted into South African Rands at the financial rand rate
prevailing at the date of payment or, if after the financial
rand has ceased to exist, at the commercial rand rate
prevailing at such date.
16. BREACH
Should any party commit a material breach of any provision of this
agreement and fail to remedy such a breach within 14 days after
receiving written notice from any other party requiring it to do so,
then the party(ies) aggrieved by such breach shall be entitled,
without prejudice to its/this other rights in law, to cancel this
agreement or to claim specific performance of all of the defaulting
party's obligations, in either event, without prejudice to the
aggrieved party's(ies') right to claim damages. If this agreement is
cancelled pursuant to a material breach as aforesaid, all
restrictions on the sale and transfer of the shares in MIH shall
lapse and, notwithstanding anything to the contrary in the Articles
of Association of MIH, the directors shall be obliged to register
any transfer of shares made pursuant to or permitted by such
Articles.
17. GOVERNING LAW
This agreement shall be construed in accordance with, and the
performance of the parties, and the enforcement of their respective
rights and obligations hereunder shall be governed in all respects by
the law prevailing from time to time in the Republic of South Africa.
The parties submit to the exclusive jurisdiction of the Witwatersrand
Local Division of the Supreme Court of South Africa.
18. GENERAL
18.1 This document constitutes the sole record of the agreement
between the parties in regard to the subject matter thereof.
18.2 None of the parties shall be bound by any representation,
warranty, promise or the like relating to the subject matter
hereof which is not recorded herein.
18.3 No addition to, variation or consensual cancellation of this
agreement shall be of any force or effect unless in writing
and signed by or on behalf of the parties.
13
<PAGE>
18.4 No extension of time or indulgence which any party ("the
grantor") may grant to another ("the grantee") shall
constitute a waiver of any of the rights of the grantor, who
shall not thereby be precluded from exercising any rights
against the grantee which may have arisen in the past or which
may arise in the future.
19. ADDRESSES AND NOTICES
19.1 The parties choose the addresses set out on the face hereof
for the purposes of giving any notice, the payment of any
sum, the serving of any process and for any other purpose
arising from this agreement.
19.2 Any of the parties shall be entitled from time to time, by
written notice to the others, to vary its address to any
other address, which is not a post office box or poste
restante, provided that the parties (other than M-Net and
JCI) shall not be entitled to choose an address in the
Republic of South Africa.
19.3 Any notice required or permitted to be given in terms of this
agreement shall be valid and effective only if in writing.
19.4 Any notice given by one party to any other ("the addressee")
which -
19.4.1 is delivered by hand during the normal business hours
of the addressee at the addressee's chosen address
for the time being shall be presumed, until the
contrary is proved, to have been received by the
addressee at the time of delivery;
19.4.2 is posted by pre-paid registered post to the
addressee's chosen address for the time being, shall
be presumed, until the contrary is proved, to have
been received by the addressee on the 14th
(fourteenth) day after the date of posting;
19.4.3 is given by telex or telefax, shall be deemed (in the
absence of proof to the contrary) to have been
received within 12 (twelve) hours of transmission
where it is transmitted during normal business hours
of the receiving instrument, and within 48 (forty
eight) hours of transmission where it is transmitted
outside those business hours.
14
<PAGE>
Date Place Signature
---- ----- ---------
21/6/1993 Johannesburg /s/
- -------------------------------------------------------------------------
For and on behalf of
JOHANNESBURG CONSOLIDATED
INVESTMENT COMPANY, LIMITED
22/6/93 Isle of Man /s/
- -------------------------------------------------------------------------
For and on behalf of
JCI (ISLE OF MAN) LIMITED
21/6/93 Johannesburg /s/
- -------------------------------------------------------------------------
For and on behalf of
ELECTRONIC MEDIA NETWORK LIMITED
22/6/93 Hoofddorp /s/
- -------------------------------------------------------------------------
For and on behalf of
M-NET (BVI) LIMITED
15
<PAGE>
Date Place Signature
---- ----- ---------
22/6/93 Hoofddorp /s/
- -------------------------------------------------------------------------
For and on behalf of
M-NET INTERNATIONAL HOLDINGS LIMITED
16
<PAGE>
FIRST SUPPLEMENTARY SHAREHOLDERS' AGREEMENT
between
JOHNNIES INDUSTRIAL CORPORATION LIMITED
(formerly Johannesburg Consolidated Investment Company, Limited)
28 Harrison Street,
Johannesburg 2001, South Africa
("Johnnic")
and
JCI (ISLE OF MAN) LIMITED
of 1st Floor, Kreston House, 6 Goldie Terrace, Douglas, Isle of Man
("JIM")
and
ELECTRONIC MEDIA NETWORK LIMITED
of 11 Grove Street, Randburg, South Africa
("M-Net")
and
MIR (BVI) LIMITED
(formerly M-Net (BVI) Limited)
of Old Scotia Building, Main Street, Road Town, Tortola, British Virgin Islands
("MIH BVI")
and
MIH LIMITED
(formerly M-Net International Holdings Limited)
of Old Scotia Building, Main Street, Road Town, Tortola, British Virgin Islands
("MIH")
and
JOHNNIC (IOM) LIMITED
of 1st Floor, Kreston House, 6 Goldie Terrace, Douglas, Isle of Man
("Johnnic IOM")
and
MULTICHOICE LIMITED
of MultiChoice Building, 75 Republic Road, Randburg, South Africa
("MCL")
<PAGE>
-2-
1. RECITALS
1.1 The parties (other than Johnnic IOM and MCL) entered into a
Shareholders Agreement on 22 June 1993 ("Shareholders
Agreement") setting out the terms and conditions governing
the relationship of JIM and MIH BVI as co-shareholders in
MIH.
1.2 Clause 8.1 of the Shareholders Agreement provides that JIM
shall be entitled to transfer all of the shares (but not part
only) held by it in MIH ("the MIH Shares") at any price or
upon any terms to Johnnic or any of its direct or indirect
subsidiaries provided that such transferee shall have entered
into a written agreement acceptable to the parties to the
Shareholders Agreement agreeing to be bound by the terms of
the Shareholders Agreement.
1.3 JIM and Johnnic IOM have entered into a Share Sale Agreement
("Share Sale Agreement") pursuant to which JIM will transfer
to Johnnic IOM all of the MIH Shares with effect from 1
January 1995 subject to the condition that the parties enter
into an agreement pursuant to which Johnnic IOM agrees to be
bound by the terms of the Shareholders Agreement.
1.4 The parties to the Shareholders Agreement are willing to
consent to the transfer of the MIH Shares from JIM to
Johnnic IOM with effect from 1 January 1995 in the manner
set out above and subject to the terms set out in this
Agreement.
1.5 Clause 8.2, read with Clause 8.3 of the Shareholders
Agreements requires that MIH BVI remains a subsidiary of
M-Net.
1.6 With effect from 1 October 1993 M-Net entered into a scheme
of arrangement in terms of Section 311(1), read with Section
313 of the Companies Act, No. 61 of 1973, as amended, of
the Republic of South Africa. The scheme of arrangement
provided for, inter alia, the sale of the shares in MIH BVI
("the MIH BVI Shares") from M-Net to MCL.
1.7 The parties to the Shareholders Agreement are willing to
consent to the transfer of the MIH BVI Shares from M-Net to
MCL in the manner set out above and subject to the terms set
out in this Agreement.
2. DEFINITIONS
The same definitions and rules of interpretation used in construing
the Shareholders Agreement shall be used in construing this
Agreement.
UNDERTAKINGS BY JOHNNIC IOM
3.1 Johnnic IOM hereby undertakes with each of the other parties
to the Shareholders Agreement to observe, perform and be
bound by all of the terms of the Shareholders Agreement as
from 1 January 1995.
<PAGE>
-3 -
3.2 Johnnic IOM hereby undertakes that if it ceases to be a
subsidiary of Johnnic, it shall, prior to such event (and
subject to the provisions of Clause 8.1.1 of the Shareholders
Agreement) have transferred the MIH Shares to another Johnnic
company.
4. UNDERTAKING BY JOHNNIC
Johnnic shal1 procure that Johnnic IOM does not cease to be a
subsidiary of Johnnic for so long as Johnnic IOM holds an interest in
shares in MIH.
5. MIH SHARES
With effect from 1 January 1995, JIM shall be entitled to transfer
all of the MIH Shares held by JIM to Johnnic IOM, from which date JIM
shall be discharged from all of its liabilities under the
Shareholders Agreement.
6. UNDERTAKING BY MIH BVI
MIH BVI undertakes that if it ceases to be a subsidiary of MCL, it
shall, prior to such event (and subject to the provisions of Clause
8.1.1 of the Shareholders Agreement) have transferred the share held
by it in MIH to another MCL company.
7. UNDERTAKING BY MCL
7.1 MCL shall procure that MIH BVI does not cease to be a
subsidiary of MCL for so long as MIH BVI holds an interest in
shares in MIH.
7.2 MCL hereby undertakes with each of the other parties to the
Shareholders Agreement to observe, perform and be bound by all
of the terms of the Shareholders Agreement as from 1 October
1993.
8. MIH BVI SHARES
With effect from 1 October 1993, M-Net shall be entitled to transfer
all of the MIH BVI Shares to MCL, from which date M-Net shall be
discharged from all of its liabilities under the Shareholders
Agreement.
9. GENERAL
The provisions of clauses 17, 18 and 19 of the Shareholders
Agreement shall apply to this Agreement mutatis mutandis.
<PAGE>
-4-
Date Place Signature
---- ----- ---------
1/6/95 Johannesburg /s/
- -------------------------------------------------------------------------
For and on behalf of
JOHNNIES INDUSTRIAL CORPORATION LIMITED
30/6/95 IOM /s/
- -------------------------------------------------------------------------
For and on behalf of
JCI (ISLE OF MAN) LIMITED
30/6/95 Randburg /s/
- -------------------------------------------------------------------------
For and on behalf of
ELECTRONIC MEDIA NETWORK LIMITED
30/6/95 Randberg /s/
- -------------------------------------------------------------------------
For and on behalf of
MIH(BVI) LIMITED
30/6/95 Randburg /s/
- -------------------------------------------------------------------------
For and on behalf of
MIH LIMITED
30/6/95 IOM /s/
- -------------------------------------------------------------------------
For and on behalf of
JOHNNIC (IOM) LIMITED
30/6/95 Randburg /s/
- -------------------------------------------------------------------------
For and on behalf of
MULTICHOICE LIMITED
<PAGE>
AGREEMENT
dated 8 December 1997
between
JOHNNIES INDUSTRIAL CORPORATION LIMITED (FORMERLY JOHANNESBURG
CONSOLIDATED INVESTMENT COMPANY, LIMITED) ("JOHNNIC")
and
JCI (ISLE OF MAN) LIMITED
("JIM")
and
ELECTRONIC MEDIA NETWORK LIMITED
("M-NET")
and
MIH (BVI) LIMITED
("MIH BVI")
and
MIH LIMITED ("MIH")
and
JOHNNIC (IOM) LIMITED
("JOHNNIC IOM")
and
MIH HOLDINGS LIMITED (FORMERLY MULTICHOICE LIMITED)
("MIH")
and
SUPERSPORT INTERNATIONAL HOLDINGS LIMITED
("SSIH")
- --------------------------------------------------------------------------------
SECOND SUPPLEMENTARY SHAREHOLDERS' AGREEMENT
- --------------------------------------------------------------------------------
Mallinicks Attorneys
25 Savile Row
London W1X 1AA
<PAGE>
TABLE OF CONTENTS
1. RECORDAL ..............................................................3
2. DEFINITIONS ...........................................................3
3. TRANSFER OF MIH SHARES ................................................4
4. WAIVER.................................................................4
5. UNDERTAKING BY SSIH ...................................................4
6. GENERAL ...............................................................4
2
<PAGE>
1. RECORDAL
It is recorded that -
1.1. on 22 June 1993, Johnnic, JIM, M-Net, MIH BVI and MIH entered
into a Shareholders' Agreement (the "Shareholders'
Agreement") setting out the terms and conditions governing
the relationship of Jim and MIH BVI as co-shareholders in
MIH;
1.2. on 30 June 1995, the parties referred to in clause 1.1
together with Johnnic IOM and MIHH entered into a First
Supplementary Shareholders' Agreement (the "First
Supplementary Shareholders' Agreement") in terms of which they
agreed to the transfer by JIM of all of its shares in MIH to
Johnnic IOM and the transfer by M-Net to MIHH of all its
shares in MIH BVI;
1.3. with effect from 31 March 1995, as part of the so-called Payco
transaction, M-Net again acquired a direct 8.5% shareholding
in MIH. The balance of the shares in MIH are held as to 11% by
Johnnic IOM and as to 80.5% by MIH BVI;
1.4. M-Net wishes, with effect from 30 September 1997, and as part
of the unbundling of its SuperSport business, to transfer its
entire shareholding (the "MIH Shares") in MIH to SuperSport
International Holdings Limited ("SSIH") or a subsidiary of
SSIH.
1.5. The parties to the First Supplementary Shareholders' Agreement
are willing to consent to the transfer by M-Net to SSIH or a
subsidiary of SSIH of the MIH Shares, on the terms and
conditions set out in this Agreement.
2. DEFINITIONS
The same definitions and rules of interpretation used in construing
the Shareholders' Agreement and the First Supplementary Shareholders'
Agreement shall be used in construing this Agreement.
3
<PAGE>
3. TRANSFER OF MIH SHARES
M-Net shall, with effect from 30 September 1997, be entitled to
transfer all its MIH Shares to SSIH (or a subsidiary of SSIH), from
which date M-Net shall be discharged from all of its liabilities
under the Shareholders' Agreement and the First Supplementary
Shareholders' Agreement.
4. WAIVER
Johnnic IOM and MIH BVI hereby waive all rights of pre-emption in
respect of the MIH Shares which they may have in terms of clause 8 of
the Shareholders' Agreement.
5. UNDERTAKING BY SSIH
SSIH shall (and shall procure that if the MIH Shares are transferred
to one of its subsidiaries, such subsidiary shall) observe, perform
and be bound by all of the terms of the Shareholders' Agreement (as
amended by the First Supplementary Shareholders' Agreement) as from
the date of the transfer of the MIH Shares to it (or to its
subsidiary).
6. GENERAL
The provisions of clauses 17, 18 and 19 of the Shareholders'
Agreement shall apply to this Agreement, mutatis mutandis.
SIGNED BY )
) /s/
for and on behalf of )
JOHNNIES INDUSTRIAL )
CORPORATION LIMITED )
in the presence of )
SIGNED BY )
) /s/
for and on behalf of )
JCI (ISLE OF MAN) LIMITED )
in the presence of )
4
<PAGE>
SIGNED BY )
) /s/
for and on behalf of )
ELECTRONIC MEDIA )
NETWORK LIMITED )
in the presence of )
SIGNED BY )
) /s/
for and on behalf of )
MIH (BVI) LIMITED )
in the presence of )
SIGNED BY )
) /s/
for and on behalf of )
MIH LIMITED )
in the presence of )
SIGNED BY )
) /s/
for and on behalf of )
JOHNNIC IOM LIMITED )
in the presence of )
SIGNED BY )
) /s/
for and on behalf of )
MIH HOLDINGS )
LIMITED )
in the presence of )
SIGNED BY )
) /s/
for and on behalf of )
SUPERSPORT INTERNATIONAL )
HOLDINGS LIMITED )
in the presence of )
5
