Exhibit 10.14
EXECUTION COPY
Dated 17 March 2000
NASPERS LIMITED
and
MIH LIMITED
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VOTING POOL AGREEMENT
in respect of an agreement of shareholders
as to joint voting of shares in M-Web Holdings Limited
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION........................................3
2. EFFECTIVE DATE AND TERM...............................................5
3. CONSTITUTION OF VOTING POOL...........................................6
4. REPRESENTATION AT MEETINGS............................................6
5. DIRECTORS.............................................................7
6. MANAGEMENT OF COMPANY AND INVESTMENT DECISIONS........................7
7. SALE OF M-WEB SHARES..................................................7
8. INCONSISTENCY WITH MEMORANDUM AND ARTICLES OF ASSOCIATION............10
9. BREACH...............................................................10
10. GOOD FAITH...........................................................10
11. NOTICES..............................................................10
12. GENERAL..............................................................11
13. COSTS................................................................12
THIS VOTING POOL AGREEMENT is made on 17 March 2000 BETWEEN
(1) NASPERS LIMITED of 40 Heerengracht, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
("Naspers"); and
(2) MIH LIMITED of Abbot Building, Main Street, Road Town, Tortola, British
Virgin Islands ("MIH").
RECITALS
A. MIH through its wholly owned subsidiary, MultiChoice Investments
(Proprietary) Limited, and Naspers through its wholly owned subsidiary,
MIH Investments (Proprietary) Limited, collectively have held the
controlling interest in M-Web since the Effective Date and hold such
interest as at the date of signature of this Agreement in that:
- MIH holds approximately 64,173,515 M-Web Shares comprising
15.85% of the total number of issued M-Web Shares; and
- Naspers holds approximately 195,969,004 M-Web Shares
comprising 48.41% of the total number of M-Web Shares,
and thus the Parties collectively hold 64.26% of the total number of
issued M-Web Shares.
B. Taking into account the paramount interest of all shareholders in M-Web
in ensuring sound management of M-Web, which management is currently
exercised by MIH, and the need to maintain and enhance shareholder
value in a competitive environment, the Parties have agreed and set out
in this Agreement certain matters with respect to their shareholdings
in M-Web.
1. DEFINITIONS AND INTERPRETATION
In this Agreement:
1.1. clause headings have been inserted for convenience only and
shall not be taken into account in its construction;
1.2. unless the context clearly indicates a contrary intention, an
expression which denotes any one gender includes the other
gender, a natural person includes a juristic person and vice
versa, the singular includes the plural and vice versa
and the following expressions bear the meaning assigned to
them below and cognate expressions bear corresponding
meanings:
"Act" - the Companies Act, 1973 as amended
from time to time;
"Affiliate" - in relation to any Person, any other
Person which, directly or
indirectly, (i) is Controlled by
that Person; or (ii) Controls that
Person; or (iii) is under common
Control with that Person;
"Agreement" - this agreement;
"Board" - the board of directors of M-Web from
time to time;
"Control" - in relation to a body corporate, the
power of a Person to secure that its
affairs are conducted in accordance
with the wishes of that Person:
(a) by means of the holding of
shares or the possession of
voting power in or in relation
to that or any other body
corporate; or
(b) by virtue of any powers
conferred by the articles of
association or any other
document regulating that or any
other body corporate,
and a "Change of Control" shall
occur if a Person who controls any
company or undertaking ceases to do
so, or if another Person acquires
control of it;
"Effective Date" - 1 October 1999;
"JSE" - the Johannesburg Stock Exchange;
"Market Value" - of any M-Web Shares at any date: the
weighted average of the prices at
which M-Web Shares will have been
traded on the JSE during the thirty
days ended immediately prior to the
date in question; or of any Rights
Entitlements at any date: the
weighted average of the prices at
which those Rights Entitlements will
have been traded on the JSE during
the period before the commencement
of their listing on the JSE until
the trading day immediately prior to
the date in question;
"M-Web" - M-Web Holdings Ltd;
"M-Web Shares" - ordinary shares of 0.01 cents each
in the capital of M-Web, all such
shares ranking pari passu in all
respects and being entitled to one
vote per share;
"Parties" - MIH and Naspers;
"Person" - any person, firm, company,
corporation or other incorporated or
unincorporated body;
"Rights Entitlement" - an entitlement of any
shareholder of M-Web to take up any
securities in any rights offer of
securities by M-Web;
"Voting Pool" - the voting pool constituted by
clauses 3.1 and 3.2.
2. EFFECTIVE DATE AND TERM
2.1. Notwithstanding the date of signature hereof, this Agreement
will be effective from the Effective Date and subject to
clause 2.2, it shall continue until the first anniversary of
the Effective Date.
2.2. Each Party shall have the right to renew this Agreement from
year to year, provided that notice of the exercise of such
right shall be delivered in writing to the other Party no
later than 30 days prior to the expiry of the initial or any
renewed term.
3. CONSTITUTION OF VOTING POOL
3.1. The Parties hereby constitute a voting pool for the exercise,
in unison, of the voting rights conferred by the M-Web Shares
held by them together with all M-Web Shares accruing to either
of them pursuant to:
3.1.1. the exercise by either Party of its rights in a
rights issue in M-Web;
3.1.2. the issue of capitalisation shares in M-Web in terms
of Section 98 (4) of the Act; and
3.1.3. any M-Web Shares bought or sold on the open market by
either Party after the Effective Date.
3.2. The Parties agree that on all matters submitted for a vote of
the shareholders of M-Web, they shall exercise the voting
rights associated with the M-Web Shares to vote in such manner
as will be directed by MIH.
3.3. The Voting Pool shall continue in effect for as long as the
Parties hold M-Web Shares.
4. REPRESENTATION AT MEETINGS
4.1. Naspers shall appoint as its authorised representative (the
"Representative") to attend, speak and vote at meetings of the
shareholders of M-Web, a person nominated by MIH, which
nomination shall be subject to the prior approval of Naspers
(if obtaining such approval is practicable), which approval
shall not be unreasonably delayed or withheld.
4.2. The Representative shall also be appointed by MIH to act as
its authorised representative and shall accept and act upon
instructions from MIH to exercise the voting rights conferred
by all the M-Web Shares held by MIH
and Naspers.
5. DIRECTORS
MIH shall exercise its rights under this Agreement in order to procure
that Naspers shall be represented on the board of directors of M-Web by
not less than two directors who shall be nominated by Naspers.
6. MANAGEMENT OF COMPANY AND INVESTMENT DECISIONS
6.1. The Parties shall exercise all such voting and other rights
and powers of control in relation to M-Web as they may for the
time being possess to procure that MIH's appointment to manage
M-Web's business, which appointment commenced on 1 October
1999, continues for the duration of this Agreement.
6.2. M-Web will establish an investment committee (the "Investment
Committee") which shall comprise members of the Board, and
shall include at least one director nominated by Naspers. All
proposed investments that are greater than ZAR 5 million (a
"Proposed Investment") shall be referred to the Investment
Committee for a decision. No decision of the Investment
Committee approving or rejecting any Proposed Investment shall
be valid unless the majority vote includes the votes of the
director (or the majority of the directors) nominated by
Naspers.
7. SALE OF M-WEB SHARES
7.1. Neither of the Parties shall sell or otherwise dispose of any
of the M-Web Shares held by it or any Rights Entitlement
unless -
7.1.1. it (the "offeror") will have offered in writing to
sell the same to the other of the Parties (the
"offeree"), which offer shall -
7.1.1.1. be irrevocable and capable of acceptance for
-
7.1.1.2.1. a period of 60 days, in the case
of an offer of M-Web Shares; and
7.1.1.2.2. a period expiring not later than
two days prior to the closing date of
the relevant rights offer, in the case
of an offer of any Rights Entitlement;
and
7.1.1.2. be at a price equal to the Market Value of
the M-Web Shares or Rights Entitlement
concerned at the date of the offer, payable
in cash against delivery of the M-Web Shares
or Rights Entitlement in question in
negotiable form within -
7.1.1.2.1. seven days after acceptance of
the offer, in the case of an offer of
M-Web Shares; and
7.1.1.2.2. five days after the acceptance of
the offer, but within the period
required to enable the offeree to take
up the relevant Rights Entitlement, in
the case of an offer of any Rights
Entitlement;
7.1.2. an offer in terms of clause 7.1.1 is -
7.1.2.1. accepted, in which event the Parties shall
give effect to the sale resulting therefrom;
or
7.1.2.2. declined, in which event the offeror shall
have the right to sell or dispose of the
M-Web Shares or Rights Entitlements
concerned in accordance with, and subject to
compliance with, the provisions of clause
7.3, provided that if any shares offered are
not so disposed of within thirty days after
such declinature, the offeror shall not
dispose thereof without again offering them
for sale to the offeree in terms of this
clause 7.1.
7.2. Neither of the Parties shall permit any Rights Entitlement to
lapse unless -
7.2.1. it will have offered, not later than 96 hours before
the date and time of closing of the relevant rights
offer, to renounce the same free of consideration to
the other Party; or
7.2.2. it will have already offered such entitlement to the
other Party in terms of clause 7.1.
7.3. Neither Party shall conclude a sale of M-Web Shares to a third
party unless -
7.3.1. that third party's identity was, to the reasonable
satisfaction of the offeree, disclosed to the offeree
at the time of the offer;
7.3.2. the offeree has given its prior approval of the
disposal of the M-Web Shares in question to the third
party (and the offeree shall, in giving or
withholding such approval, act in good faith but
shall not be obliged to furnish reasons for giving or
withholding such approval);
7.3.3. the third party undertakes in writing, if and to the
extent that it is required to do so by the offeree,
to be bound by the terms and conditions of each
agreement regulating the relationship between the
Parties hereto as co-shareholders of M-Web that may
be applicable at the time of the offer.
7.4. Either Party (the "transferor") shall be entitled, without
offering the same to the other of the Parties (the "passive
member") to sell and transfer the whole, but not portion only,
of its holding of shares to its Affiliate (the "transferee"),
provided that -
7.4.1. the transferee agrees, in form and substance to the
reasonable satisfaction of the passive member, to be
bound by the provisions of this Agreement;
7.4.2. the transferor shall remain liable to perform all of
the obligations imposed on it in terms of this
Agreement, both in its own right as principal, and as
guarantor of the obligations of the transferee, and
shall procure the observance by the transferee of all
of the terms of this Agreement;
7.4.3. both transferor and transferee shall procure that
they do not cease, while the transferee retains any
portion of the M-Web Shares transferred to it, to
bear to each other the relationship of Affiliates;
and
7.4.4. if, notwithstanding clause 7.4.3, the transferor and
transferee cease, while the transferee retains any
portion of the shareholding in M-Web transferred to
it, to bear to each other the relationship of
Affiliates, the transferee shall be deemed, on the
date on which their so ceasing comes to the notice of
the passive member, to have
offered its entire holding of M-Web Shares for sale
to the passive member, mutatis mutandis on the terms
contained in clause 7.1.
8. INCONSISTENCY WITH MEMORANDUM AND ARTICLES OF ASSOCIATION
8.1. In the event of any inconsistency between the rights and
obligations inter se of the Parties under the Memorandum and
Articles of Association (or both) of M-Web for the time being
and this Agreement, the provisions of this Agreement and any
other written agreement between the Parties in relation to the
affairs of M-Web shall prevail as between the Parties.
8.2. Either of the Parties, if so requested by the other, shall
vote for and procure the passing of such special resolutions
as may be necessary to amend the Memorandum and Articles of
Association of M-Web to conform with the provisions of this
Agreement and any other written agreement between the Parties
in relation to the affairs of M-Web.
9. BREACH
If either of the Parties ("the aggrieved party") alleges that the other
Party ("the defaulting party") is in breach of any of the provisions of
this Agreement and the defaulting party has failed to remedy such
breach within fifteen business days of receipt of a written notice
given by the aggrieved party requiring the defaulting party to remedy
the breach (provided that if the breach is not capable of being
remedied within such time through no fault of the defaulting party then
within such period as may be reasonable in the circumstances) the
aggrieved party, without prejudice to any other right that it may have,
shall be entitled, at its election, to specific performance or
cancellation of this Agreement with or without a claim for damages
occasioned by such breach.
10. GOOD FAITH
The Parties shall observe the utmost good faith to each in the
observance of the provisions of this Agreement, and shall do and
procure the doing of all such acts as may be required to give effect to
the terms, purpose and intent of this Agreement.
11. NOTICES
11.1. Notices and communications under this Agreement shall be given
in writing and may be delivered to the relevant Party or sent
by registered air mail or
facsimile to the address of that Party or that Party's
facsimile number specified in 11.2.
11.2. Notices and communications shall to be addressed as follows:
11.2.1. if to Naspers - 40 Heerengracht, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇
Fax No: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
(Marked for the attention of the
Chairman)
11.2.2. if to MIH - ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
(Marked for the attention of the
Chief Executive Officer)
Fax No: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
or such other address of a party, person and/or fax number as
that Party shall have notified in writing to the other Party.
11.3. Notices and communications shall to be given and made in the
English language.
12. GENERAL
12.1. This Agreement constitutes the sole record of the agreement
between the Parties in regard to the subject matter thereof.
12.2. Neither Party shall be bound by any representation, express or
implied term, warranty, promise or the like not recorded
herein or reduced to writing and signed by the Parties or
their representatives.
12.3. No addition to, variation, or agreed cancellation of this
Agreement hereto shall be of any force or effect unless in
writing and signed by or on behalf of the Parties.
12.4. No indulgence which either Party may grant to the other shall
constitute a waiver of any of the rights of the grantor.
12.5. Any substantive provision appearing in, or as part of, any
interpretative provision of this Agreement shall have effect
in accordance with its tenor, notwithstanding the context in
which it appears.
13. COSTS
Each Party shall bear its own costs incurred in the preparation,
negotiation and drafting of this Agreement.
AS WITNESS whereof this Agreement was executed by the Parties on the day and
year first above written.
SIGNED BY: )
Name (printed): )
for and on behalf of )
NASPERS LIMITED )
in the presence of: )
SIGNED BY: )
Name (printed): )
for and on behalf of )
MIH LIMITED )
in the presence of: )
