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157,000 Ordinary Shares (with no par value) of
Jupiter Telecommunications Co., Ltd.
Form of Letter Agreement
New York, New York
December [4], 2000
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Daiwa Securities America Inc.
Cazenove Inc.
Nomura Securities International, Inc.
As Overseas Representatives of the
several Overseas Underwriters,
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Each of Itochu Corporation and Toshiba Corporation (each a
"Selling Shareholder" and, together, the "Selling Shareholders") and Jupiter
Telecommunications Co., Ltd. (the "Company") are concurrently entering into a
Japanese Underwriting Agreement (the "Selling Shareholder Japanese Underwriting
Agreement") providing, among other things, for the sale to the several Japanese
Underwriters, for whom the Japanese Representatives are acting as
representatives, of an aggregate of 377,600 Ordinary Shares, with no par value
(the "Secondary Shares"), of the Company. It is understood that the Company is
concurrently entering into an Overseas Underwriting Agreement (the "Overseas
Underwriting Agreement") and an additional Japanese Underwriting Agreement
(together with the Selling Shareholder Japanese Underwriting Agreement, the
"Japanese Underwriting Agreements"). Anything herein or therein to the contrary
notwithstanding, the closings under the Overseas Underwriting Agreement and the
Japanese Underwriting Agreements are conditional on the execution, delivery and
continuing effectiveness of this Letter Agreement (this "Agreement") which the
Selling Shareholders have agreed to enter into in consideration of the benefits
they are entitled to receive pursuant to the Selling Shareholder Japanese
Underwriting Agreement. Capitalized terms used but not defined herein shall have
the meanings assigned to them in the Overseas Underwriting Agreement.
1. Representations and Warranties. Each Selling Shareholder
represents and warrants to, and agrees with, each Overseas Underwriter and the
Company that:
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(a) This Agreement has been duly authorized, executed and
delivered by such Selling Shareholder and is a valid and legally binding
agreement of such Selling Shareholder, enforceable against such Selling
Shareholder in accordance with its terms.
(b) The description of such Selling Shareholder set forth
under the captions "Principal and Selling Shareholders" and "Underwriting" in
the Prospectus is true and correct in all material respects and nothing has been
omitted therefore that would make such descriptions misleading in any material
respect.
(c) The sale of the Secondary Shares by each Selling
Shareholder pursuant to the Selling Shareholder Japanese Underwriting Agreement
is not prompted by any information concerning the Company and the Subsidiaries
that is not set forth in the Prospectus (or any supplement thereto).
2. Agreements. Each Selling Shareholder agrees with the
several Overseas Underwriters and the Company that:
(a) Each Selling Shareholder shall have furnished to the
Overseas Representatives a certificate, signed by the Chairman of the Board or
the President and the principal financial or accounting officer of such Selling
Shareholder, dated the Time of Payment of the Overseas Underwritten Securities,
to the effect that the signers of such certificate have carefully examined the
Registration Statement, the ADR Registration Statement, the Prospectus, any
supplements to the Prospectus and this Agreement and the Selling Shareholder
Japanese Underwriting Agreement and that the representations and warranties of
such Selling Shareholder in this Agreement and the Selling Shareholder Japanese
Underwriting Agreement are true and correct in all material respects on and as
of the Time of Payment of the Overseas Underwritten Securities to the same
effect as if made at such Time of Payment.
(b) Prior to the Time of Payment of the Overseas Underwritten
Securities, the Selling Shareholders shall have furnished to the Overseas
Representatives such further information, certificates and documents as the
Overseas Representatives may reasonably request.
3. Indemnification and Contribution. (a) The Company and the
Selling Shareholders jointly and severally agree to indemnify and hold harmless
each Overseas Underwriter, the directors, officers, employees and agents of each
Overseas Underwriter and each person who controls any Overseas Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the ADR
Registration Statement as originally filed or in any amendment thereof, or in
any Preliminary Prospectus or in the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be
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stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company and the Selling Shareholders will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Overseas Underwriter through the Overseas Representatives specifically for
inclusion therein. This indemnity agreement will be in addition to any liability
which the Company or the Selling Shareholders may otherwise have.
Notwithstanding the foregoing, this Section 3 is not intended to substitute,
modify or supercede the indemnity agreement of the Company included in Section 8
of the Overseas Underwriting Agreement.
(b) Each Overseas Underwriter severally and not jointly agrees
to indemnify and hold harmless each Selling Shareholder, to the same extent as
the foregoing indemnity to each Overseas Underwriter, but only with reference to
written information relating to such Overseas Underwriter furnished to the
Company by or on behalf of such Overseas Underwriter through the Overseas
Representatives specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Overseas Underwriter may otherwise have. Each Selling
Shareholder acknowledges that the statements set forth in the last paragraph of
the cover page regarding delivery of the Overseas Underwritten Securities, and
under the caption "Underwriting", (i) the list of Overseas Underwriters and
their respective participation in the sale of the Securities, and (ii) the
fourth, eighth, twelfth and thirteenth paragraphs, in any Preliminary Prospectus
and the Prospectus constitute the only information furnished in writing by or on
behalf of the several Overseas Underwriters for inclusion in any Preliminary
Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 3 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 3, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall
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bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. It is
understood, however, that the Selling Shareholders shall, in connection with any
one such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances
be liable for the fees and expenses of only one separate firm of attorneys (in
addition to any local counsel) at any time for all such Overseas Underwriters,
which firm shall be designated in writing by Xxxxxxx Xxxxx Xxxxxx Inc. and
Xxxxxxx, Sachs & Co. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
under this Overseas Underwriting Agreement (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or
proceeding and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 3 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Selling Shareholders,
jointly and severally, and the Overseas Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company, the Selling
Shareholders and one or more of the Overseas Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Shareholders on the one hand and by the Overseas
Underwriters on the other from the offering of the Overseas Underwritten
Securities and the Overseas Option Securities; provided, however, that in no
case shall any Overseas Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Overseas Underwritten
Securities and the Overseas Option Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Overseas Underwriter under this Overseas Underwriting
Agreement. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Selling Shareholders, jointly
and severally, and the Overseas Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Shareholders on the one hand
and of the Overseas
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Underwriters on the other in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company and the Selling Shareholders shall be deemed to
be equal to the total net proceeds from the offering (before deducting expenses)
received by it, and benefits received by the Overseas Underwriters shall be
deemed to be equal to the total underwriting discounts. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company or the
Selling Shareholders on the one hand or the Overseas Underwriters on the other,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company, the Selling Shareholders and the Overseas Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 3, each person who controls an Overseas Underwriter within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Overseas Underwriter shall have the same rights to
contribution as such Overseas Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and the ADR
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
(e) The liability of each Selling Shareholder under such Selling
Shareholder's representations and warranties contained in Section 1 hereof and
under the indemnity and contribution agreements contained in this Section 3
shall be limited to an amount equal to the initial public offering price of the
Secondary Shares sold by such Selling Shareholder to the Japanese Underwriters.
4. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Selling Shareholders or their respective officers and of the Overseas
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Overseas Underwriter or the Selling Shareholders, and will survive delivery of
and payment for the Secondary Shares. The provisions of Section 3 hereof shall
survive the termination or cancellation of this Underwriting Agreement.
5. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
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6. Jurisdiction. Each of the Company and the Selling
Shareholders agree that any suit, action or proceeding against the Company or
the Selling Shareholders brought by any Overseas Underwriter, the directors,
officers, employees and agents of any Overseas Underwriter, or by any person who
controls any Overseas Underwriter, arising out of or based upon this Agreement
or the transactions contemplated hereby may be instituted in any New York Court,
and waives any objection which it may now or hereafter have to the laying of
venue of any such proceeding, and irrevocably submits to the non-exclusive
jurisdiction of such courts in any suit, action or proceeding. Each of the
Company and each Selling Shareholder has appointed CT Corporation System as its
authorized agent (the "Authorized Agent") upon whom process may be served in any
suit, action or proceeding arising out of or based upon this Agreement or the
transactions contemplated herein which may be instituted in any New York Court,
by any Overseas Underwriter, the directors, officers, employees and agents of
any Overseas Underwriter, or by any person who controls any Overseas
Underwriter, and expressly accepts the non-exclusive jurisdiction of any such
court in respect of any such suit, action or proceeding. Each of the Company and
the Selling Shareholders hereby represents and warrants that the Authorized
Agent has accepted such appointment and has agreed to act as said agent for
service of process, and each of the Company and the Selling Shareholders agrees
to take any and all action, including the filing of any and all documents that
may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent shall be deemed, in
every respect, effective service of process upon the Company and the Selling
Shareholders. Notwithstanding the foregoing, any action arising out of or based
upon this Agreement may be instituted by any Overseas Underwriter, the
directors, officers, employees and agents of any Overseas Underwriter, or by any
person who controls any Overseas Underwriter, in any court of competent
jurisdiction in Japan. The provisions of this Section 6 shall survive any
termination of this Agreement, in whole or in part.
7. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of that prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of that provision in any other jurisdiction.
8. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Selling Shareholders, the Company and the several Overseas
Underwriters.
Very truly yours,
Itochu Corporation
By: ______________________________
Name:
Title:
Toshiba Corporation
By: ______________________________
Name:
Title:
Jupiter Telecommunications Co., Ltd.
By: ______________________________
Name:
Title:
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The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Xxxxxxx Xxxxx Xxxxxx Inc.
By: ______________________________
Name:
Title:
Xxxxxxx, Sachs & Co.
By: ______________________________
Name:
Title:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Daiwa Securities America Inc.
Cazenove Inc.
Nomura Securities International, Inc.
By their duly authorized attorney:
By: ______________________________
Name:
Title:
For themselves and the other several Overseas Underwriters named in Schedule I
to the Overseas Underwriting Agreement.
