Exhibit 10.2
@ENTERTAINMENT, INC.
COMMON STOCK
(PAR VALUE $.01 EACH)
UNDERWRITING AGREEMENT
(U.S. VERSION)
July [ ], 1997
Goldman, Sachs & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
@Entertainment, Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
........ shares (the "Firm Shares") and, at the election of the Underwriters,
up to ......... additional shares (the "Optional Shares") of Common Stock,
par value $.01 each ("Stock"), of the Company (the Firm Shares and the Optional
Shares that the Underwriters elect to purchase pursuant to Section 2 hereof
being collectively called the "Shares").
It is understood and agreed to by all parties that the Company is
concurrently entering into an agreement (the "International Underwriting
Agreement") providing for the sale by the Company of up to a total of ........
shares of Stock (the "International Shares"), including the overallotment option
thereunder, through arrangements with certain underwriters outside the United
States (the "International Underwriters"), for whom Goldman Sachs International
and Merrill Lynch International are acting as lead managers. Anything herein or
therein to the contrary notwithstanding, the respective closings under this
Agreement and the International Underwriting Agreement are hereby expressly made
conditional on one another. The Underwriters hereunder and the International
Underwriters are simultaneously entering into an Agreement between U.S. and
International Underwriting Syndicates (the "Agreement between Syndicates") which
provides, among other things, for the transfer of shares of Stock between the
two syndicates. Two forms of prospectus are to be used in connection with the
offering and sale of shares of Stock contemplated by the foregoing, one relating
to the Shares hereunder and the other relating to the International Shares. The
latter form of prospectus will be identical to the former except for certain
substitute pages and amendments thereto as mentioned below. Except as used in
Sections 2, 3, 4, 9 and 11 herein, and except as the context may otherwise
require, references hereinafter to the Shares shall include all the shares of
Stock which may be sold pursuant to either this Agreement or the International
Underwriting Agreement, and references
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herein to any prospectus whether in preliminary or final form, and whether as
amended or supplemented, shall include both the U.S. and the international
versions thereof.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-....) (the
"Initial Registration Statement") in respect of the Shares has been filed
with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any pre-effective or post-effective
amendments thereto, each in the form heretofore delivered to you, and,
excluding exhibits thereto, to you for each of the other Underwriters,
have been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial Registration
Statement has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act, is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement and
the Rule 462(b) Registration Statement, if any, including all exhibits
thereto and including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A
under the Act to be part of the Initial Registration Statement at the time
it was declared effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, each as amended
at the time such part of the registration statement became effective, are
hereinafter collectively called the "Registration Statement"; such final
prospectus, in the form first filed pursuant to Rule 424(b) under the Act,
is hereinafter called the "Prospectus");
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this
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representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Goldman,
Sachs & Co. expressly for use therein;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change
in the capital stock or consolidated long-term or short-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect"), otherwise
than as set forth or contemplated in the Prospectus;
(e) The Company and its subsidiaries have good and marketable title
to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not result in a Material Adverse Effect; and any real property
and buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries;
(f) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction;
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description of the Stock contained in
the Prospectus;
(h) This Agreement and the International Underwriting Agreement has
been duly authorized, executed and delivered by the Company;
(i) Each subsidiary of the Company that (i) is a "significant
subsidiary" (as that term is defined in Regulation S-X under the 1933 Act)
or (ii) that holds any valid Permits (as such term is defined in the
Prospectus) is listed on Schedule II hereto (each subsidiary listed on
Schedule II hereto is hereinafter referred to as a "Designated Subsidiary"
and, collectively, the "Designated Subsidiaries"), and has been duly
organized and is validly existing as a corporation under the laws of the
jurisdiction of its incorporation, has corporate power and corporate
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is not required to be
qualified as a foreign corporation to transact
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business or to own or lease property in any jurisdiction where it owns or
leases property or transacts business; all of the issued and outstanding
capital stock of each Designated Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable (except, in the case of
any Polish limited liability company, any statutory liability for taxes)
and, except as otherwise disclosed in the Prospectus, is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity, except for
(i) the pledge of o shares of Polska Telewizja Kablowa - Warszawa S.A. and
of o shares of Polska Telewizja Kablowa - Krakow S.A. held by Poland
Cablevision (Netherlands) B.V. ("PCBV") and of o shares of Polska
Telewizja Kablowa - Lublin S.A. held by Poltelkab Sp z o.o. as security
for the loan of $o granted on August 28, 1996 by the American Bank in
Poland to Poland Communications, Inc. ("PCI") and (ii) the pledge of
shares of Polska Telewizja Kablowa S.A. held by PCBV as security for the
loan of $o granted on o by [OPIC] to [PCI] (collectively, the "Share
Pledges"); none of the outstanding shares of capital stock of the
Designated Subsidiaries was issued in violation of any preemptive or
similar rights arising by operation of law, or under the statute or
by-laws (or other similar organizational documents) of any Designated
Subsidiary or under any agreement to which the Company or any Designated
Subsidiary is a party. The subsidiaries of the Company other than the
Designated Subsidiaries, considered in the aggregate as a single
subsidiary, do not constitute a "significant subsidiary" as defined in
Rule 1-02 of Regulation S-X;
(j) There are no restrictions (legal, contractual or otherwise) on
the ability of the Designated Subsidiaries to declare and pay dividends or
make any payment or transfer of property or assets to their shareholders
other than those referred to in the Prospectus and except for restrictions
relating to the Share Pledges and the pledge of certain assets of [GOSAT]
as security for the loan of $- granted on May 18, 1993 by Polski Bank
Rozwoju to [PCI] (the "Asset Pledge" and, together with the Share Pledges,
the "Pledges");
(k) The Shares have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein and in the
International Underwriting Agreement, will be duly and validly issued and
fully paid and non-assessable and will conform to the description of the
Stock contained in the Prospectus;
(l) The issue and sale of the Shares by the Company hereunder and
under the International Underwriting Agreement and the compliance by the
Company with all of the provisions of this Agreement and the International
Underwriting Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of
the provisions of the Certificate of Incorporation or By-laws (or other
similar organizational documents) of the Company or any of its
subsidiaries or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Shares or the consummation by the Company of the transactions
contemplated by this Agreement and the International Underwriting
Agreement, except the registration under the Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act") of the Shares, the
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quotation of the Shares on the National Association of Securities Dealers
Automated Quotations National Market System ("NASDAQ") and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state or foreign securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the Underwriters and
the International Underwriters;
(m) Neither the Company nor any of its subsidiaries is in violation
of its Certificate of Incorporation or By-laws (or other similar
organizational documents) or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound, except as otherwise disclosed in the
Prospectus and except for such defaults that would not result in a
Material Adverse Effect;
(n) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock, under the captions "U.S. Federal Income
Tax Considerations", "Regulation", "Certain Relationships and Related
Transactions", "Shares Eligible for Future Sale" and "Underwriting",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair;
(o) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined adversely
to the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others. The aggregate of all
pending legal or governmental proceedings to which the Company or any
subsidiary thereof is a party or of which any of their respective property
or assets is the subject which are not described in the Prospectus,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a material adverse effect on the
current or future consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries;
(p) No labor dispute with the employees of the Company or any of its
subsidiaries exists or is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or
any of its subsidiaries' principal suppliers, customers or contractors,
which, in either case, may reasonably be expected to result in a material
adverse effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries;
(q) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(r) The Company has not been in any prior taxable year, and, based on
its understanding and estimates of its income and receipts, will not be
for the taxable year that includes the offering a "personal holding
company" within the meaning of Section 542 of the Internal Revenue Code of
1986, as amended.
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(s) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(t) The financial statements, together with the related schedules and
notes, of the Company and its consolidated subsidiaries included in the
Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with United States generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The selected consolidated
financial data and the summary consolidated financial data included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the unaudited interim
consolidated financial statements and the audited consolidated financial
statements included in the Prospectus;
(u) Except as otherwise disclosed in the Prospectus, the Company and
each of its subsidiaries own or possess, or can acquire on reasonable
terms, adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them. Neither the Company nor any of its subsidiaries has
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Company or any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding)
or invalidity or inadequacy, singly or in the aggregate, would result in a
material adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries;
(v) Except as otherwise disclosed in the Prospectus, the Company and
each of its subsidiaries possess such permits, licenses, approvals,
concessions, consents and other authorizations (including, without
limitation, all permits required for the operation of the business of the
Company and each of its subsidiaries by the Republic of Poland and the
United Kingdom) issued by the appropriate domestic or foreign regulatory
agencies or bodies, other governmental authorities or self regulatory
organizations (collectively, the "Licenses") necessary to conduct the
business now operated by them or any business currently proposed to be
conducted by them; the Company and each of its subsidiaries are in
compliance with the terms and conditions of all such Licenses; all of the
Licenses are valid and in full force and effect; and neither the Company
nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Licenses. There
exists no reason or cause that could justify the variation, suspension,
cancellation or termination of any such Licenses held by the Company or
any of its subsidiaries with respect to the construction or operation of
their respective businesses. In so far as the Company currently does not
possess the Licenses necessary to conduct its business in certain areas
where it currently operates cable systems, the Company is either (i)
applying for the necessary Licenses or (ii) making the necessary
investments which will enable it to obtain the necessary Licenses, and in
each case, the Company has no reason to believe that
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such Licenses will not be granted, and further, the Company has no reason
to believe that the operations for which it currently does not possess the
necessary Licenses will suffer a Material Adverse Effect by reason of them
not possessing such necessary Licenses;
(w) The Company and its subsidiaries have filed all domestic and
foreign tax returns that are required to be filed or have duly requested
extensions thereof and have paid all taxes required to be paid by any of
them and any related assessments, fines or penalties, except for any such
tax, assessment, fine or penalty that is being contested in good faith and
by appropriate proceedings; and adequate charges, accruals and reserves
have been provided for in the financial statements referred to in Section
1(t) above in respect of all domestic and foreign taxes for all periods as
to which the tax liability of the Company or any of its subsidiaries has
not been finally determined or remains open to examination by applicable
taxing authorities.
As of the date hereof, no material income, stamp or other taxes or
levies, imposts, deductions, charges, compulsory loans or withholdings
whatsoever are or will be, under applicable law in the Republic of Poland,
imposed, assessed, levied or collected by the Republic of Poland or any
political subdivision or taxing authority thereof or therein on or in
respect of principal, interest, premiums, penalties or other amounts
payable under any indebtedness of any of the Company's subsidiaries;
(x) (i) Neither the Company nor any of its subsidiaries is in
violation of any statute, law, rule, regulation, ordinance, code, policy
or rule of common law or any judicial or administrative interpretation
thereof including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (ii) the Company
and its subsidiaries have all permits, authorizations and approvals, if
any, required under any applicable Environmental Laws and are each in
compliance with their requirements, (iii) there are no pending or
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (iv) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or
Environmental Laws;
(y) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
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The Company and its subsidiaries have not made, and, to the knowledge of
the Company, no employee or agent of the Company or any subsidiary has
made, any payment of the Company's funds or any subsidiary's funds or
received or retained any funds (i) in violation of the Foreign Corrupt
Practices Act, as amended, or (ii) in violation of any other applicable
law, regulation or rule; and
(z) The Company and each of its subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their
respective properties and as is customary for companies engaged in similar
businesses or similar industries.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
at a purchase price per share of $........................, the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto and
(b) in the event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares as provided below, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the
purchase price per share set forth in clause (a) of this Section 2, that
portion of the number of Optional Shares as to which such election shall have
been exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction, the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to ............ Optional Shares, at the purchase price per
share set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the
Company, given within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you and the Company otherwise agree in
writing, earlier than two or later than ten business days after the date of
such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to
Goldman, Sachs & Co., for the account of such Underwriter, against payment by or
on behalf of such Underwriter of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company in same day
funds. The Company will cause the certificates representing the Shares to be
made available for checking and packaging at least twenty-four hours prior to
the Time of Delivery (as defined below) with respect thereto at the office of
Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004 (the "Designated
Office"). The time and date of such delivery and payment shall be, with respect
to the Firm Shares, 9:30 a.m., New York City time, on
............., 1997 or such other time and date as Goldman, Sachs & Co. and the
Company may agree upon in writing, and, with respect to the Optional
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Shares, 9:30 a.m., New York time, on the date specified by Goldman, Sachs & Co.
in the written notice given by Goldman, Sachs & Co. of the Underwriters'
election to purchase such Optional Shares, or such other time and date as
Goldman, Sachs & Co. and the Company may agree upon in writing. Such time and
date for delivery of the Firm Shares is herein called the "First Time of
Delivery", such time and date for delivery of the Optional Shares, if not the
First Time of Delivery, is herein called the "Second Time of Delivery", and each
such time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(o) hereof, will be delivered at the offices of Shearman &
Sterling, 199 Bishopsgate, London, EC2M 3TY, England (the "Closing Location"),
and the Shares will be delivered at the Designated Office, all at such Time of
Delivery. A meeting will be held at the Closing Location at .......p.m., New
York City time, on the New York Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Agreement, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish you with copies thereof;
to advise you, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus, of the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus or prospectus or suspending any such qualification, promptly to
use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with copies of the Prospectus in New York City in
such quantities as
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you may reasonably request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after the time
of issue of the Prospectus in connection with the offering or sale of the
Shares and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus in
order to comply with the Act, to notify you and upon your request to
prepare and furnish without charge to each Underwriter and to any dealer
in securities as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such compliance, and in
case any Underwriter is required to deliver a prospectus in connection
with sales of any of the Shares at any time nine months or more after the
time of issue of the Prospectus, upon your request but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many
copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations thereunder (including, at the option of the
Company, Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the date 180 days after the date of the Prospectus, not
to offer, sell, contract to sell or otherwise dispose of, except as
provided hereunder and under the International Underwriting Agreement, any
securities of the Company that are substantially similar to the Shares,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any
such substantially similar securities (other than pursuant to employee
stock option plans existing on, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the date of this
Agreement), without your prior written consent; and to cause (i) each of
Messrs. Robert E. Fowler, III, John S. Frelas, George Makowski, Przemyslaw
Szmyt and David Warner (each a "Manager") to furnish to the Company and to
the Underwriters, prior to the First Time of Delivery, a letter or letters
(the "Lock-up Letters"), in form and substance satisfactory to counsel to
the Underwriters, pursuant to which such Manager shall agree not to offer,
sell, contract to sell or otherwise dispose of, any securities of the
Company that are substantially similar to the Shares, including but not
limited to any securities that are convertible into or exchangeable for,
or that represent the right to receive, Stock or any such substantially
similar securities, without your prior written consent, during the period
beginning from the date hereof and continuing to and including the date
728 days (two years) after the date of the Prospectus, and (ii) each
shareholder of the Company (other than the Managers) and each holder of
options or warrants in securities of the Company to furnish to the Company
and to the Underwriters, prior to the First Time of Delivery, a Lock-up
Letter, in form and substance satisfactory to counsel to the Underwriters,
pursuant to which such shareholder shall agree not to offer, sell,
contract to sell or otherwise dispose of, any securities of the Company
that are substantially similar to the Shares, including but not limited to
any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than upon the conversion or exchange of convertible or
exchangeable securities outstanding as of the date of this Agreement),
without your prior written
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consent, during the period beginning from the date hereof and continuing
to and including the date 180 days after the date of the Prospectus;
(f) To furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the
first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the effective date of the Registration Statement),
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to
deliver to you (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed; and (ii) such additional information concerning the
business and financial condition of the Company as you may from time to
time reasonably request (such financial statements to be on a consolidated
basis to the extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its stockholders generally or to the
Commission);
(h) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement and the International Underwriting
Agreement in the manner specified in the Prospectus under the caption "Use
of Proceeds";
(i) To use its best efforts to list for quotation the Shares on
NASDAQ;
(j) [For all tax years commencing after the latest Time of Delivery],
to take such reasonable steps as may be necessary in any year to avoid it
becoming a "personal holding company" within the meaning of Section 542 of
the Internal Revenue Code, as amended;
(k) To file with the Commission such reports on Form SR as may be
required by Rule 463 under the Act; and
(l) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the
date of this Agreement, and the Company shall at the time of filing either
pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the International Underwriting Agreement, the
Agreement between Syndicates, the Selling Agreement, the Blue Sky Memorandum,
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closing documents (including compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Shares; (iii)
all expenses in connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky survey; (iv) all fees and
expenses in connection with listing the Shares on NASDAQ; (v) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Shares; (vi) the cost
of preparing stock certificates; (vii) the cost and charges of any transfer
agent or registrar; (viii) all costs and fees incurred by the Company and the
Underwriters in connection with any roadshows; and (ix) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with
Section 5(a) hereof; if the Company has elected to rely upon Rule 462(b),
the Rule 462(b) Registration Statement shall have been filed and become
effective by 10:00 p.m., Washington, D.C. time, on the date of this
Agreement; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission;
and all requests for additional information on the part of the Commission
shall have been complied with to your reasonable satisfaction;
(b) Shearman & Sterling, counsel for the Underwriters, shall have
furnished to you such opinion or opinions (a draft of each such opinion is
attached as Annex II(a) hereto), dated such Time of Delivery, with respect
to the matters covered in paragraphs (i), (ii), (viii), (xiii), and
(xviii) of subsection (d) below as well as such other related matters as
you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Salans Hertzfeld & Heilbronn, special Polish counsel for the
Underwriters, shall have furnished to you their written opinion (a draft
of such opinion is attached as Annex II(b) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) Each Polish Designated Subsidiary has been duly
incorporated and is validly existing as a corporation under the laws
of the Republic of Poland, has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and is not required to be qualified as a
foreign corporation to transact business or to own or lease property
in any jurisdiction where it owns or leases property or transacts
business; all of the issued and outstanding capital stock of each
Polish Designated Subsidiary has been duly authorized and validly
issued, is
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fully paid and non-assessable (except, in the case of any Polish
limited liability company, any statutory liability for taxes) and,
except as otherwise disclosed in the Prospectus, is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity;
(ii) The information in the Prospectus under "Business --
Properties", "Business -- Legal Proceedings", "Regulation", and
"Certain Relationships and Related Transactions", to the extent it
constitutes matters of law, summarizes legal matters or legal
proceedings, has been reviewed by them and is correct in all
material respects; and
(iii) The execution, delivery and performance of this Agreement
and the International Underwriting Agreement, the issuance and sale
of the Shares being delivered at such time of delivery by the
Company and the consummation of the transactions herein and therein
contemplated will not result in any violation of the provisions of
the statutes or by-laws (or other similar organizational documents)
of any Polish Designated Subsidiary, or any applicable law, statute,
rule, regulation, judgment, order, writ or decree, of any
government, government instrumentality or court having jurisdiction
over the Company or any of its Polish Designated Subsidiaries or any
of their respective properties, assets or operations.
In rendering such opinion, such counsel may rely as to matters
involving the application of United States federal and New York
State law, upon the opinion of Shearman & Sterling, counsel to the
Underwriters (which opinion shall be delivered to the Underwriters
at each Time of Delivery pursuant to this Agreement). Such counsel
may also rely, to the extent necessary, as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public
officials.
(d) Baker & McKenzie, New York, special counsel for the Company,
shall have furnished to you their written opinion (a draft of such opinion
is attached as Annex II(c) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company (including the Shares being delivered at such Time of
Delivery) have been duly and validly authorized and issued and are
fully paid and nonassessable; and the Shares conform to the
description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except where the failure to so qualify or to be in
good standing would not result in a Material Adverse
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Effect;
(iv) Each U.S. Designated Subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation; and
all of the issued shares of capital stock of each such subsidiary
have been duly and validly authorized and issued, are fully paid and
non-assessable, and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(v) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vi) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by the
Company;
(vii) The issue and sale of the Shares being delivered at such
Time of Delivery by the Company and the compliance by the Company
with all of the provisions of this Agreement and the International
Underwriting Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or
By-laws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties;
(viii) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by this
Agreement and the International Underwriting Agreement, except the
registration under the Act and the Exchange Act of the Shares, the
quotation of the Shares on NASDAQ, and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state or foreign securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the Underwriters
and the International Underwriters;
(ix) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws (or other
similar organizational documents) or of any applicable law, statute,
rule, regulation, judgment,
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order, writ or decree of any government, government instrumentality
or court having jurisdiction over the Company or any of its
subsidiaries or any of their assets or properties, except as
described in the Prospectus, or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, license, indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or
instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries or any of their respective properties may be bound;
(x) There are no restrictions (legal, contractual or otherwise)
on the ability of the U.S. Designated Subsidiaries to declare and
pay dividends or make any payment or transfer of property or assets
to their shareholder other than those referred to in the Prospectus;
(xi) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, under the captions
"U.S. Federal Income Tax Considerations", "Certain Relationships and
Related Transactions", "Shares Eligible for Future Sale" and
"Underwriting", insofar as they purport to describe the provisions
of the laws and documents referred to therein, are accurate,
complete and fair;
(xii) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined
in the Investment Company Act;
(xiii) The Company has not been a "personal holding company"
within the meaning of Section 542 of the Internal Revenue Code, as
amended, for any taxable year of its existence, and has not been
required to pay any personal holding tax under Section 541 of the
Internal Revenue Code, as amended, for any taxable year;
(xiv) All descriptions in the Prospectus of contracts, licenses
and other documents to which the Company or any of its subsidiaries
is a party are accurate in all material respects; to the best of
their knowledge, there are no franchises, contracts, licenses,
indentures, mortgages, loan agreements, notes, leases or other
instruments that are required to be described in the Prospectus that
are not described or referred to in the Prospectus other than those
described or referred to therein, and the descriptions thereof and
references thereto are correct in all material respects; and
(xv) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior
to such Time of Delivery (other than the financial statements and
related schedules and other historical and pro forma financial data
included or incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the rules and
regulations thereunder, although they do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in
subsection (xiii) of this Section 7(d); they have no reason to
believe that, as of its effective date, the Registration Statement
or any further amendment thereto made by the Company prior to such
Time of
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Delivery (other than the financial statements and related schedules
and other historical and pro forma financial data included or
incorporated by reference therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as
of its date, the Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery (other
than the financial statements and related schedules and other
historical and pro forma financial data included or incorporated by
reference therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading or that, as of such Time of Delivery, either the
Registration Statement or the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules
and other historical and pro forma financial data included or
incorporated by reference therein, as to which such counsel need
express no opinion) contains an untrue statement of a material fact
or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and they do not know of any amendment to the
Registration Statement required to be filed or of any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or
described as required.
In rendering such opinion, such counsel may rely (A) as to
matters involving documents in the Polish language and the
application of Polish law, upon the opinion of Baker & McKenzie,
Warsaw, special Polish counsel to the Company (which opinion shall
be delivered to the Underwriters at each Time of Delivery pursuant
to this Agreement), (B) as to matters involving the application of
Netherlands law, upon the opinion of Baker & McKenzie, Amsterdam,
special Netherlands counsel to PCBV (which opinion shall be
delivered to the Underwriters at each Time of Delivery pursuant to
this Agreement), and (C) as to matters involving the application of
United Kingdom law, upon the opinion of Ashurst Morris & Crisp,
special United Kingdom counsel to the Company (which opinion shall
be delivered to the Underwriters at each Time of Delivery pursuant
to this Agreement). Such counsel may also rely, to the extent
necessary, as to matters of fact (but not as to legal conclusions),
to the extent they deem proper, on certificates of responsible
officers of the Company and public officials.
(e) Baker & McKenzie, Warsaw, special Polish counsel for the Company,
shall have furnished to you their written opinion (a draft of such opinion
is attached as Annex II(d) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) Each Polish Designated Subsidiary has been duly
incorporated and is validly existing as a corporation under the laws
of the Republic of Poland, has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and is not required to be qualified as a
foreign corporation to transact business or to own or lease property
in any jurisdiction where it owns or leases property or transacts
business; all of the issued and outstanding capital stock of each
Polish Designated Subsidiary has been duly authorized and validly
issued, is
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fully paid and non-assessable (except, in the case of any Polish
limited liability company, any statutory liability for taxes) and,
to the best of their knowledge and information, except as otherwise
disclosed in the Prospectus, is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, except for the
Share Pledges;
(ii) Except as described in the Prospectus, there is not
pending or, to the best of their knowledge, threatened any action,
suit, proceeding, inquiry or investigation, to which the Company or
any subsidiary is a party, or to which the property of the Company
or any subsidiary is subject, before or brought by any court or
governmental agency or body, which might be expected to result in a
Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or
the consummation of (1) this Agreement or the performance by the
Company of its obligations hereunder or (2) the transactions
contemplated by the Prospectus;
(iii) The Company and its Polish Designated Subsidiaries have
good and marketable title to all real property owned by them, in
each case free and clear of all liens, encumbrances and defects
except such as are described in the Prospectus or such as do not
result in a Material Adverse Effect; and any real property and
buildings held under lease by the Company and its Polish Designated
Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as do not result in a
Material Adverse Effect;
(iv) The information in the Prospectus under "Business --
Properties", "Business -- Legal Proceedings", "Regulation", and
"Certain Relationships and Related Transactions", to the extent that
it constitutes matters of law, summaries of legal matters, or legal
proceedings, or legal conclusions, has been reviewed by them
and is correct in all material respects;
(v) All descriptions in the Prospectus of contracts, licenses
and other documents to which the Company or any of its subsidiaries
is a party are accurate in all material respects; to the best of
their knowledge, there are no franchises, contracts, licenses,
indentures, mortgages, loan agreements, notes, leases or other
instruments that are required to be described in the Prospectus that
are not described or referred to in the Prospectus other than those
described or referred to therein, and the descriptions thereof and
references thereto are correct in all material respects;
(vi) None of the Polish Designated Subsidiaries is in violation
of its statutes or by-laws (or other similar organizational
documents) nor is the Company or any of its subsidiaries in
violation of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court having jurisdiction over the Company or any
of its subsidiaries or any of their assets or properties, except as
described in the Prospectus, and no default by the Company or any of
its subsidiaries exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, license, indenture, mortgage, loan agreement, note, lease
or other agreement or instrument that is described or referred to in
the Prospectus except as described in the Prospectus and except for
such defaults that would not result in a Material Adverse Effect;
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(vii) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby and in
the Prospectus (including the use of proceeds from the sale of the
Shares and described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Company with its obligations under
this Agreement, will not, whether with or without the giving of
notice or lapse of time or both, conflict with or constitute a
breach of, or default under or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of
the Company or any subsidiary thereof pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to them, to which
the Company or any subsidiary thereof is a party or by which it or
any of them may be bound, or to which any of the property or assets
of the Company or any subsidiary thereof is subject, nor will such
action result in any violation of the provisions of the statutes or
by-laws (or other similar organizational documents) of any Polish
Designated Subsidiary, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, of any government,
government instrumentality or court having jurisdiction over the
Company or any of its subsidiaries or any of their respective
properties, assets or operations;
(viii) Except as otherwise disclosed in the Prospectus, each of
the Polish Designated Subsidiaries owns or possesses or has obtained
all material governmental licenses, certificates, permits,
concessions, consents, orders, approvals and other authorizations
necessary to hold all concessions, leases and permits or own its
properties, including, without limitation, all licenses and permits
relating to intellectual property, and to carry on its business as
presently conducted and as contemplated in the Prospectus, and none
of the Polish Designated Subsidiaries has received any notice
relating to the revocation or modification of any such concession,
license, certificate, permit, consent, order, approval or other
authorizations;
(ix) There are no restrictions (legal, contractual or
otherwise) on the ability of the Polish Designated Subsidiaries to
declare and pay dividends or make any payment or transfer of
property or assets to their shareholder other than those referred to
in the Prospectus and except for the Pledges; and
(x) No authorization, approval, consent or order of any court
or governmental authority or agency (other than such as may be
required under the applicable securities laws of the various
jurisdictions in which the Shares will be offered or sold, as to
which they need express no opinion) is required in connection with
the due authorization, execution and delivery of this Agreement or
for the offering issuance, sale or delivery of the Shares to the
Underwriters.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of United States federal and New
York State law, upon the opinion of Baker & McKenzie, New York,
special counsel to the Company (which opinion shall be delivered to
the Underwriters at each Time of Delivery pursuant to this
Agreement), (B) as to matters involving the application of
Netherlands law, upon the opinion of Baker & McKenzie, Amsterdam,
special Netherlands counsel to PCBV (which opinion shall be
delivered to the Underwriters at each Time of Delivery pursuant to
this Agreement), and (C) as to matters involving the application of
United Kingdom law, upon the opinion of Ashurst Morris & Crisp,
special United
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Kingdom counsel to the Company (which opinion shall be delivered to
the Underwriters at each Time of Delivery pursuant to this
Agreement). Such counsel may also rely, to the extent necessary, as
to matters of fact (but not as to legal conclusions), to the extent
they deem proper, on certificates of responsible officers of the
Company and public officials.
(f) Baker & McKenzie, Amsterdam, special Netherlands counsel to the
Company, shall have furnished to you their written opinion (a draft of
such opinion is attached as Annex II(e) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) PCBV has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the Netherlands,
has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and is duly registered with the local Dutch trade
register. Under Dutch law, PCBV is not required to be qualified as a
foreign corporation to transact business in the Netherlands. All of
the issued and outstanding capital stock of PCBV, consisting of
200,000 shares, has been duly authorized and validly issued, is
fully paid and non-assessable. The Company owns 184,600 out of such
200,000 shares (92.3% of the total ) free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity;
(ii) There are no restrictions (legal, contractual or
otherwise) on the ability of PCBV to declare and pay dividends or
make any payment or transfer of property or assets to its
shareholders other than those described in the Prospectus and such
descriptions, if any, fairly summarize such restrictions;
(iii) Except as described in the Prospectus, there is not
pending or, to the best of their knowledge, threatened any action,
suit, proceeding, inquiry or investigation, to which PCBV is a
party, or to which the property of PCBV is subject, before or
brought by any Dutch court or governmental agency or body, which
might be expected to result in a material adverse effect on the
current or future consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
or which might reasonably be expected to materially and adversely
affect the properties or assets thereof in a manner that is material
and adverse to the Company and its subsidiaries considered as one
enterprise or the consummation of (A) this Agreement or the
performance by the Company of its obligations hereunder (if any) or
(B) the transactions contemplated by the Prospectus;
(iv) All descriptions in the Prospectus of contracts and other
documents to which PCBV is a party are accurate in all material
respects; to the best of their knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments that are required to be described in the
Prospectus that are not described or referred to in the Prospectus
other than those described or referred to therein, and the
descriptions thereof and references thereto are correct in all
material respects;
(v) PCBV is not in violation of its certificate of
incorporation or by-laws (or other similar organizational documents)
nor is PCBV in violation of any applicable Dutch law, statute, rule,
regulation, judgment, order, writ or
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decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over PCBV or any of its
assets or properties, except for as described in the Prospectus and
no default by PCBV exists in the due performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument that is described or referred to in the
Prospectus, except as described in the Prospectus;
(vi) Except as otherwise disclosed in the Prospectus, PCBV owns
or possesses or has obtained all material governmental licenses,
certificates, permits, concessions, consents, orders, approvals and
other authorizations necessary to hold all concessions, leases and
permits or own its properties, including, without limitation, all
licenses and permits relating to intellectual property, and to carry
on its business as presently conducted and as contemplated in the
Prospectus, and PCBV has not received any notice relating to the
revocation or modification of any such concession, license,
certificate, permit, consent, order, approval or other
authorizations; and
(vii) No authorization, approval, consent or order of any Dutch
court or Dutch governmental authority or agency (other than such as
may be required under the applicable securities laws of the various
jurisdictions in which the Shares will be offered or sold, as to
which they need express no opinion) is required in connection with
the due authorization, execution and delivery of this Agreement or
for the offering issuance, sale or delivery of the Shares to the
Underwriters.
In rendering such opinion, such counsel may rely, to the extent
necessary, (A) as to matters involving documents in the Polish
language and the application of Polish law, upon the opinion of
Baker & McKenzie, Warsaw, special Polish counsel to the Company
(which opinion shall be delivered to the Underwriters at each Time
of Delivery pursuant to this Agreement), (B) as to matters involving
the application of United States federal and New York State law,
upon the opinion of Baker & McKenzie, New York, special counsel to
the Company (which opinion shall be delivered to the Underwriters at
each Time of Delivery pursuant to this Agreement), and (C) as to
matters involving the application of United Kingdom law, upon the
opinion of Ashurst Morris & Crisp, special United Kingdom counsel to
the Company (which opinion shall be delivered to the Underwriters at
each Time of Delivery pursuant to this Agreement). Such counsel may
also rely, to the extent necessary, as to matters of fact (but not
as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public
officials.
(g) Ashurst Morris & Crisp, special United Kingdom counsel to the
Company, shall have furnished to you their written opinion (a draft of
such opinion is attached as Annex II(f) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) Each U.K. Designated Subsidiary has been duly incorporated
and is validly existing as a corporation under the laws of the
United Kingdom, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Prospectus and is not required to be qualified as a foreign
corporation to transact business or to own or lease property in any
jurisdiction where it owns or leases property or transacts business;
all of the issued and outstanding capital stock of each U.K.
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Designated Subsidiary has been duly authorized and validly issued,
is fully paid and non-assessable and, to the best of their knowledge
and information, except as otherwise disclosed in the Prospectus, is
owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity;
(ii) Except as described in the Prospectus, there is not
pending or, to the best of their knowledge, threatened any action,
suit, proceeding, inquiry or investigation, to which the Company or
any subsidiary is a party, or to which the property of the Company
or any subsidiary is subject, before or brought by any court or
governmental agency or body, which might be expected to result in a
material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, or which might reasonably be
expected to materially and adversely affect the properties or assets
thereof or the consummation of (1) this Agreement or the performance
by the Company of its obligations hereunder or (2) the transactions
contemplated by the Prospectus;
(iii) The Company and its U.K. Designated Subsidiaries have
good and marketable title in fee simple to all real property owned
by them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as do
not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property
by the Company and its U.K. Designated Subsidiaries; and any real
property and buildings held under lease by the Company and its U.K.
Designated Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company and its U.K.
Designated Subsidiaries;
(iv) The information in the Prospectus under "Business --
Properties", "Business -- Legal Proceedings", "Regulation", and
"Certain Relationships and Related Transactions", to the extent that
it constitutes matters of law, summaries of legal matters, or legal
proceedings, or legal conclusions, has been reviewed by them
and is correct in all material respects;
(v) All descriptions in the Prospectus of contracts, licenses
and other documents to which a U.K. Designated Subsidiary is a party
are accurate in all material respects; to the best of their
knowledge, there are no franchises, contracts, licenses, indentures,
mortgages, loan agreements, notes, leases or other instruments that
are required to be described in the Prospectus that are not
described or referred to in the Prospectus other than those
described or referred to therein, and the descriptions thereof and
references thereto are correct in all material respects;
(vi) None of the U.K. Designated Subsidiaries is in violation
of its Memorandum and Articles of Association (or other similar
organizational documents) nor is any U.K. Designated Subsidiary in
violation of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over a U.K. Designated Subsidiary or any of their assets or
properties, except as described in the Prospectus, and no default by
a U.K. Designated Subsidiary exists in the due performance or
observance of
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any obligation, agreement, covenant or condition contained in any
contract, license, indenture, mortgage, loan agreement, note, lease
or other agreement or instrument that is described or referred to in
the Prospectus except as described in the Prospectus;
(vii) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby and in
the Prospectus (including the use of proceeds from the sale of the
Shares and described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Company with its obligations under
this Agreement, will not, whether with or without the giving of
notice or lapse of time or both, conflict with or constitute a
breach of, or default under or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of
any U.K. Designated Subsidiary pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
any other agreement or instrument, known to them, to which any U.K.
Designated Subsidiary is a party or by which it or any of them may
be bound, or to which any of the property or assets of such U.K.
Designated Subsidiary is subject, nor will such action result in any
violation of the provisions of the memorandum and articles of
association (or other similar organizational documents) of any U.K.
Designated Subsidiary, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over any U.K. Designated Subsidiary or any of their
respective properties, assets or operations;
(viii) Each of the U.K. Designated Subsidiaries owns or
possesses or has obtained all material governmental licenses,
certificates, permits, concessions, consents, orders, approvals and
other authorizations necessary to hold all concessions, leases and
permits or own its properties, including, without limitation, all
licenses and permits relating to intellectual property, and to carry
on its business as presently conducted and as contemplated in the
Prospectus, and none of the U.K. Designated Subsidiaries has
received any notice relating to the revocation or modification of
any such concession, license, certificate, permit, consent, order,
approval or other authorizations;
(ix) There are no restrictions (legal, contractual or
otherwise) on the ability of the U.K. Designated Subsidiaries to
declare and pay dividends or make any payment or transfer of
property or assets to their shareholder other than those described
in the Prospectus; and
(x) No authorization, approval, consent or order of any court
or governmental authority or agency (other than such as may be
required under the applicable securities laws of the various
jurisdictions in which the Shares will be offered or sold, as to
which they need express no opinion) is required in connection with
the due authorization, execution and delivery of this Agreement or
for the offering issuance, sale or delivery of the Shares to the
Underwriters.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of United States federal and New
York State law, upon the opinion of Baker & McKenzie, New York,
special counsel to the Company (which opinion shall be delivered to
the Underwriters at each Time of Delivery pursuant to this
Agreement), (B) as to matters involving the
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application of Netherlands law, upon the opinion of Baker &
McKenzie, Amsterdam, special Netherlands counsel to PCBV (which
opinion shall be delivered to the Underwriters at each Time of
Delivery pursuant to this Agreement), and (C) as to matters
involving documents in the Polish language and the application of
Polish law, upon the opinion of Baker & McKenzie, Warsaw, special
Polish counsel to the Company (which opinion shall be delivered to
the Underwriters at each Time of Delivery pursuant to this
Agreement). Such counsel may also rely, to the extent necessary, as
to matters of fact (but not as to legal conclusions), to the extent
they deem proper, on certificates of responsible officers of the
Company and public officials.
(h) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement and also at each Time of
Delivery, KPMG Peat Marwick LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex I hereto
(the executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex I(a) hereto and a draft of the form of
letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto;
(i)(1) Neither the Company nor any of its Designated Subsidiaries
shall have sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Prospectus, and (2) since the respective dates as of which information
is given in the Prospectus there shall not have been any change in the
capital stock or consolidated long-term or short-term debt of the Company
or any of its Polish subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its Polish subsidiaries, otherwise than as
set forth or contemplated in the Prospectus, the effect of which, in any
such case described in Clause (1) or (2), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(j) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded PCI's debt securities or preferred stock
by any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that it
has under surveillance or review, with possible negative implications, its
rating of any of PCI's debt securities or preferred stock;
(k) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or on NASDAQ; (ii) a
suspension or material limitation in trading in the Company's securities
on NASDAQ; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State or Polish authorities; (iv)
the outbreak or escalation of hostilities involving the
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United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this Clause
(iv) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus; or (v) the occurrence of any
material adverse change in the existing financial, political or economic
conditions in the United States, the United Kingdom or Poland or elsewhere
which, in the judgment of the Representatives would materially and
adversely affect the financial markets or the market for the Shares and
other equity securities.
(l) The Shares to be sold at such Time of Delivery shall have been
duly listed for quotation on NASDAQ;
(m) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each [Principal Shareholder]
substantially to the effect set forth in Subsection 5(e) hereof in form
and substance satisfactory to you;
(n) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(o) The Company shall have furnished or caused to be furnished to you
at such Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as to
the performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (i) of this Section and as to such other
matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment
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 stated
therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however,
that the Company shall 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
an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through Goldman, Sachs & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission
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or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through Goldman, Sachs & Co. expressly for use therein; and
will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under
such subsection. 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 it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim
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) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other from the offering of the
Shares. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the
one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Shares purchased under this Agreement (before deducting expenses) received
by the Company bear to the total underwriting discounts and
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commissions received by the Underwriters with respect to the Shares
purchased under this Agreement, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one
hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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. The Underwriters' obligations
in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 8 shall be in addition
to any liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of
Delivery, you may in your discretion arrange for you or another party or
other parties to purchase such Shares on the terms contained herein. If
within thirty-six hours after such default by any Underwriter you do not
arrange for the purchase of such Shares, then the Company shall be
entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to you to purchase such Shares
on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase
of such Shares, or the Company notifies you that it has so arranged for
the purchase of such Shares, you or the Company shall have the right to
postpone such Time of Delivery for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to
the Registration Statement or the Prospectus which in your opinion may
thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to this
Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate number of such
Shares which
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remains unpurchased does not exceed one-eleventh of the aggregate number
of all the Shares to be purchased at such Time of Delivery, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the number of Shares which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
number of Shares which such Underwriter agreed to purchase hereunder) of
the Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery, or if
the Company shall not exercise the right described in subsection (b) above
to require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the
Second Time of Delivery, the obligations of the Underwriters to purchase
and of the Company to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the
Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, any Shares
are not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Shares not so delivered, but the Company shall then be
under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Goldman, Sachs & Co. on behalf of you as the
Representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the Representatives in care of Goldman, Sachs &
Co., 85 Broad Street, New York, New York 10004, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements
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shall take effect at the time of receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
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If the foregoing is in accordance with your understanding, please sign and
return to us one counterpart for the Company and one counterpart for each of the
Representatives plus one counterpart for each counsel, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of Agreement among Underwriters (U.S. Version), the form of
which shall be submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
Very truly yours,
@Entertainment, Inc.
By: ______________________________
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: ________________________________________________________
(Goldman, Sachs & Co.)
By: ________________________________________________________
(Merrill Lynch, Pierce, Fenner & Smith Incorporated)
On behalf of each of the Underwriters
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30
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
- - ----------------------------------------------------- --------------- ------------------
Goldman, Sachs & Co..................................
Merrill Lynch, Pierce, Fenner & Smith Incorporated...
[Names of other Underwriters]........................
Total..............................................
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SCHEDULE II
DESIGNATED SUBSIDIARIES
U.S. DESIGNATED SUBSIDIARIES:
Poland Communications, Inc.
Mozaic, Inc.
POLISH DESIGNATED SUBSIDIARIES:
Polska Telewizja Kablowa S.A
Polska Telewizja Kablowa -- Warszawa S.A.
Polska Telewizja Kablowa -- Krakow, S.A.
Polska Telewizja Kablowa -- Ryntronik, S.A.
Polska Telewizja Kablowa -- Lublin, S.A.
Polska Telewizja Kablowa -- Szczecin Sp. z o.o.
Potlekab Sp. z o.o.
TV Kabel Sp. z o.o.
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ProCable Sp. z o.o.
Mozaic Entertainment Sp. z o.o.
Polskie Media. S.A.
Ground Zero Media Sp. z o.o.
Telewizja Kablowa GOSAT-Service Sp. z o.o.
U.K. DESIGNATED SUBSIDIARY:
At Entertainment Limited
NETHERLANDS DESIGNATED SUBSIDIARY:
Poland Cablevision (Netherlands) B.V.