EXHIBIT 10.11
STOCK PURCHASE OPTION AGREEMENT
AMONG
THOMSON CONSUMER ELECTRONICS, INC.,
a Delaware corporation
AND
MIH LIMITED,
a company organized under the laws of the British Virgin Islands
Dated as of March 18, 1999
STOCK PURCHASE OPTION AGREEMENT
This Stock Purchase OPTION Agreement (the "Agreement") is entered into as
of March 18, 1999, by and between THOMSON CONSUMER ELECTRONICS, INC., a Delaware
corporation (the "Buyer"), and MIH Limited, a company organized under the laws
of the British Virgin Islands (the "Seller"). The Buyer and the Seller are
referred to collectively herein as the "Parties."
RECITALS
A. Myriad International Holdings BV, a company organized under the laws of
The Netherlands ("MIH") and Buyer entered into that certain Stock Purchase
Agreement, dated as of the date hereof, whereby Buyer sold its shares of common
stock in OpenTV, Inc., a Delaware corporation, to MIH, and, in exchange, MIH
delivered a Promissory Note, dated as of the date hereof (the "Note"),
originally issued by MIH to Buyer.
B. Pursuant to the terms of the Note, Buyer has an option to convert the
outstanding principal on and accrued interest under the Note into the MIH
Limited Shares (as defined below).
C. This Agreement sets forth the terms and conditions of a transaction
whereby, if the Buyer chooses to exercise its option to purchase the MIH Limited
Shares, the Buyer will purchase from the Seller, and the Seller will sell to the
Buyer, the MIH Limited Shares in accordance with this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
SECTION 1. Definitions; Interpretations.
1.1 Certain Defined Terms.
The following terms when used in this Agreement, including its preamble
and recitals, shall have the following meanings:
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien, agreement, restriction, assessment, trust (constructive or other),
preference, priority or charge of any kind, including, without limitation (i)
any conditional sale or other title retention agreement and any lease in the
nature thereof, (ii) the filing of or agreement to give any financing statement
under the uniform commercial code of any jurisdiction, (iii) any lien or charge
arising by statute or other law, (iv) any security agreement or preferential
arrangement, (v) any stockholders' agreement, voting trust or agreement, or
proxy, or (vi) any option, warrant, or put or call agreement or arrangement. The
term Lien shall not include any resale restrictions under applicable securities
laws.
"Lockup Agreement" shall mean an agreement in the form of Exhibit A, to be
effective as of the IPO Closing Date.
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"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Tax" means any federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental (including taxes under the Internal Revenue Code
of 1986, as amended, Section 59A), customs duties, capital stock, franchise,
profits, withholding, social security (or similar), unemployment, disability,
real property, personal property, sales, use, transfer, registration, value
added, alternative or add-on minimum, estimated, or other tax of any kind
whatsoever, including any interest, penalty, or addition thereto, whether
disputed or not.
"Tax Return" means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
1.2 Note Definitions.
Unless otherwise defined herein, capitalized terms used in this Agreement,
including its preamble and recitals, shall have the meanings ascribed to them in
the Note.
SECTION 2. Exercise of Option; Purchase and Sale of MIH Limited Shares.
2.1 Conversion Option.
If the IPO Conversion Option is exercised in accordance with the terms of
the Note, Buyer shall be entitled to receive that number of Class A Ordinary
Shares of MIH Limited (the "Class A Shares") equal to (i) the aggregate
principal amount of the Note, together with unpaid interest thereon accrued to
the IPO Closing Date, divided by (ii) the initial offering price per share to
the public for such Class A Ordinary Shares of MIH Limited (without giving
effect to any underwriting discounts or commissions) (the "MIH Limited Shares").
Buyer shall be under no obligation to exercise the IPO Conversion Option
hereunder.
2.2 Purchase and Sale Transaction.
If the IPO Conversion Option is exercised in accordance with the terms of
the Note, then, on and subject to the terms and conditions of this Agreement,
Buyer agrees to purchase from Seller, and Seller agrees to issue and sell to
Buyer on the IPO Closing Date, the MIH Limited Shares, free and clear of all
Liens, for the consideration specified in Section 2.3. In addition Seller agrees
to pay to Buyer any amounts owed in lieu of fractional shares pursuant to the
terms of the Note.
2.3 Purchase Price.
The aggregate purchase price for the MIH Limited Shares shall be an amount
equal to the aggregate principal amount of the Note, together with unpaid
interest thereon accrued to the IPO Closing Date, which shall be payable by
Buyer on the IPO Closing Date by the delivery of the original Note to Seller and
the cancellation of the Note by Seller.
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2.4 The Closing.
The closing of the purchase and sale of MIH Limited Shares contemplated by
this Section 2 (the "Closing") shall take place on the IPO Closing Date. Upon
the Closing, Buyer shall be deemed to have become a holder of record of the MIH
Limited Shares as of the IPO Closing Date. All deliveries required at Closing
and all actions to be taken at Closing shall be deemed to have occurred
simultaneously and shall be effective at the same time on the IPO Closing Date
as the closing of the sale of Class A Shares sold pursuant to the IPO
Registration Statement.
2.5 Deliveries at the Closing.
On the IPO Closing Date:
(a) Seller will deliver to Buyer (i) a copy of Seller's board
resolutions as certified by the secretary of Seller, authorizing and
approving the execution, delivery and performance of this Agreement by
Seller; (ii) newly issued stock certificates in the name of Buyer
representing the MIH Limited Shares (indicating the exact number of
shares), representing good and marketable title to the MIH Limited Shares,
free and clear of all Liens; and (iii) the cash payment due in lieu of
fractional shares as provided for in the Note, in immediately available
funds in the form of cash, a wire transfer or a cashiers check.
(b) Buyer will deliver to Seller (i) a copy of Buyer's board
resolutions, as certified by the secretary of Buyer, authorizing and
approving the execution, delivery and performance of this Agreement by
Buyer; (ii) the original Note marked as "CANCELED"; (iii) all of the
Pledged Collateral (the "Pledged Collateral"), as that term is defined in
that certain Pledge Agreement between MIH and Buyer dated as of the date
hereof, including, without limitation, stock certificate no. 21 duly
registered in the name of MIH, and all stock powers related thereto,
together with duly executed UCC termination statements with respect to the
Pledged Collateral for all jurisdictions in which Buyer has filed UCC-1
financing statements related thereto, and Buyer shall have released all
Liens created by Buyer with respect to the Pledged Collateral; and (iv)
subject to Section 5.4, the Lockup Agreement duly executed by Buyer.
2.6 Conditions to Obligation to Close.
(a) Conditions to Obligation of the Buyer.
The obligation of the Buyer to consummate the transactions to be
performed by it in connection with the Closing is subject to satisfaction
of the following conditions:
(i) the representations and warranties set forth in Section
3.1 shall be true and correct in all material respects at and as of
the IPO Closing Date;
(ii) the Seller shall have performed and complied with all of
its covenants in Sections 2 and 5 hereunder in all material respects
through the Closing;
(iii) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction or
before any arbitrator wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would (A) prevent consummation of
any of the transactions contemplated by this Agreement, or (B) cause
any of the transactions contemplated by this
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Agreement to be rescinded following consummation (and no such
injunction, judgment, order, decree, ruling, or charge shall be in
effect);
(iv) the Seller shall have delivered to the Buyer a copy of
Seller's board resolutions, as certified by the secretary of Seller,
authorizing the execution, delivery and performance of this
Agreement by Seller; and
(v) the IPO Conversion Option has been exercised in accordance
with Section 2.1.
The Buyer may waive any condition specified in this Section 2.6(a)
if it executes a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of the Seller.
The obligation of the Seller to consummate the transactions to be
performed by it in connection with the Closing is subject to satisfaction
of the following conditions:
(i) the representations and warranties set forth in Section
3.2 shall be true and correct in all material respects at and as of
the IPO Closing Date;
(ii) the Buyer shall have performed and complied with all of
its covenants in Sections 2 and 5 hereunder in all material respects
through the Closing;
(iii) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction or
before any arbitrator wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would (A) prevent consummation of
any of the transactions contemplated by this Agreement or (B) cause
any of the transactions contemplated by this Agreement to be
rescinded following consummation (and no such injunction, judgment,
order, decree, ruling, or charge shall be in effect); and
(iv) the IPO Conversion Option has been exercised in
accordance with Section 2.1.
The Seller may waive any condition specified in this Section 2.6(b)
if it executes a writing so stating at or prior to the Closing.
SECTION 3. Representations and Warranties.
3.1 Representations and Warranties of the Seller.
Except as set forth in the disclosure schedule attached hereto (the
"Disclosure Schedule"), the Seller hereby represents and warrants to the Buyer
(i) as of the date hereof and, (ii) if Buyer consummates the purchase and sale
transaction under this Section 2 at the Closing, as of the IPO Closing Date,
except to the extent Seller notifies Buyer in writing prior to the Closing, by
MAC Notice (as defined in Section 5.2 below) or otherwise, in which case the
contents of such notice shall be deemed a part of the Disclosure Schedule for
purposes of such representations and warranties as of the IPO Closing Date; as
follows:
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(a) Organization of the Seller. Seller is a corporation duly
organized and validly existing under the laws of the jurisdiction of its
incorporation.
(b) Authorization of Transaction; Enforceability. All consent,
approvals, authorizations and orders necessary for the execution, delivery
and performance by Seller of this Agreement have been duly and lawfully
obtained, and Seller has full right, power, authority and capacity to
execute, deliver and perform this Agreement and to perform its obligations
hereunder. This Agreement has been duly executed and delivered by Seller
and constitutes a legal, valid and binding agreement of Seller,
enforceable against Seller in accordance with its terms.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the performance by Seller of its obligations hereunder,
will violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, or other law of any government,
governmental agency, or court to which the Seller is subject or any
provision of its corporate charter documents or bylaws.
(d) Ownership of Shares; Delivery of Good Title. The MIH Limited
Shares, when issued, sold, and delivered in accordance with this
Agreement, shall be duly and validly issued, and good and valuable
consideration has been paid therefor, and nonassessable. Upon delivery of
the certificates representing the MIH Limited Shares in accordance with
this Agreement, Buyer will have good and marketable title to all of the
MIH Limited Shares, free and clear of all Liens.
(e) Accuracy of IPO Registration Statement. The IPO Registration
Statement does not contain any untrue statement of any material fact, and
will not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading in light
of the circumstances under which such statements are made. For purposes of
this representation and warranty, a statement or omission shall not be
considered false or misleading to the extent such statement or omission is
corrected by an amendment to the IPO Registration Statement that is
delivered to Buyer prior to the IPO Closing Date.
3.2 Representations and Warranties of the Buyer.
The Buyer represents and warrants to the Seller (i) as of the date hereof
and, (ii) if Seller consummates the purchase and sale transaction under this
Section 2 at the Closing, as of the IPO Closing Date, except to the extent Buyer
notifies Seller in writing prior to the Closing; as follows:
(a) Organization of the Buyer. Buyer is a corporation duly organized
and validly existing under the laws of the jurisdiction of its
incorporation.
(b) Authorization of Transaction; Enforceability. All consent,
approvals, authorizations and orders necessary for the execution, delivery
and performance by Buyer of this Agreement have been duly and lawfully
obtained, and Buyer has full right, power, authority and capacity to
execute, deliver and perform this Agreement and to perform its obligations
hereunder. This Agreement has been duly executed and delivered by Buyer
and constitutes a legal, valid and binding agreement of Buyer, enforceable
against Buyer in accordance with its terms.
(c) IPO Registration Statement. Buyer has received and reviewed the
IPO Registration Statement and all amendments thereto timely delivered by
Seller to Buyer prior to
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the date hereof. Buyer will review prior to the IPO Closing Date all
amendments to the IPO Registration Statement that are timely delivered by
Seller to Buyer prior to the IPO Closing Date.
(d) Investment. Buyer is not acquiring the MIH Limited Shares with a
view to or for sale in connection with any distribution thereof within the
meaning of the Securities Act of 1933, as amended. Buyer is an "accredited
investor" as that term is defined in Rule 501 of the SEC under the Act (as
defined below) and has the necessary knowledge and experience to assess
the risks involved with an investment in the MIH Limited Shares. The Buyer
also understands that the MIH Limited Shares issued to the Buyer will be
"restricted securities" under Rule 144 of the Securities Act of 1933, that
the Buyer may not resell or otherwise transfer such MIH Limited Shares
without compliance with the Securities Act of 1933 and applicable state
securities laws and that it may have to bear the risk of this investment
for an indefinite period of time.
SECTION 4. Registration Rights.
The Seller covenants and agrees as follows:
4.1 Definitions.
For purposes of this Section 4:
(a) The term "Act" means the Securities Act of 1933, as amended.
(b) The term "Resale Registration Statement" means a registration
statement under the Act.
(c) The term "Holder" means Buyer or Thomson multimedia, S.A., upon
assignment from Buyer of all of its rights and obligations set forth in
this Agreement.
(d) The term "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
(e) The term "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or
ordering of effectiveness of the Resale Registration Statement.
(f) The term "Registrable Securities" means (i) the MIH Limited
Shares and (ii) any securities of the Seller issued as (or issuable upon
the conversion or exercise of any warrant, right or other security which
is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of the MIH Limited Shares. Notwithstanding
the foregoing, "Registrable Securities" shall not include any securities
sold by a person to the public, either pursuant to a registration
statement or Rule 144, or sold by a person in a transaction in which its
rights under this Section 4 are not assigned.
(g) The term "SEC" shall mean the United States Securities and
Exchange Commission.
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4.2 Filing of Resale Registration Statement.
(a) The Seller shall prepare and file with the SEC the Resale
Registration Statement with respect to all of the Registrable Securities
on or prior to the 375 calendar day anniversary of the IPO Closing Date
(the "Required Filing Date"). Seller shall use its commercially reasonable
efforts to have the Resale Registration Statement to be declared effective
by the SEC on or prior to the fifteen (15) month anniversary of the IPO
Closing Date and keep the Resale Registration Statement effective until
such date as is the earlier of (a) the date on which all such Registrable
Securities have been sold or (b) the one (1) year anniversary of the date
upon which the SEC has declared the Resale Registration Statement
effective, provided that Rule 415, or any successor rule under the Act,
permits an offering on a continuous or delayed basis, and provided further
that applicable rules under the Act governing the obligation to file a
post-effective amendment permit, in lieu of filing a post-effective
amendment which (i) includes any prospectus required by Section 10(a)(3)
of the Act or (ii) reflects facts or events representing a material or
fundamental change in the information set forth in the Resale Registration
Statement, the incorporation by reference of information required to be
included in (i) and (ii) above to be contained in periodic reports filed
pursuant to Section 13 or 15(d) of the 1934 Act in the Resale Registration
Statement. Following the effective date of the Resale Registration
Statement, the Seller shall be entitled, from time to time, to notify the
Holder to discontinue offers or sales of Registrable Securities pursuant
to the Resale Registration Statement for the period of time stated in such
notice, up to 30 days (such notice being a "Blackout Notice"), if there
has been any initiation of negotiations with respect to a material
transaction or a material circumstance which the Seller in good faith
believes would not be required to be disclosed at such time other than in
connection with a registration statement. Such notice shall be signed by
an authorized officer of the Seller and shall certify such determination.
The Seller may issue any number of Blackout Notices and such Blackout
Notices may be given consecutively, but the maximum number of days covered
by such notices shall not exceed 75 days in the aggregate and not more
than a maximum of 60 consecutive days. As a condition to use the Resale
Registration Statement, the Holder agrees that upon receipt of a Blackout
Notice the Holder shall discontinue offers and sales of Registrable
Securities pursuant to the Resale Registration Statement for such period
of time.
(b) The Seller shall prepare and file with the SEC such amendments
and supplements to the Resale Registration Statement and the prospectus
used in connection with the Resale Registration Statement as may be
necessary to comply with the applicable provisions of the Act with respect
to the disposition of all securities covered by the Resale Registration
Statement.
(c) The Seller shall furnish to the Holder such numbers of copies of
a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as it may reasonably
request in order to facilitate the disposition of Registrable Securities
owned by it.
(d) The Seller shall use its commercially reasonable efforts to
register and qualify the securities covered by the Resale Registration
Statement under such other securities or "blue sky" laws of such
jurisdictions as shall be reasonably requested by the Holder; provided
that the Seller shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) The Seller shall notify the Holder of Registrable Securities
covered by the Resale Registration Statement at any time when a prospectus
relating thereto is required to be delivered under the Act of the
happening of any event as a result of which the prospectus included in the
Resale Registration Statement, as then in effect, includes an untrue
statement of a
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material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing.
(f) The Seller shall use its commercially reasonable efforts to list
all such Registrable Securities registered pursuant hereunder on each
securities exchange on which the Class A Shares are then listed.
4.3 Payments by Seller.
If Seller has not filed the Resale Registration Statement on or prior to
the Required Filing Date, as the same may be extended as contemplated in Section
4.4(b), then the Seller will pay to the Holder as a penalty an aggregate amount
equal to the product of $1,000 multiplied by the number of days, if any, that
elapse between the Required Filing Date, as the same may be extended as
contemplated in Section 4.4(b), and the date on which the Resale Registration
Statement is actually filed with the SEC.
4.4 Furnish Information.
(a) It shall be a condition precedent to the obligations of the
Seller to take any action pursuant to Section 4.2 with respect to the
Registrable Securities of the Holder that such Holder shall timely furnish
to the Seller such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such
securities as shall be reasonably and timely requested by the Seller to
effect the registration of such Holder's Registrable Securities.
(b) If, and only if, the Holder has not provided such information in
a timely manner and a subsequent delay occurs with respect to filing the
Resale Registration Statement by the Required Filing Date, the Required
Filing Date shall be extended solely by the number of days that pass until
such information is provided by Holder.
(c) The Holder shall provide any additional information reasonably
requested by the Seller that is required to comply with any requests by
the staff of the SEC in connection with their review of the Resale
Registration Statement.
4.5 Expenses of Registration.
All expenses incurred in connection with the registration, filings or
qualifications pursuant to this Section 4, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, and
fees and disbursements of counsel for the Seller shall be borne by the Seller.
The Buyer shall be responsible for all underwriter or brokerage discounts and
commissions and the fees and disbursements of counsel for the Buyer incurred in
connection with the registration of the Registrable Securities and for all other
expenses incurred by the Buyer in connection with any sale of the Registrable
Securities, including fees, discounts and commissions of any broker dealers.
4.6 Indemnification.
(a) To the extent permitted by law, the Seller will indemnify and
hold harmless each Holder, and each person, if any, who controls such
Holder within the meaning of the Act, against any losses, claims, damages,
or liabilities (joint or several) to which they may become subject under
the Act, the 1934 Act, any federal or state securities law or any rule or
regulation
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promulgated under the Act, or the 1934 Act or any federal or state
securities law in connection with the offering covered by the Resale
Registration Statement, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon
any of the following statements, omissions or violations (collectively a
"Violation") by Seller: (i) any untrue statement or alleged untrue
statement of a material fact contained in the Resale Registration
Statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to
be stated therein, or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation by the Seller of
the Act, the 1934 Act, any federal or state securities law or any rule or
regulation promulgated under the Act, or the 1934 Act or any federal or
state securities law in connection with the offering covered by the Resale
Registration Statement; and the Seller will pay to each such Holder or
controlling person, as incurred, 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
indemnity agreement contained in this subsection 4.6(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability, or
action if such settlement is effected without the consent of the Seller
(which consent shall not be unreasonably withheld), nor shall the Seller
be liable in any such case for any such loss, claim, damage, liability, or
action to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by any
Holder or controlling person.
(b) To the extent permitted by law, each Holder will indemnify and
hold harmless the Seller, each of its directors, each of its officers who
has signed the Resale Registration Statement, and each person, if any, who
controls the Seller within the meaning of the Act against any losses,
claims, damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject, under the Act, the 1934 Act, any
federal or state securities law or any rule or regulation promulgated
under the Act, or the 1934 Act or any federal or state securities law in
connection with the offering covered by the Resale Registration Statement,
insofar as such losses, claims, damages, or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation by such
Holder, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with
the Resale Registration Statement; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this subsection 4.6(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement
contained in this subsection 4.6(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder (which consent
shall not be unreasonably withheld); provided, that, in no event shall any
indemnity under this subsection 4.6(b) exceed the gross proceeds from the
offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 4.6 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section
4.6, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel selected by the indemnifying party; provided,
however, that an indemnified party (together with all other indemnified
parties which may be represented without conflict by one counsel) shall
have the right to retain one separate counsel selected by the indemnifying
party, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would
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be inappropriate due to actual or potential differing interests between
such indemnified party and any other party represented by such counsel in
such proceeding. The failure to deliver written notice to the indemnifying
party within a reasonable time of the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
Section 4.6 to the extent of such prejudice, but the omission to so
deliver written notice to the indemnifying party will not relieve it of
any liability that it may have to any indemnified party otherwise than
under this Section 4.6.
(d) If the indemnification provided for in this Section 4.6 is held
by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense
referred to therein, then the indemnifying party, in lieu of indemnifying
such indemnified party hereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such loss, liability,
claim, damage, or expense in such proportion as is appropriate to reflect
the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or
omissions that resulted in such loss, liability, claim, damage, or expense
as well as any other relevant equitable considerations. The relative fault
of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or
omission.
(e) The obligations of the Seller and Holders under this Section 4.6
shall survive the completion of any offering of Registrable Securities in
a registration statement under this Section 4.
4.7 Reports Under Securities Exchange Act of 1934.
With a view to making available to the Holders the benefits of Rule 144
promulgated under the Act and any other rule or regulation of the SEC that may
at any time permit a Holder to sell securities of the Seller to the public
without registration, the Seller agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after ninety (90)
days after the IPO Closing Date;
(b) file with the SEC in a timely manner all reports and other
documents required of the Seller under the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by
the Seller that it has complied with the reporting requirements of SEC
Rule 144 (at any time after ninety (90) days after the effective date of
the IPO Registration Statement), the Act and the 1934 Act (at any time
after it has become subject to such reporting requirements), (ii) a copy
of the most recent annual or semi-annual report of the Seller and such
other reports and documents so filed with the SEC by the Seller, and (iii)
such other information as may be reasonably requested in availing any
Holder of any rule or regulation of the SEC which permits the selling of
any such securities without registration or pursuant to such form.
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4.8 Limitations on Subsequent Registration Rights.
(a) From and after the date of this Agreement, the Seller shall not,
without the prior written consent of the Holders, enter into any agreement
with any holder or prospective holder of any securities of the Seller
which would allow such holder or prospective holder to include such
securities in the Resale Registration Statement filed under Section 4
hereof, unless under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration
only to the extent that the inclusion of his securities will not reduce
the amount of the Registrable Securities of the Holders which is included.
4.9 No Representation or Guaranty Regarding MIH Limited Shares.
Neither MIH, MIH Limited, nor any of their respective affiliates, makes
any representation or guaranty regarding the sale by Holder of any MIH Limited
Shares, including, without limitation, the ability to sell, the availability of
purchasers therefor and the timing or price thereof.
SECTION 5. Pre-Closing Covenants.
The Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing under Section 2.
5.1 General.
Prior to the IPO Closing Date, Seller shall finalize and, to the extent
necessary, file with the Company's Registry in the British Virgin Islands,
resolutions and authorizations of the directors of Seller regarding certain
changes to the share capital of Seller, which would include a resolution and
authorization necessary for the closing of the sale of the MIH Limited Shares to
Buyer under Section 2 of this Agreement..
5.2 Notice of Changes.
Seller shall provide Buyer with a copy of each amendment to the IPO
Registration Statement promptly following the filing of such amendment with the
SEC. Seller shall timely deliver to Buyer written notification (a "MAC Notice")
of any material adverse change in the business, assets, financial condition, or
operations of MIH Limited (and in any event it shall use its best efforts to
deliver the MAC Notice within four (4) business days of the occurrence of the
material adverse change). Seller shall provide in the MAC Notice a good faith
estimate of the date of the Final Notice Date. In the event of a postponement of
the IPO Conversion Date under Section 2(a) of the Note, Seller shall provide
Holder with written notice of the new date for printing of the Red ▇▇▇▇▇▇▇
promptly following Seller's good faith determination of such date.
5.3 Analyst Reports.
Seller shall use commercially reasonable efforts to provide a copy of the
analyst reports related to the IPO Registration Statement to Buyer promptly
following their publication. TCE shall hold such analyst reports in confidence
and shall not use or divulge or disclose any of the information contained
therein (except after and to the extent such information is made available to
the public) to any person or entity, except such employees, agents, advisors and
representatives of TCE who need to know such information for purposes of
assessing whether TCE should exercise the IPO Conversion Option.
11
5.4 Lockup Agreement.
In the event any of Seller's significant shareholders signs only lockup
agreements (the "Alternative Lockup Agreements") that contain substantially
different terms than the Lockup Agreement, Seller agrees that Buyer may, at its
option, sign such Alternative Lockup Agreements in lieu of the Lockup Agreement.
Seller shall notify Buyer promptly of any Alternative Lockup Agreements.
SECTION 6. Post-Closing Covenant.
In case at any time after the Closing any further action is necessary to
carry out the purchase and sale transaction under Section 2, each of the Parties
will take such further action (including the execution and delivery of such
further instruments and documents) as any other Party reasonably may request in
writing, all at the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefor under Section 8 below).
SECTION 7. Mindport Subscription Option.
7.1 Subscription Option.
If (i) Buyer purchases the MIH Limited Shares hereunder pursuant to its
exercise of the IPO Conversion Option in accordance herewith, and (ii) Mindport
publicly files a registration statement with the SEC for an initial public
offering of its equity securities (the "Mindport Securities"), on a firmly
underwritten basis (the "Mindport IPO") on or before the second anniversary of
the IPO Closing Date, then Buyer shall have the right, at its option, to
purchase a portion of the Mindport Securities (the "Mindport Shares") offered in
the Mindport IPO and registered under the registration statement in connection
therewith, in accordance with this Section 7 (the "Mindport Subscription
Option"). Buyer hereby acknowledges and agrees that neither MIH, MIH Limited,
nor any of their affiliates (a) has any obligation to conduct a public offering
with respect to Mindport or any other entity, or (b) makes any representation or
guaranty with respect to (i) whether any Mindport Securities will become
publicly traded, (ii) whether Mindport will ever initiate a public offering of
any shares of its capital stock, or (iii) whether the securities of any other
entity within the MIH group or the Mindport group (including, without
limitation, any affiliate of MIH, MIH Limited or Mindport) will become publicly
traded.
7.2 Option Procedure and Exercise.
Seller shall cause Mindport to deliver written notice (the "Subscription
Notice") to Buyer of its intention to conduct a Mindport IPO, as soon after the
time Mindport can offer its shares to Buyer in compliance with United States
securities laws as is practicable, which notice shall be accompanied by a copy
of the registration statement most recently filed by Mindport with the SEC with
respect to the Mindport IPO. Buyer shall have the option to purchase the
Mindport Shares by delivery of written notice to Seller and Mindport (the
"Exercise Notice") of its intention to exercise its Mindport Subscription Option
on or before the close of business on the date that is ten (10) days after the
receipt by Buyer of the Subscription Notice. Seller shall provide Buyer with
appropriate instructions for providing notice to Mindport. In the event Buyer
exercises its Mindport Subscription Option in accordance with this Section 7.2,
and subject to the limitation in the following sentence, Buyer shall be entitled
to purchase on the closing date of the Mindport IPO ("Mindport Closing Date")
the number of Mindport Shares to be offered by Mindport in the Mindport IPO
equal to the quotient of (i) the aggregate Fair Market Value (as defined below)
of the MIH Limited Shares then owned by Buyer as of the date Buyer delivers the
Exercise Notice,
12
divided by (ii) the initial offering price per share to the public for the
Mindport Securities to be sold in the Mindport IPO (without giving effect to any
underwriting discounts or commissions) (the "Per Share Price"). Notwithstanding
the above, in no event shall Buyer have the right to purchase under the Mindport
Subscription Option more than fifteen percent (15%) of the equity securities of
Mindport on a fully diluted basis, taking into account and including for
purposes of calculating this percentage, all securities to be issued in the
Mindport IPO. The Fair Market Value of the MIH Limited Shares, on a per share
basis, shall be the average closing price per share of the Class A Ordinary
Shares of MIH Limited listed on the Nasdaq National Market for the five (5)
business days immediately prior to the date upon which the Exercise Notice is
given, as reported in the Wall Street Journal or similar generally recognized
reporter of such prices. Buyer shall include its calculation of the Fair Market
Value in its Exercise Notice.
7.3 Issuance and Purchase of Mindport Shares.
If Buyer exercises its Mindport Subscription Option in accordance with
this Section 7, then, on the Mindport Closing Date, subject to Section 7.4,
Seller shall cause Mindport to issue and sell to Buyer, that number of Mindport
Shares determined in accordance with Section 7.2 above, and Buyer shall purchase
such Mindport Shares in exchange for the payment, in cash, of an amount equal to
the aggregate number of Mindport Shares being sold to Buyer multiplied by the
Per Share Price. The purchase of the Mindport Shares by Buyer under the Mindport
Subscription Option shall occur as of the Mindport Closing Date. On the Mindport
Closing Date, Buyer shall represent that it is not acquiring the MIH Limited
Shares with a view to or for sale in connection with any distribution thereof
within the meaning of the Act, and that Buyer is an "accredited investor" as
that term is defined in Rule 501 of the SEC under the Act.
7.4 Lockup Agreement.
The sale of Mindport Shares to Buyer shall be subject to the condition
precedent that Buyer executes reasonable and customary lockup agreements in
conjunction with its exercise of the Mindport Subscription Option.
7.5 Appointment of Director.
If Buyer purchases the Mindport Shares pursuant to the Mindport
Subscription Option, and the Mindport Shares received by Buyer thereunder are in
excess of twelve and one-half percent (12.5%) of the equity securities of
Mindport, determined on a fully diluted basis (taking into account the Mindport
Shares issuable to Buyer in connection with the exercise of the Mindport
Subscription Option), then MIH Limited shall cause the election to the Mindport
board of directors (the "Mindport Board") of an individual designated by Buyer
who is acceptable to MIH Limited in its sole and good faith discretion. Such
director shall be excluded from access to any material or meeting or portion
thereof if the Mindport Board reasonably believes such director's presence would
result in a potential conflict of interest regarding the subject matter to be
discussed, including based on competitive concerns. Upon the date that Buyer
ceases to own at least twelve and one-half percent (12.5%) of the equity
securities of Mindport, determined on a fully diluted basis, whether due to the
sale of securities by Buyer, Mindport or otherwise, Buyer's right to designate a
director to the Mindport Board shall terminate and the Buyer director then
serving on the Mindport Board may be removed by action of a majority of the
remaining members of the Mindport Board or by the stockholders of Mindport.
13
SECTION 8. Remedies for Breaches.
8.1 Survival of Representations and Warranties.
All representations and warranties contained in Section 3 of this
Agreement shall survive the Closing and the consummation of the transactions
contemplated hereby (and any examination or investigation by or on behalf of any
party hereto) until the second anniversary of the date of this Agreement,
subject to the following sentence. No action may be commenced by either Party
with respect to any inaccuracy of or breach of any representation or warranty in
Section 3 of this Agreement, unless written notice, setting forth in reasonable
detail the claimed breach thereof, shall be given pursuant to Section 11.7 to
the other Party on or before the second anniversary of the date of this
Agreement; provided, however, that if such notice is given pursuant to Section
11.7 prior to such second anniversary, then the termination of the survival of
all representations and warranties on such first anniversary shall not effect
any liability arising prior to such termination which is the subject of such
notice.
8.2 Seller Indemnification.
Seller hereby indemnifies, covenants and agrees to defend and hold
harmless Buyer and its officers, directors, employees, agents and
representatives (collectively, "Representatives") from and against any and all
losses, liabilities, obligations, costs, expenses, damages or judgments of any
kind or nature whatsoever (including reasonable attorneys', accountants' and
experts' fees, disbursements of counsel, and other costs and expenses incurred
pursuing indemnification claims under this Section 8 hereof) (collectively,
"Damages") arising out of or resulting from: (a) any breach of any
representation or warranty made by Seller in Section 3.1 of this Agreement, or
(b) the failure of Seller to perform or observe any covenant, agreement or
provision to be performed or observed by Seller pursuant to Section 2 of this
Agreement.
8.3 Buyer Indemnification.
Buyer hereby indemnifies, covenants and agrees to defend and hold harmless
Seller and its Representatives from and against any and all Damages arising out
of or resulting from: (a) any breach of any representation or warranty made by
Buyer in Section 3.2 of this Agreement, or (b) the failure of Buyer to perform
or observe any covenant, agreement or provision to be performed or observed by
Buyer pursuant to Section 2 of this Agreement.
8.4 Indemnification Procedure.
Each party entitled to be indemnified pursuant to this Section 8 (each, an
"Indemnified Party") shall notify the party against whom indemnification is
sought (the "Indemnifying Party") in writing of any action against such
Indemnified Party in respect of which the Indemnifying Party is or may be
obligated to provide indemnification under this Section 8, promptly after the
receipt of notice of the commencement thereof. The omission of any Indemnified
Party so to notify the Indemnifying Party of any such action shall not relieve
the Indemnifying Party from any liability which the Indemnifying Party may have
to such Indemnified Party, except to the extent such failure to provide notice
is materially prejudicial to the ability of the Indemnifying Party to defend
such action. In case any such action shall be brought against any Indemnified
Party and it shall notify the Indemnifying Party of the commencement thereof,
the Indemnifying Party shall be entitled to participate therein and, to the
extent that the Indemnifying Party may wish, to assume the defense thereof, with
counsel reasonably satisfactory to such
14
Indemnified Party, and after notice from the Indemnifying Party to such
Indemnified Party of its election so to assume the defense thereof, the
Indemnifying Party will not be liable to such Indemnified Party under this
Section 8 for any legal or other expense subsequently incurred by such
Indemnified Party in connection with the defense thereof nor for any settlement
thereof entered into without the consent of the Indemnifying Party; provided,
however, that (i) if the Indemnifying Party shall elect not to assume the
defense of such claim or action or (ii) if the Indemnified Party reasonably
determines (x) that there may be a conflict between the positions of the
Indemnifying Party and of the Indemnified Party in defending such claim or
action or (y) that there may be legal defenses available to such Indemnified
Party different from or in addition to those available to the Indemnifying
Party, then separate counsel for the Indemnified Party shall be entitled to
participate in and conduct the defense, in the case of (i) and (ii)(x), or such
different defenses, in the case of (ii)(y), and the Indemnifying Party shall be
liable for any reasonable legal or other expenses incurred by the Indemnified
Party in connection with the defense.
SECTION 9. Certain Taxes.
All transfer, documentary, sales, use, stamp, registration and other
similar Taxes and fees (including any penalties and interest) incurred in
connection with the purchase and sale transaction in Section 2 or Section 7 of
this Agreement (including any New York State Gains Tax, New York City Transfer
Tax and any similar tax imposed in other states, subdivisions or foreign
jurisdictions), shall be paid by Buyer when due, and Buyer will, at its own
expense, file all necessary Tax Returns and other documentation with respect to
all such transfer, documentary, sales, use, stamp, registration and other Taxes
and fees, and, if required by applicable law, Seller will, and will cause its
affiliates to, join in the execution of any such Tax Returns and other
documentation at Buyer's expense.
SECTION 10. Termination.
10.1 Termination of Agreement.
Certain of the Parties may terminate this Agreement as provided below:
(a) the Buyer and the Seller may terminate this Agreement by mutual
written consent at any time prior to the Closing;
(b) the Buyer may terminate this Agreement by giving written notice
to the Seller at any time prior to the Closing in the event the Seller has
breached any material representation, warranty, or covenant contained in
this Agreement in any material respect, the Buyer has notified the Seller
of the breach, and the breach has continued without cure for a period of
30 days after the notice of breach; provided, however, that Buyer may only
terminate this Agreement as a result of or in connection with information
contained in a MAC Notice if Seller delivers a MAC Notice to Buyer not
less than one business day prior to the date (the "Pricing Date") on which
Seller establishes the initial offering price per share to the public for
the Class A Ordinary Shares of MIH Limited in the MIH Limited IPO, and
Buyer delivers to Seller written notice of its intent to terminate this
Agreement on or before the Pricing Date; and
(c) the Seller may terminate this Agreement by giving written notice
to the Buyer at any time prior to the Closing in the event the Buyer has
breached any material representation, warranty, or covenant contained in
this Agreement in any material respect, the Seller has notified the Buyer
of the breach, and the breach has continued without cure for a period of
30 days after the notice of breach.
15
10.2 Effect of Termination.
If any Party terminates this Agreement pursuant to Section 10.1 above, all
rights and obligations of the Parties hereunder shall terminate without any
liability of any Party to any other Party, except for any liability of any Party
then in breach; provided, however that if Buyer terminates this Agreement as a
result of or in connection with information contained in a MAC Notice, Seller
shall have no liability to Buyer for breach of any representation, warranty or
covenant hereunder, and Seller shall pay to Buyer the principal amount of and
interest under the Note in accordance with its terms.
SECTION 11. Miscellaneous.
11.1 Press Releases and Public Announcements.
No Party nor any of their respective affiliates shall issue any press
release or make any public announcement relating to the subject matter of this
Agreement without the prior written approval of the other Party; provided,
however, that any Party may make any public disclosure it believes in good faith
is required by applicable law or any listing or trading agreement concerning its
publicly-traded securities (in which case the disclosing Party will use
reasonable efforts to advise the other Parties prior to making the disclosure).
11.2 No Third-Party Beneficiaries.
This Agreement shall not confer any rights or remedies upon any Person
other than the Parties and their respective successors and permitted assigns.
11.3 Entire Agreement.
This Agreement (including the Note and other documents referred to herein)
constitutes the entire agreement among the Parties and supersedes any prior
understandings, agreements, or representations by or among the Parties, written
or oral, including the Letter Agreement by and among Myriad International
Holdings BV, Thomson multimedia S.A., TCE and OpenTV, dated as of December 18,
1998, as amended by the Conversion Option Term Sheet, dated as of March 16,
1999, to the extent they related in any way to the subject matter hereof.
11.4 Succession and Assignment.
This Agreement shall be binding upon and inure to the benefit of the
Parties named herein and their respective successors and permitted assigns. No
Party may assign either this Agreement or any of its rights, interests, or
obligations hereunder without the prior written approval of the other Party;
provided, however, that the Buyer may assign all of its rights and interests
hereunder, in whole and not in part, to Thomson multimedia S.A., a societe
anonyme incorporated under the laws of France.
11.5 Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original but all of which together will constitute one and
the same instrument.
16
11.6 Headings.
The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
11.7 Notices.
All notices, requests, demands, claims, and other communications hereunder
will be in writing. Any notice, request, demand, claim, or other communication
hereunder shall be deemed duly given if (and then two business days after) it is
sent by registered or certified mail, return receipt requested, postage prepaid,
and addressed to the intended recipient as set forth below:
If to the Seller: Copy to:
MIH Limited Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇-▇▇ ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇
2132 HC Hoofddorp ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telecopy No: ▇▇-▇▇-▇▇▇-▇▇▇▇ Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Buyer: Copy to:
Thomson Consumer Electronics, Inc. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq. Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Parties
notice in the manner herein set forth.
11.8 Governing Law.
(a) This Agreement shall be construed in accordance with and
governed by the internal laws of the State of California (as permitted by
Section 1646.5 of the California Civil Code, or any similar successor
provision) without giving effect to any choice of law rule that would
cause the application of the laws of any jurisdiction other the internal
laws of the State of California to the rights and duties of Buyer and
Seller.
(b) Any legal action or proceeding with respect to this Agreement
may be brought in the courts of the State of California or of the United
States for the Northern District of California, and each Party hereby
consents, for itself and in respect of its property, to the non-exclusive
jurisdiction of those courts. Each Party irrevocably waives any objection,
including any
17
objection to the laying of venue or based on the grounds of forum non
conveniens, which it may now or hereafter have to the bringing of any
action or proceeding in such jurisdiction in respect of this Agreement.
Each Party further consents to process being served in any such action or
proceeding either by mailing a copy thereof to such party in accordance
with Section 11.7, or by serving a copy thereof upon such party to the
full extent permitted by law. Each Party agrees that such service shall be
deemed in every respect effective service of process upon the other Party
in any such action or proceeding and shall be taken and held to be valid
personal service upon and personal delivery to the other Party to the full
extent permitted by law.
11.9 Waiver of Jury Trial.
EACH PARTY HERETO HEREBY WAIVES ITS RIGHTS TO A TRIAL BY JURY OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION OR PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY A PARTY AGAINST THE OTHER PARTY, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH PARTY HERETO AGREES
THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, EACH PARTY HERETO FURTHER AGREES THAT ITS
RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY
ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO
CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION
HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
11.10 Amendments and Waivers.
No amendment of any provision of this Agreement shall be valid unless the
same shall be in writing and signed by the Buyer and the Seller. No waiver by
any Party of any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
11.11 Severability.
Any term or provision of this Agreement that is invalid or unenforceable
in any situation in any jurisdiction shall not affect the validity or
enforceability of the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other situation or in
any other jurisdiction.
11.12 Expenses.
Each of the Parties will bear its own costs and expenses (including legal
fees and expenses) incurred in connection with this Agreement and the
transactions contemplated hereby, unless expressly provided otherwise herein.
11.13 Construction.
Any reference to any federal, state, local, or foreign statute or law
shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word "including" shall
mean including without limitation.
18
11.14 Incorporation of Exhibits, Annexes, and Schedules.
The Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof.
11.15 Binding Agreement.
The Parties hereby acknowledge and agree that, upon execution of this
Agreement by each Party, this Agreement shall constitute a legally binding
agreement among the Parties, and the Parties acknowledge and agree that good and
valuable consideration has been given for such purpose.
*****
19
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the
date first above written.
THOMSON CONSUMER
ELECTRONICS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: COO & Exec. V.P.
------------------------------------
MIH LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Director
------------------------------------
20
Disclosure Schedule to Stock Purchase Option Agreement
Exceptions to the Seller's Representations and Warranties
Concerning the Transaction
Seller is currently in the process of finalizing and, to the extent necessary,
filing with the Company's Registry in the British Virgin Islands, resolutions
and authorizations of the directors of Seller regarding certain changes to the
share capital of Seller, which would include a resolution and authorization
necessary for the closing of the sale of the MIH Limited Shares to Buyer under
Section 2 of this Agreement.
i
Page
Exhibit A
Lockup Agreement
ii
March , 1999
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
North Tower
World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ INTERNATIONAL
MEESPIERSON N.V.
c/o Merrill ▇▇▇▇▇ International
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Re: Agreement not to sell or otherwise
dispose of securities of MIH Limited
------------------------------------
Ladies and Gentlemen:
The undersigned understands that MIH Limited (the "Company") proposes to
file a registration statement on Form F-1 (the "Registration Statement") with
the United States Securities and Exchange Commission in connection with the
initial public offering (the "Offering") of ordinary shares ("Shars") of the
Company. The undersigned further understands that the Company proposes to enter
into one or more purchase agreements (collectively, the "Purchase Agreement")
with you as representative of the underwriters of the Offering (the
"Underwriters").
In recognition of the benefit that the Offering will confer upon the
undersigned as a securityholder of the Company, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce the Company and the Underwriters to enter
into the Purchase Agreement and to proceed with the Offering, the undersigned
hereby agrees, that from the date hereof until the first anniversary of the date
of the Purchase Agreement, the undersigned will not, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, directly or indirectly, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or other-
-2-
wise dispose of or transfer (collectively, a "Covered Sale") any Shares (other
than any Shares registered in the Offering) or any securities convertible into
or exchangeable or exercisable for any Shares, whether now owned or hereafter
acquired by the undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition (collectively, the "Locked Shares")
or request the filing of any registration statement under the Securities Act of
1933, as amended (the "Securities Act"), with respect to any of the foregoing
(it being understood that such a request shall not be deemed to have been made
pursuant to any registration rights agreement until a request is made thereunder
and the mere entering into of any registration rights agreement shall not be
deemed such a request) or (ii) enter into any swap or any other agreement or
any transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of Shares, whether any such transaction
described in clause (i) or (ii) above is to be settled by delivery of the Shares
or other securities, in cash or otherwise.
Notwithstanding the foregoing, (a) the undersigned may at any time make a
Covered Sale of any Locked Shares to its parent company Thomson multimedia S.A.,
provided that Thomson multimedia S.A. shall have agreed in writing to be bound
by the terms of this agreement as if a party hereto, and (b) on or after the
date which is 181 days after the date of the Purchase Agreement, the undersigned
may make a Covered Sale of any Locked Shares, pursuant to a private sale exempt
from registration under the Securities Act and without engaging in any marketing
activities, other than to any broker dealer, bank, investment fund, investment
company, insurance company, trust fund, employee benefit plan or similar
financial institution; provided, however, that (x) the aggregate number of
transferees (including subsequent transferees) who hold Locked Shares prior to
the first anniversary of the date of the Purchase Agreement shall not exceed
five and (y) each such transferee (including any subsequent transferee) must
agree in writing to be bound by the terms of this Agreement as if a party
hereto.
Sincerely,
Name of Securityholder:
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(Print)
Signature:
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Name:
Title:
(if not natural person)
