Filed with the Securities and Exchange Commission on April 9, 1999 Registration
No. 333-74227
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 3
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. / /
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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 9th 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 9th 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.
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 3.1
TERRITORY OF THE BRITISH VIRGIN ISLANDS
THE INTERNATIONAL BUSINESS COMPANIES ACT
(CAP 291)
MEMORANDUM OF ASSOCIATION
OF
MIH LIMITED
1. NAME
The name of the Company is MIH Limited.
2. REGISTERED OFFICE
The Registered Office of the Company is at the offices of Havelet Trust
Company (BVI) Limited, P.O. Box 3186, Road Town, Tortola, British Virgin
Islands, or at such other place within the British Virgin Islands as the
Company may from time to time by a resolution of members determine.
3. REGISTERED AGENT
The Registered Agent of the Company is Havelet Trust Company (BVI)
Limited, P.O. Box 3186, Road Town, Tortola, British Virgin Islands, or
such other qualified person in the British Virgin Islands as the Company
may from time to time by a resolution of members determine.
4. GENERAL OBJECTS AND POWERS
4.1. The object of the Company is to engage in any act or activity that
is not prohibited under any law for the time being in force in the
British Virgin Islands.
4.2. The Company may not -
4.2.1. carry on business with persons resident in the British
Virgin Islands;
4.2.2. own an interest in real property situate in the British
Virgin Islands, other than a lease referred to in clause
4.3.5;
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<PAGE>
4.2.3. carry on banking or trust business, unless it is licensed
to do so under the Banks and Trust Companies Act, 1990;
4.2.4. carry on business as an insurance or reinsurance company,
insurance agent or insurance broker, unless it is licensed
under an enactment authorising it to carry on that
business;
4.2.5. carry on the business of company management, unless it is
licensed under the Company Management Act, 1990; or
4.2.6. carry on the business of providing the registered office or
the registered agent for companies incorporated in the
British Virgin Islands.
4.3. For purposes of clause 4.2.1, the Company shall not be treated as
carrying on business with persons resident in the British Virgin
Islands if -
4.3.1. it makes or maintains deposits with a person carrying on
banking business within the British Virgin Islands;
4.3.2. it makes or maintains professional contact with solicitors,
barristers, accountants, bookkeepers, trust companies,
administration companies, investment advisers or other
similar persons carrying on business within the British
Virgin Islands;
4.3.3. it prepares or maintains books and records within the
British Virgin Islands;
4.3.4. it holds, within the British Virgin Islands, meetings of
its directors or members;
4.3.5. it holds a lease of property for use as an office from
which to communicate with members or where books and
records of the Company are prepared or maintained;
4.3.6. it holds shares, debt obligations or other securities in a
company incorporated under the International Business
Companies Act or under the Companies Act; or
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<PAGE>
4.3.7. shares, debt obligations or other securities in the Company
are owned by any person resident in the British Virgin
Islands or by any company incorporated under the
International Business Companies Act or under the Companies
Act.
4.4. The Company shall have all such powers as are permitted by law for
the time being in force in the British Virgin Islands,
irrespective of corporate benefit, to perform all acts and engage
in all activities necessary or conducive to the conduct, promotion
or attainment of the object of the Company.
5. CURRENCY
The capital of the Company shall be denominated in the currency of the
United States of America.
6. AUTHORISED SHARES
The Company shall have no authorized capital, but the Company is
authorised to issue 167 778 303 shares of no par value.
7. CLASSES AND NUMBER OF SHARES
The shares which the Company is authorised to issue are divided into
three classes as follows -
7.1. 103 468 878 'A' ordinary shares of no par value ("A Shares");
7.2. 55 920 509 'B' ordinary shares of no par value ("B Shares");
7.3. 8 388 916 'C' preference shares of no par value ("Preference
Shares").
The A Shares and the B Shares are collectively referred to herein as
"Ordinary Shares". The holders of shares now or hereafter outstanding
shall have no pre-emptive right to purchase, or have offered to them for
purchase, any shares or other equity securities issued or to be issued by
the Company. The preferences, qualifications, limitations, restrictions
and the special or relative rights in respect of the rights of the shares
of each class are set out in the following clauses.
8. DESIGNATIONS, POWERS, PREFERENCES, ETC. OF PREFERENCE SHARES
3
<PAGE>
8.1. Notwithstanding anything to the contrary herein or in the
Company's Articles of Association ("Articles of Association"), the
directors are hereby expressly authorised to provide (without any
resolution of members), by resolution or resolutions, out of the
unissued Preference Shares, for one or more series of Preference
Shares and, with respect to each such series, to fix the number of
shares constituting such series and the designation of such
series, the voting powers (if any) of the shares of such series,
the relative, participating, optional or other rights (if any) and
any qualifications, preferences, limitations or restrictions of
the shares of such series, including, without limitation, the
dividend rate (and whether dividends are cumulative), conversion
rights, rights and terms of redemption (including sinking fund
provisions) and redemption price and liquidation preferences and
to increase or decrease the number of shares of any series
subsequent to the issue of shares of that series, but not below
the number of shares of such series then outstanding. The
designation and relative rights and preferences of each such
series of Preference Shares and the qualifications, limitations or
restrictions thereof, if any, which may differ from those of any
or all other series at any time outstanding, shall be filed in
accordance with the applicable provisions of British Virgin
Islands law so as to constitute an amendment to this Memorandum of
Association.
8.2. Preference Shares, regardless of series, which are converted into
other securities or other consideration, shall be retired and
cancelled and shall have the status of authorised but unissued
Preference Shares, without designation as to series.
9. DESIGNATIONS, POWERS, PREFERENCES, ETC OF ORDINARY SHARES
9.1. Save as herein otherwise provided, the A Shares and the B Shares
shall rank pari passu in all respects.
9.2. The A Shares and the B Shares shall have the following rights and
be subject to the following restrictions:
4
<PAGE>
As Regards Voting -
9.2.1. If there is only one class of Ordinary Share in issue, each
Ordinary Share shall entitle the holder thereof to one (1)
vote.
9.2.2. Subject as set out in clause 9.2.3 below, if there are A
Shares and B Shares in issue, each A Share shall entitle
the holder thereof to one (1) vote, and each B Share shall
entitle the holder thereof to three (3) votes, provided,
however, that, except as otherwise required by law, holders
of A Shares and B Shares, as such, shall not be entitled to
vote on any amendment to this Memorandum of Association or
to the Articles of Association which relates solely to the
terms of one or more outstanding series of Preference
Shares unless such amendment would adversely affect the
rights of the holders of Ordinary Shares of either class,
in which case the class so affected shall be entitled to a
class vote thereon. Except as expressly set out herein or
in the Articles of Association and subject to the
requirements of any applicable laws and the rights of any
outstanding series of Preference Shares to vote as a
separate class or series, all matters submitted to a vote
of members shall be voted on by the holders of the A Shares
and the B Shares, voting together as a single class.
9.2.3. Should any of the B Shares be converted into A Shares under
the provisions of clauses 9.2.9 to 9.2.19 hereof, then the
holders thereof shall have the rights (including the voting
rights) of A Shares.
As Regards Dividends And Distributions -
9.2.4. Subject to the preferential and other dividend rights of
any outstanding series of Preference Shares, holders of A
Shares and B Shares shall be entitled to such dividends and
other distributions in cash, shares or property of the
Company as may be declared thereon by a resolution of the
directors from time to time out of assets or funds of the
Company legally available therefor. No dividend or other
distribution may be declared or paid on any A
5
<PAGE>
Share unless a like dividend or other distribution is
simultaneously declared or paid, as the case may be, on
each B Share, nor shall any dividend or other distribution
be declared or paid on any B Share unless a like dividend
or other distribution is simultaneously declared or paid,
as the case may be, on each A Share, in each case, without
preference or priority of any kind. All dividends and
distributions on the A Shares and B Shares payable in
Ordinary Shares shall be paid in the form of A Shares to
the holders of A Shares and in the form of B Shares to the
holders of B Shares. In no event shall shares of either
class of Ordinary Share be split, divided or combined
unless the outstanding shares of the other class of
Ordinary Shares be proportionately split, divided or
combined.
9.2.5. In the event of a transaction as a result of which the A
Shares are converted into or exchanged for one or more
other securities, cash or other property (a "Class A
Conversion Event"), then from and after such Class A
Conversion Event, a holder of B Shares shall be entitled to
receive, upon the conversion of such B Shares pursuant to
clauses 9.2.9 to 9.2.19, the amount of such securities,
cash and other property that such holder would have
received if the conversion of such B Shares had occurred
immediately prior to the record date (or, if there is no
record date, the effective date) of the Class A Conversion
Event. This clause 9.2.5 shall be applicable in the same
manner to all successive conversions or exchanges of
securities issued pursuant to any Class A Conversion Event.
9.2.6. No adjustments in respect of dividends shall be made upon
the conversion of any B Share, provided, however, that, if
a B Share is converted after the record date for the
payment of a dividend or other distribution on B Shares but
before such payment, then the record holder of such B Share
at the close of business on such record date shall be
entitled to receive the dividend or other distribution
payable on such B Share on the payment date notwithstanding
the conversion thereof.
As Regards Option Rights Or Warrants -
6
<PAGE>
9.2.7. Subject to clauses 9.2.4, 9.2.5 and 9.2.6, the Company may
not issue additional B Shares or issue options, rights or
warrants to subscribe for additional B Shares, except that
the Company may make a pro rata offer to all holders of
Ordinary Shares of rights to subscribe for additional
shares of the class of Ordinary Shares held by them. The
Company may make offerings of options, rights or warrants
to subscribe for shares of any class or classes of shares
(other than B Shares) to all holders of A Shares or B
Shares if an identical offering is made simultaneously to
all the holders of the other class of Ordinary Shares. All
offerings of options, rights or warrants shall offer the
respective holders of A Shares and B Shares the right to
subscribe at the same rate per share.
As Regards Mergers -
9.2.8. In the event of a merger of the Company with or into
another entity (whether or not the Company is the surviving
entity), the holders of each A Share and B Share shall be
entitled to receive the same per share consideration as the
per share consideration, if any, received by the holders of
each share of the other class of Ordinary Shares, provided
that, if such consideration consists in any part of voting
securities (or of options or warrants to purchase, or of
securities convertible into or exchangeable for, voting
securities), then the Company may (but is not obliged to)
provide in the applicable merger agreement for the holders
of B Shares to receive, on a per share basis, voting
securities with three (3) times the number of votes per
share as those voting securities to be received by the
holders of A Shares (or options or warrants to purchase, or
securities convertible into or exchangeable for, voting
securities with three (3) times the number of votes per
share as those voting securities issuable upon exercise of
the options or warrants to be received by the holders of A
Shares, or into which the convertible or exchangeable
securities to be received by the holders of A Shares may be
converted or exchanged).
As regards Conversion Of B Shares -
9.2.9. Voluntary conversion
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<PAGE>
Each B Share shall be convertible at any
time, at the option of its record holder,
into one validly issued, fully paid and
non-assessable A Share.
9.2.10. Voluntary conversion procedure
At the time of a voluntary conversion, the
record holder of B Shares shall deliver to
the principal office of the Company or any
transfer agent for A Shares -
9.2.10.1. the certificate or certificates
representing the B Shares to be
converted, duly endorsed in
blank or accompanied by proper
instruments of transfer; and
9.2.10.2. written notice to the Company
stating that the record holder
elects to convert such share or
shares and stating the name or
names (with addresses) and the
nominations in which the
certificate or certificates
representing the A Shares
issuable upon the conversion are
to be issued and including
instructions for the delivery
thereof.
Conversions shall be deemed to have been
effected at the time when delivery is made
to the Company or its transfer agent of such
written notice and the certificate or
certificates representing the B Shares to be
converted and as of such time each Person
named in such written notice as the Person
to whom a certificate representing A Shares
is to be issued, shall be deemed to be the
holder of record of the number of A Shares
to be evidenced by that certificate. Upon
such delivery, the Company or its transfer
agent shall promptly issue and deliver at
the stated address of such record holder of
A Shares, a certificate or certificates
representing the number of A Shares to which
such record holder is entitled by reason of
such conversion and shall cause such A
Shares to be registered in the name of the
record holder.
9.2.11. Automatic conversion
8
<PAGE>
Subject to clause 9.2.12 below, each B Share
shall automatically, without any further
action on the part of the Company or any
other Person, convert into one A Share -
9.2.11.1. upon any Transfer of any B Share to any
Person other than the Initial Holder or a
Permitted Transferee; or
9.2.11.2. on the first date on which the number of B
Shares then outstanding is less than 10% of
all the then outstanding Ordinary Shares
(calculated without regard to the difference
in voting rights between the classes of
Ordinary Shares); or
9.2.11.3. if and when the directors and the holders of
a majority of the outstanding B Shares
approve the conversion of all the B Shares
into A Shares; or
9.2.11.4. if and when the directors, in their sole
discretion, elect to effect a conversion
after a determination that there has been a
material adverse change in the liquidity,
marketability or market value of the A
Shares, considered in the aggregate, due
to -
9.2.11.4.1. the exclusion of the A Shares
from trading on a national
securities exchange or the
exclusion of the A Shares from
quotation on Nasdaq National
Market or such other system then
in use; or
9.2.11.4.2. requirements under any
applicable state law,
in any such case, as a result of the
existence of the B Shares.
9.2.12. Notwithstanding anything to the contrary set
out in clause 9.2.11, a holder of B Shares
may pledge such holder's B Shares to a
financial institution pursuant to a bona
fide pledge of such B Shares as
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<PAGE>
collateral security for any indebtedness or
other obligations of any Person (the
"Pledged Shares") due to the pledgee or its
nominee, provided, however, that -
9.2.12.1. such B Shares shall not be voted
by or registered in the name of
the pledgee and shall remain
subject to the provisions of
clause 9.2.9 to 9.2.19; and
9.2.12.2. upon any foreclosure,
realisation or other similar
action by the pledgee, such
Pledged Shares shall
automatically convert into A
Shares on a share for share
basis unless all right, title
and interest in such Pledged
Shares shall be Transferred
concurrently by the pledgee or
the purchaser in such
foreclosure to a Permitted
Transferee;
9.2.13. The automatic conversion events set out in
clause 9.2.11 shall be referred to herein as
"Events of Automatic Conversion". The
determination of whether an Event of
Automatic Conversion shall have occurred
shall be made by the directors or a
committee of the directors.
9.2.14. Automatic conversion procedure
Any conversion pursuant to an Event of
Automatic Conversion shall be deemed to have
been effected at the time the Event of
Automatic Conversion occurred (the
"Conversion Time"). At the Conversion Time,
the certificate or certificates which
represented immediately prior thereto the B
Shares which were so converted (the
"Converted B Shares") shall, automatically
and without further action, represent the
same number of A Shares. Holders of
Converted B Shares shall deliver their
certificates, duly endorsed in blank or
accompanied by proper instruments of
transfer, to the principal office of the
Company or the office of any transfer agent
for A Shares, together with a notice setting
out the name or names (with addresses) and
the nominations in which the certificate or
certificates representing such A Shares are
to be issued and
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<PAGE>
including instructions for delivery thereof.
Upon such delivery, the Company or its
transfer agent shall promptly issue and
deliver at such stated address to such
holder of A Shares a certificate or
certificates representing the number of A
Shares to which such holder is entitled by
reason of such conversion, and shall cause
such A Shares to be registered in the name
of such holder. The Person entitled to
receive the A Shares issuable upon such
conversion shall be treated for all purposes
as the record holder of such A Shares at and
as of the Conversion Time and the rights of
such Person as the holder of B Shares which
have been converted shall cease and
terminate at and as of the Conversion Time,
in each case without regard to any failure
by such holder to deliver the certificates
or the notice required by this clause
9.2.14.
9.2.15. Unconverted shares: notice required
In the event of the conversion of less than
all the B Shares evidenced by a certificate
surrendered to the Company in accordance
with the procedures of this clause 9.2, the
Company shall execute and deliver to or upon
the written order of the holder of such
unconverted shares, without charge to such
holder, a new certificate evidencing the
number of B Shares not converted.
9.2.16. Retired shares
B Shares which are converted into A Shares
as provided herein shall be retired and
cancelled and shall have the status of
authorised but unissued B Shares.
9.2.17. Reservation
The Company shall at all times reserve and
keep available, out of its authorised and
unissued A Shares, for the purposes of
effecting conversions, such number of duly
authorised A Shares as shall from time to
time be sufficient to effect the conversion
of all outstanding B Shares. All the A
Shares so issuable shall, when so issued, be
duly and validly issued, fully paid and free
from liens and charges with respect to such
issuance.
11
<PAGE>
9.2.18. Determination of voting rights and Events of
Automatic Conversion
The directors of the Company or a duly
authorised committee of such directors shall
have the power to determine, in good faith
after reasonable enquiry, whether an Event
of Automatic Conversion has occurred with
respect to any B Share. A determination by
the directors of the Company or such
committee that an Event of Automatic
Conversion has occurred shall be conclusive.
As a condition to counting the votes cast by
any holder of B Shares at any annual or
special meeting of shareholders or in
connection with any written consent of
shareholders or as a condition to
registration of transfer of B Shares or for
any other purpose, the directors or a duly
authorised committee thereof, in their/its
discretion, may require the holder of such
shares to furnish such affidavits or other
proof as the directors or such committee
deems necessary or advisable to determine
whether an Event of Automatic Conversion
shall have occurred. If the directors or
such committee determines that a holder has
substantially failed to comply promptly with
any request by the directors or such
committee for such proof, such shares shall
be entitled to one (1) vote per share until
such time as the directors or such committee
determines that such holder has complied
with such request. The directors or a
committee thereof may exercise the authority
granted by this clause 9.2.15 through duly
authorised officers or agents.
9.2.19. Share legend
The Company shall include on the
certificates representing the B Shares a
legend referring to the restrictions on
Transfer and registration imposed by clauses
9.2.9 to 9.2.18.
As Regards Liquidation -
9.2.20. In the event of any voluntary or involuntary
liquidation, distribution or winding up of
the Company, after distribution in full of
the preferential and/or other amounts to be
distributed to the
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<PAGE>
holders of any outstanding series of
Preference Shares, the holders of A Shares
and B Shares shall be entitled to receive
all the remaining assets of the Company
available for distribution to its
shareholders, rateably in proportion to the
number of A Shares and B Shares held by
them. In any such distribution, A Shares and
B Shares shall be treated equally on a per
share basis.
10. VARIATION OF CLASS RIGHTS
Subject to the provisions of clause 9.2.2, the rights or
restrictions attached to all or any shares of any class or series
may be amended, modified, varied or cancelled by a resolution of
members or directors as set out in clause 13.1, provided that no
such amendment, modification, variation or cancellation which
adversely affects the rights or restrictions attaching to any class
or series of shares shall be effected without the approval of, or
ratification by, a resolution passed at a separate meeting of the
holders of the shares in question, by a simple majority of the votes
exercisable by the holders of the applicable class or series of
shares present and voting at the meeting, and the provisions of the
Articles of Association relating to meetings of members shall apply
to any such separate class meeting, except that a quorum at any such
meeting shall be a member or members present in person or by proxy
holding at least one-fifth of the issued shares of the class or
series in question, provided that, if a quorum is not so present,
the meeting shall be adjourned to the next day and the members
present or represented at the adjourned meeting shall constitute a
quorum.
11. RIGHTS NOT VARIED BY THE ISSUE OF SHARES PARI PASSU
Unless otherwise provided by the terms of issue, by this Memorandum
of Association or by the Articles of Association, any right or
restriction attached to all or any class or series of shares shall
be deemed not to be adversely affected by the creation or issue of
any other shares ranking pari passu with (but not in priority to)
any such share already issued by the Company.
12. REGISTERED SHARES AND BEARER SHARES
Shares may only be issued as registered shares and not as bearer
shares.
13. AMENDMENT OF MEMORANDUM AND ARTICLES OF ASSOCIATION
13
<PAGE>
13.1. The Company may amend its Memorandum of Association and
Articles of Association by a resolution of members or
directors.
13.2. In addition to any requirements of law and of this
Memorandum of Association, an affirmative vote of the
holders of 66-2/3 percent or more of the combined
votes of all the then outstanding Ordinary Shares,
voting together as a single class, (a "Supermajority
Vote") shall be required to -
13.2.1. alter, amend, repeal or adopt any provision
which is inconsistent with, any provision of
clauses 8, 9 or this clause 13, of this
Memorandum of Association or of Regulations
48, 49, 51, 63, 64, 65, 72, 73, 76, 77, 78,
81 or 116 of the Articles of Association;
and
13.2.2. approve any merger of the Company which
would, directly or indirectly have the
effect of making changes to this Memorandum
of Association or to the Articles of
Association which would require a
Supermajority Vote if effected directly as
an amendment to this Memorandum of
Association or to the Articles of
Association.
14. DEFINITIONS AND INTERPRETATION
In this Restated Memorandum of Association -
14.1. unless the context clearly indicates a contrary
intention, an expression which denotes any one gender
includes the other genders, a natural person includes a
juristic person and vice versa, the singular includes
the plural and vice versa and the following terms have
the meanings assigned to them below and cognate
expressions bear corresponding meanings -
"Affiliate" - in relation to any Person,
any other Person which
directly or indirectly
Controls, is Controlled or is
under common Control with,
such Person;
"Beneficial Owner" - in relation to any share,
means a Person who (i) has the
power to vote or dispose or to
direct the voting or
disposition of
14
<PAGE>
such share, directly or
indirectly, through any
agreement, arrangement or
understanding (written or
oral); or (ii) has the right
to acquire such share (whether
such right is exercisable
immediately or only after the
passage of time) pursuant to
any agreement, arrangement or
understanding (written or
oral) or upon the exercise of
conversion rights, exchange
rights, warrants or options or
otherwise, and "Beneficially
Own" and "Beneficial
Ownership" have corresponding
means;
"Control" - in relation to any Person,
(i) the holding of shares or a
similar equity interest (which
in the case of a partnership
shall refer to the partnership
interest) representing more
than 50% of all the issued
shares or of the whole equity
interest in the capital of
that Person (or of another
Person which has Control of
such Person), or (ii) the
ability to appoint the
majority of the members of the
board of directors or other
governing body of such Person,
or (iii) the ability by virtue
of the holding of shares or
the possession of voting power
in or in relation to that
Person or by virtue of any
powers conferred by the
statutes or other document
relating to the Person or the
shareholders or partners of
such Person to exercise a
dominant influence over such
Person;
"Determination Date" - the date on which B Shares
are first
15
<PAGE>
issued by the Company;
"Initial Holder" - each Person in whose name
one or more B Shares are
registered at the
Determination Date and each
joint owner of a B Share at
the Determination Date. A
Person shall cease to be an
Initial Holder once that
Person no longer holds of
record or beneficially any B
Shares. For the purposes of
the definition of Initial
Holder, if any B Shares are
registered in the name of a
Nominee, such Shares shall be
deemed to be registered in the
name of the Person for whom
such Nominee is acting and
such Shares shall be deemed
not to be registered in the
name of such Nominee;
"Nominee" - a partnership or other
entity which is acting as a
bona fide nominee for the
registration of record
ownership of securities
Beneficially Owned by another
Person and which is identified
as such at the time of such
registration;
"Permitted Transferee" - any Affiliate of an Initial
Holder;
"Person" - any individual, firm,
company, corporation, trust,
government, State or agency of
a State or any joint venture,
partnership, limited liability
company, public company
limited or other incorporated
or unincorporated body;
"Transfer" - any sale, transfer
(including a transfer made in
whole or in part without
consideration as a gift),
exchange, assignment, pledge,
encumbrance, alienation or any
other disposition or
16
<PAGE>
hypothecation of record
ownership or of Beneficial
Ownership of any share,
whether by operation of law or
otherwise, provided, however,
that (i) a pledge of any share
made in accordance with the
provisions of clause 9.2.12;
and (ii) a grant of a proxy
with respect to any share to a
Person designated by the
directors of the Company who
are soliciting proxies on
behalf of the Company shall
not be considered a "Transfer"
and provided further that, in
the case of any Transfer of
record ownership to a Nominee,
such Transfer of record
ownership shall be deemed to
be made to the Person or
Persons for whom such Nominee
is acting;
14.2. terms which have not been defined herein but have been
defined in the Articles of Association have the same
meaning when used herein.
We, International Trust Company B.V.I. Limited, of PO Box 659, Road Town,
Tortola, British Virgin Islands, for the purposes of incorporating an
International Business Company under the laws of the British Virgin Islands
hereby subscribe our name to this Memorandum of Association this 26th day of
July 1991 in the presence of:
Witness Subscriber
Sgd. by Vinora Baronville
- ---------------------------- ----------------------------
International Trust Building Authorised Signatory
Wickhams Cay For and on behalf of
Road Town, Tortola International Trust Company B.V.I. Limited
17
Exhibit 5.1
April 9, 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 draft director's resolutions authorising the amending and
restating of the Company's Memorandum and Articles (the "Directors'
Resolutions") appended hereto; 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 passing in the form or substantially the form appended
hereto and 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 passing in the form or substantially the form appended
hereto and 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, in conformity with applicable
state securities law, pursuant to duly adopted resolutions of the
directors of the Company and are 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
<PAGE>
MIH LIMITED
(the "Company")
An International Business Company
Written resolutions of the directors pursuant to
the Articles of Association of the Company
- --------------------------------------------------------------------------------
WHEREAS by written resolutions dated 199 the Company authorised the
amendment and restating of its memorandum and articles in their entirety; and
WHEREAS by written resolutions dated 23 March 1999 the Company authorised the
further amendment of its memorandum; and
WHEREAS it is noted that in both instances, the memorandum did not contain a
specific statement to the effect that the Company has no authorised capital;
and
WHEREAS the Company now deems it fit to clarify the above course of events and
rectify the same; and
WHEREAS it is therefore deemed fit and in the best interests of the Company
that the Memorandum and Articles of Association be amended and restated in its
entirety
RESOLVED:
1. That the Memorandum and Articles of Association of the Company be and is
hereby amended and restated in its entirety in terms of the Memorandum and
Articles of Association annexed hereto.
2. That in all other respects the resolutions dated 199 and 23 March
1999 remain unchanged.
3. That the registered agent of the Company be and is hereby authorised to file
the amended and restated Memorandum and Articles of Association approved by
these resolutions with the Registrar of Companies in the British Virgin
Islands in substitution for the existing Memorandum and Articles of
Association of the Company.
<PAGE>
Dated this ____ day of April 1999
<TABLE>
<S> <C> <C>
- -------------------------- ------------------------- -------------------------
T Vosloo VG Bray S Pacak
Director Director Director
- -------------------------- ------------------------- -------------------------
LR Penfold A Rosenzweig JP Bekker
Director Director Director
- -------------------------- ------------------------- -------------------------
JHW Hawinkels SG Oldfield JDT Stofberg
Director Director Director
</TABLE>
