Shareholders' Agreement - OTV Holdings Ltd., Sun TSI Subsidiary Inc., and OpenTV Corp.
SHAREHOLDERS' AGREEMENT
dated October 23, 1999
among
OTV HOLDINGS LIMITED
and
SUN TSI SUBSIDIARY, INC.
and
OPENTV CORP.
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
1. RECITALS ................................................................ 1
2. DEFINITIONS AND INTERPRETATION .......................................... 1
3. TRANSFER OF SHARES ...................................................... 3
4. GOVERNING LAW, ARBITRATION AND LIMITATION
ON DAMAGES .............................................................. 6
5. DURATION AND TERMINATION ................................................ 8
6. WAIVERS ................................................................. 9
7. ASSIGNMENT .............................................................. 9
8. ENTIRE AGREEMENT ........................................................ 9
9. NOTICES ................................................................. 10
10.CONFLICT WITH OTHER DOCUMENTS ........................................... 12
11.COUNTERPARTS ............................................................ 12
12.PARENT UNDERTAKING ...................................................... 12
-2-
<PAGE>
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT is entered into as of this 23rd day of
October 1999, by and among OTV Holdings Limited, a company incorporated in the
British Virgin Islands ("OTVH"), Sun TSI Subsidiary, Inc., a Delaware
corporation ("SSI"), and OpenTV Corp., a company incorporated in the British
Virgin Islands (the "Company").
1. RECITALS
1.1. The Company and SSI have entered into --
1.1.1. an Exchange Agreement, dated of even date herewith (the
"Exchange Agreement"), pursuant to which SSI has the right to
exchange all of its existing shares of Class B Common Stock in
OpenTV, Inc., a Delaware corporation, for B Shares of the
Company.
1.1.2. a C-2 Convertible Preference Shares Purchase Agreement, dated
of even date herewith, pursuant to which SSI has agreed to
subscribe for C-2 Convertible Preference Shares of the Company,
which shares are convertible into A Shares of the Company under
certain circumstances.
1.2. SSI and OTVH wish to enter into this Agreement in order to
regulate some aspects of their relationship as holders of shares
of the Company.
2. DEFINITIONS AND INTERPRETATION
2.1. The section headings used herein are inserted for reference
purposes only and not in any way affect the meaning or
interpretation of this Agreement.
2.2. As used in this Agreement, the masculine, feminine or neuter
gender, and the singular or plural, shall be deemed to include
the others whenever and wherever the context so requires.
2.3. Unless the context otherwise requires, the terms defined in this
Section 2.3 shall have the meanings herein specified for all
purposes of this Agreement:
-3-
<PAGE>
"Affiliate" mean any Person which directly or indirectly Controls, is
---------
Controlled by, or is under common Control with, the indicated Person;
"Agreement" means this Shareholders' Agreement and the schedules
---------
hereto;
"A Shares" means A Ordinary Shares in the capital of the Company;
--------
"B Shares" means B Ordinary Shares in the capital of the Company;
--------
"Control" means having a direct or indirect ownership interest in
-------
capital or profits exceeding fifty percent (50%) in a Person or the right to
exercise over fifty percent (50%) of the voting rights with respect to the
selection of the board of directors or other governing body of such Person;
"Encumbrance" means any interest or equity of any person (including
-----------
any right to acquire, option or right of pre-emption) or any mortgage, charge,
pledge, lien, assignment, hypothecation, security interest, title retention or
any other security agreement or arrangement;
"Investors' Rights Agreement" means the agreement of that title
---------------------------
between the Company, OTVH, SSI and the Investors dated of even date herewith;
"Investors" means the Persons defined as such in the Investors' Rights
---------
Agreement;
"Permitted Transferee" means a Person to whom SSI and/or OTVH has
--------------------
transferred Shares in accordance with Section 2(b) of the Investors' Rights
Agreement;
"Person" means any natural person, corporation, limited liability
------
company, trust, association, company, partnership, joint venture or other entity
and any governmental agency, instrumentality or political subdivision;
"Shares" means shares in the capital of the Company of whatever class,
------
including B Shares currently issued or hereafter acquired, including without
limitation upon the exchange of securities pursuant to the Exchange Agreement;
"Shareholders" means SSI, OTVH and their respective Permitted
------------
Transferees from time to time in accordance herewith;
"Transfer" means in relation to any Share or any legal or beneficial
--------
interest in a Share, includes, whether voluntarily or involuntarily, (i) the
sale, transfer, lease, assignment, grant, renunciation, alienation, or disposal
of such Share or of any right or
-4-
<PAGE>
interest which a Person may have in the Company as a result of such right or
interest in that Share; (ii) entering into any agreement in respect of the votes
attached to such Share; (iii) creating or granting any Encumbrance over or in
respect of such Share except if the Person in whose favor the Encumbrance has
been given or created will have agreed in writing to be bound by the provisions
of this Agreement; and (iv) any agreement (whether or not subject to conditions)
to do or create or grant any of the foregoing.
3. TRANSFER OF SHARES
3.1. Each Shareholder undertakes that it will not Transfer any of its
Shares during the term of this Agreement otherwise than in accordance
with the provisions of this Agreement or the provisions of the
Investors' Rights Agreement, except as provided in that certain letter
between OTVH and News America Incorporated, dated as of the date of
this Agreement, regarding the voting of shares in favor of the
election to the Board of Directors of the Company a nominee of News
under certain circumstances.
Permitted Transfers
3.2 A Shareholder may, at any time and on any terms (including as to
price), Transfer all (but not part only) of its Shares to any of
its Affiliates, provided that -
3.2.1. the transferor shall remain a party to this Agreement and
hereby agrees to guarantee the performance by the transferee of
its obligations pursuant to the provisions of this Agreement and
to indemnify the other Shareholder from and against a breach by
such transferee of any of its obligations under this Agreement;
3.2.1. it shall be a condition precedent to any such Transfer (and any
registration thereof) that the transferee agrees in writing with
the other Shareholder to observe, perform and be bound by the
terms and conditions of this Agreement as if references herein to
the transferor were references to the transferee;
3.2.2. if the transferee ceases to be an Affiliate of OTVH or SSI, as
the case may be, then the transferor shall cause the transferee
to Transfer to the transferor or another Affiliate of OTVH or
SSI, as
-5-
<PAGE>
the case may be, all its Shares prior to the date of such
cessation in accordance with this Section 3.2.
3.3. Any attempted Transfer other than in accordance with this Agreement or
the Investors' Rights Agreement shall be void ab initio, and the
Company shall not give effect to any Transfer made in contravention of
the provisions of this Section 3 or any other express provision of
this Agreement or of the Investors' Rights Agreement and shall not
reflect on its records any changes in record ownership of the Shares
pursuant to any such attempted Transfer.
Right of First Refusal
3.4. Subject to the provisions of Section 3.8, if a Shareholder (the
"Offeror") wishes to Transfer any or all of its Shares, it shall, by
notice in writing (the "Offer") to the Company and to the other
Shareholder (the "Offeree"), offer to sell to the Offeree such Shares
("Sale Shares") at the price and on the terms specified in the Offer.
The Offer shall specify the material terms and conditions including,
without limitation, the price at which the Offeror is prepared to sell
the Sale Shares and shall remain open for acceptance by the Offeree
for 15 days from the date of the Offer (the "Offer Period"). No
Shareholder may offer to sell its Shares except on an "all cash"
basis, provided that a Shareholder may offer to sell its Shares in
exchange for immediately liquid, freely tradeable marketable
securities which are listed on a national securities exchange.
3.5. If the Offeree shall not have accepted an Offer in respect of all (but
not less than all) of the Sale Shares during the Offer Period, the
Offeror (a) if OTVH, shall be entitled to sell the Sale Shares to the
Investors or others in accordance with the Investors' Rights
Agreement, but at a price which shall not be less than that, and on
terms and conditions which are not, taken as a whole, more favorable
than those at which the Offeree was entitled to purchase the Sale
Shares in terms of Section 3.4. If no such sale shall have been
effected during the periods stipulated in the Investors' Rights
Agreement, then the Offeror shall not be entitled to effect any
Transfer of any or all of its Sale Shares thereafter unless the
provisions of Section 3.4 shall again have been complied with in
respect of such Shares (b) if SSI, shall be entitled, within 30 days
after such non-acceptance, to sell the Sale Shares, but at a price
which shall not be less than that, and on terms and conditions which
are not, taken as a whole, more favorable than those at which the
Offeree was entitled to purchase the Sale Shares in
-6-
<PAGE>
terms of Section 3.4. If SSI shall not have effected such sale during
such 30-day period, then the Offeror shall not be entitled to effect
any Transfer of any or all of its Shares thereafter unless the
provisions of Section 3.4 shall again have been complied with in
respect of such Shares.
3.6. If the Offeree elects to purchase all of the Sale Shares as provided
in Section 3.4, the Offeror shall be obliged to sell, and the Offeree
shall be obliged to purchase, the Sale Shares on the terms set out in
the Offer by the close of business on the twentieth day following the
expiration of the fifteen (15) day period referred to in Section 3.4,
at the registered office of the Company (or such other time, date and
place as may be agreed by the Offeror and the Offeree).
3.7. At the completion of the sale and purchase of the Sale Shares to the
Offeree -
3.7.1. the Offeree shall use its best efforts to ensure the immediate
release of all guarantees, indemnities and similar covenants, if
any, given by the Offeror in favor or for the benefit of the
Company and specified in the Offer (and pending such release
shall keep the Offeror fully and effectively indemnified from and
against all claims arising under such guarantees, indemnities and
similar covenants);
3.7.2. against delivery in accordance with Section 3.7.3, the Offeree
shall pay the purchase price to the Offeror by way of a wire
transfer of immediately available funds;
3.7.3. concurrent with payment of the purchase price in accordance
with Section 3.7.2, the Offeror shall deliver to the Offeree
share certificates (including executed share powers with respect
thereto) and such other documents of title as the Offeree may
reasonably require to show good title to the Sale Shares and to
enable the Offeree to be registered as holder of the Sale Shares.
Transfers
3.8. Each Shareholder undertakes to exercise all voting rights to ensure
that any Transfer of Shares made in accordance with this Agreement can
be effected in accordance herewith and that in such an event the
Shareholders shall adopt a resolution to enable such a Transfer to
take effect and in such
-7-
<PAGE>
resolution the Shareholders shall waive any inconsistent or
conflicting rights which they may have under the Company's Memorandum
of Association or Articles of Association in relation to such
Transfer.
4. GOVERNING LAW, ARBITRATION AND LIMITATION ON DAMAGES
4.1. This Agreement shall be governed by and construed in all respects in
accordance with the laws (without regard to the laws of conflicts of
law) of the State of California, except to the extent relating to
matters of corporate governance, which shall be governed by and
construed in all respects in accordance with the laws (without regard
to the laws of conflicts of law) of the British Virgin Islands.
4.2. If any dispute arises between the parties in connection with -
4.2.1. the formation or existence of, the implementation of or the
interpretation or application of, the provisions of the parties'
respective rights and obligations in terms of or arising out of
this Agreement or its breach or termination; or
4.2.2. the validity, enforceability, rectification, termination or
cancellation, whether in whole or in part, of this Agreement, or
4.2.3. which relates in any way to any matter affecting the interests
of the parties in terms of this Agreement, and the parties are
unable to resolve their dispute, then any party shall be entitled
to refer the dispute in the first instance, to the respective
nominated senior officers of the Shareholders for resolution.
4.3. If the matter in dispute shall not have been resolved within thirty
(30) days of it having been so referred under Section 4.2, any
Shareholder may refer the matter in dispute for determination by final
arbitration in Los Angeles, California in accordance with the Rules of
the London Court of International Arbitration ("LCIA") (which Rules
are deemed to be incorporated by reference into this Section) by a
neutral arbitrator which shall be selected by the Shareholders. If the
Shareholders are unable to agree on a neutral arbitrator within
fifteen (15) days after the expiration of the thirty day period
referred to in the preceding sentence, then each Shareholder shall
select an arbitrator (a "Party Arbitrator") within five (5) days after
expiration of such fifteen (15) day period. An additional
-8-
<PAGE>
arbitrator, who shall be the chairman of the tribunal, shall be
appointed by agreement between the Party Arbitrators within thirty
(30) days after the date on which the Party Arbitrators were selected,
failing which, such arbitrator shall be appointed by the relevant
appointing authority under the Rules of the LCIA. The arbitrators
shall establish the procedural rules applicable to the proceedings.
Any arbitral award shall be final and binding upon the parties and
this Agreement places no restriction on the jurisdiction in which such
award shall be enforced.
4.4. Section 4.3 shall not preclude any party from obtaining interim
injunctive relief on an urgent basis from a court of competent
jurisdiction, pending any decision of the arbitrators under Section
4.3. In addition, the parties hereto acknowledge and agree that they
have no adequate remedy at law for any breach or threatened breach of
any covenant or agreement contained in this Agreement and that any
party may, in addition to the other remedies that may be available to
it, commence proceedings in equity for an injunction preliminarily or
permanently enjoining any other party from breaching or threatening
any such breach of any such covenant or agreement. With respect of any
such proceeding in equity, it shall be presumed that the remedies at
law or otherwise available to any party would be inadequate and that
it would suffer irreparable harm as a result of the violation of any
provision hereof by any other party.
4.5. The provision of this Section -
4.5.1. constitute an irrevocable consent by the parties to any
proceedings in terms hereof and no party shall be entitled to
withdraw therefrom or claim at any such proceedings that it is
not bound by such provisions;
4.5.2. are severable from the rest of this Agreement and shall remain
in effect despite the termination of or invalidity for any reason
of this Agreement.
4.6. In connection with any injunctive relief sought under Section 4.4,
each party to this Agreement, by its execution hereof, (i) hereby
irrevocably submits to the exclusive jurisdiction of the state courts
of the State of California or the United States District Court located
in the State of California, and (ii) hereby waives, to the extent not
prohibited by applicable law, and agrees not to assert, by way of
motion, as a defense or otherwise, in any such action, any claim that
it is not subject personally to
-9-
<PAGE>
the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that any such
proceeding brought in one of the above-named courts is improper, or
that this Agreement or the subject matter hereof may not be enforced
in or by such court. Each party hereto hereby consents to service of
process in any such proceeding in any manner permitted by Californian
law, and agrees that service of process by registered or certified
mail, return receipt requested, at its address specified pursuant to
Section 9.2 hereof is reasonably calculated to give actual notice.
4.7. No party shall be liable for any indirect, special, incidental or
consequential loss or damage (including, without limitation, loss of
profits or loss of use) suffered by any other party arising from or
relating to a party's performance, non-performance, breach of or
default under a covenant, warranty, representation, term or condition
hereof. Each party waives and relinquishes claims for indirect,
special, incidental or consequential damages.
4.8. No party shall have the right to recover punitive damages from the
other party, and each party hereby waives and relinquishes any and all
punitive damage claims.
4.9. The limitations on liability and damages referred to in Sections 4.7
and 4.8 apply to all causes of action that may be asserted under this
Agreement, whether in respect of breach of contract, breach of
warranty, tort, product liability, negligence or otherwise.
5. DURATION AND TERMINATION
Except as otherwise provided herein, this Agreement shall continue in full
force and effect without time limit until both Shareholders agree in
writing to terminate this Agreement. Notwithstanding the foregoing, upon a
Transfer of all of the Shares then held by a Shareholder (and its
Affiliates) and the termination or expiration of all rights to acquire
shares of capital stock of the Company then held by a Shareholder (and its
Affiliates), such Shareholder shall cease to be subject to the terms and
conditions of this Agreement except for those provisions which expressly
provide they shall apply to any party hereto regardless of the ownership or
holding of any Shares by any party hereto or which expressly provide that
they shall survive any Transfer in accordance herewith.
-10-
<PAGE>
6. WAIVERS
6.1. No delay in exercising or failure to exercise any right or remedy
under this Agreement shall operate as a waiver thereof nor shall any
single or partial exercise of any right or remedy preclude either the
further exercise thereof or the exercise of any other right or remedy
provided in this Agreement.
6.2. In the event that any party shall expressly waive any breach, default
or omission hereunder, without the prior written consent of the other
parties hereto, no such waiver shall apply to, or operate as, a waiver
of similar breaches, defaults or omissions or be deemed to be a waiver
of any other breach, default or omission hereunder.
7. ASSIGNMENT
No party hereto shall be entitled to transfer this Agreement or any of its
rights and obligations hereunder without the prior written consent of the
other parties, except to a transferee of Shares in accordance with this
Agreement.
8. ENTIRE AGREEMENT
8.1. This Agreement constitutes the entire agreement between the parties
hereto concerning the subject matter hereof and supersedes all prior
agreements between the parties concerning the subject matter hereof.
Except as provided herein, no amendment, change or additions hereto
shall be effective or binding on any party unless reduced to writing
and executed by all of the parties hereto.
8.2. Each of the parties acknowledges that in entering into this Agreement
it is not relying on any representation or other statement which is
not set out in this Agreement.
8.3. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Subject to the immediately preceding sentence, this Agreement shall
not run to the benefit of or be enforceable by any Person other than a
party to this Agreement and its successors and permitted assigns.
-11-
<PAGE>
9. NOTICES
9.1. All notices and communications under this Agreement shall be given in
writing and shall be delivered to the relevant party or sent by
registered airmail or facsimile to the address of that party or that
party's facsimile number specified in Section 9.2. Unless otherwise
specified herein, each notice or other communication shall be deemed
effective or having been given (i) on the date received, if personally
delivered, (ii) eight (8) business days after being sent, if sent by
registered airmail, or (iii) one (1) business day after being sent, if
sent by telecopier with confirmation of transmission.
9.2. Notices and communications shall be addressed as follows:
if to OTVH: OTV Holdings Limited
c/o Myriad International Holdings BV
Jupiterstraat 13-15
2132 HC Hoofddorp
The Netherlands
Attention: Mr. Allan Rosenzweig
Facsimile No.: +31 2355 62880
with a copy to: Paul, Hastings, Janofsky & Walker LLP
555 South Flower Street, 23rd Floor
Los Angeles, California 90071
Attention: Siobhan McBreen Burke, Esq.
Facsimile No.: (213) 627-0705
if to SSI: Sun TSI Subsidiary, Inc.
c/o Sun Microsystems, Inc.
901 San Antonio Road
Mail Stop PAL1-521
Palo Alto, California 94303
Attention: Laura Fennell, Esq.
Facsimile No: (650) 336-0359
with a copy to: Fenwick & West LLP
Two Palo Alto Square, Suite 700
Palo Alto, California 94306
-12-
<PAGE>
Attention: David W Healy, Esq.
Facsimile No: (650) 494-1417
if to the Company: OpenTV Corp.
c/o Havelet Trust Company (BVI) Limited
Abbott Building
Post Office Box 3186
Road Town
Tortola, British Virgin Islands
with a copy to: Paul, Hastings, Janofsky & Walker LLP
555 South Flower Street, 23rd Floor
Los Angeles, California 90071
Attention: Siobhan McBreen Burke, Esq.
or such other address of a party, Person and/or fax number as that
party shall have notified in writing to all other parties in
accordance with Section 9.1.
9.3. All notices and communications shall be given and made in the English
language.
10. CONFLICT WITH OTHER DOCUMENTS
In the event of any conflict between the provisions of this Agreement and
the provisions of the Company's Memorandum of Association or Articles of
Association then, subject to the provisions of British Virgin Islands law,
the provisions of this Agreement shall prevail as between the Shareholders
and the Shareholders shall exercise all voting and other rights and powers
legally available to them (whether as Shareholders or otherwise) to give
effect to the provisions of this Agreement. If there is an irreconcilable
conflict between a provisions of this Agreement and a mandatory provisions
of British Virgin Islands law, the parties shall use their respective best
efforts to agree on an alternative mechanism or provision which is as close
as reasonably possible to the provisions of this Agreement and the
conflicting provisions contained in this Agreement shall be invalid (but
only to the extent necessary), provided that such invalidity shall not
affect the other provisions of this Agreement.
-13-
<PAGE>
11. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, with the same effect as
if all parties had signed the same document. All such counterparts shall be
deemed an original, shall be construed together and shall constitute one
and the same instrument.
12. PARENT UNDERTAKING
As inducement to the execution of this Agreement by the parties hereto,
each of Sun Microsystems, Inc. and MIH Limited have executed an
unconditional and irrevocable guaranty in substantially the forms as
attached hereto as Schedule 1 and Schedule 2, respectively.
-14-
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorised representative as of the date
first set forth above.
OTV HOLDINGS LIMITED
By: _____________________
Title: ____________________
SUN TSI SUBSIDIARY, INC
By: _____________________
Title: ____________________
OPENTV CORP.
By: _____________________
Title: ____________________
-15-
<PAGE>
SCHEDULE 1
FORM OF GUARANTY
For good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, Sun Microsystems, Inc., a Delaware corporation hereby
unconditionally and irrevocably guarantees the full, complete and timely
performance of all obligations, covenants and agreements of Sun TSI Subsidiary,
Inc., a Delaware corporation, contained in or made pursuant to that certain
Shareholders Agreement (the "Shareholders Agreement") among OTV Holdings
Limited, a company incorporated in the British Virgin Islands ("OTVH"), Sun TSI
Subsidiary Inc., a Delaware corporation ("SSI"), and OpenTV Corp., a company
incorporated in the British Virgin Islands (the "Company").
This Guaranty shall be construed in accordance with and governed by the laws of
the State of California. Guarantor (i) hereby irrevocably submits to the
exclusive jurisdiction of the state courts of the State of California or the
United States District Court located in the State of California for the purpose
of any action, claim, cause of action or suit (in contract, tort or otherwise),
inquiry, proceeding or investigation arising out of or based upon this Guaranty
or relating to the subject matter hereof, (ii) hereby waives, to the extent not
prohibited by applicable law, and agrees not to assert, by way of motion, as a
defence or otherwise, in any such action, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that any such proceeding brought
in one of the above-named courts is improper, or that this Guaranty or the
subject matter hereof may not be enforced in or by such court and (iii) hereby
agrees not to commence or maintain any action, claim, cause of action or suit
(in contract, tort or otherwise), inquiry, proceeding or investigation arising
out of or based upon this Guaranty or relating to the subject matter hereof
other than before one of the above-named courts nor to make any motion or take
any other action seeking or intending to cause the transfer or removal of any
such action, claim, cause of action or suit (in contract, tort or otherwise),
inquiry, proceeding or investigation to any court other than one of the
above-named courts whether on the grounds of inconvenient forum or otherwise.
Guarantor hereby consents to service of process in any such proceeding in any
manner permitted by Californian law, and agrees that service of process by
registered or certified mail, return receipt requested, at its address specified
below is reasonably calculated to give actual notice.
<PAGE>
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed by its
duly authorized officer as of this 23rd day of October 1999.
SUN MICROSYSTEMS, INC.
By: ______________________
Title: _____________________
-2-
<PAGE>
SCHEDULE 2
FORM OF GUARANTY
For good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, MIH Limited, a British Virgin Islands corporation hereby
unconditionally and irrevocably guarantees the full, complete and timely
performance of all obligations, covenants and agreements of OpenTV Corp., a
British Virgin Islands corporation, contained in or made pursuant to that
certain Shareholders Agreement (the "Shareholders Agreement") among OTV Holdings
Limited, a company incorporated in the British Virgin Islands ("OTVH"), Sun TSI
Subsidiary Inc., a Delaware corporation ("SSI"), and OpenTV Corp., a company
incorporated in the British Virgin Islands (the "Company").
This Guaranty shall be construed in accordance with and governed by the laws of
the State of California. Guarantor (i) hereby irrevocably submits to the
exclusive jurisdiction of the courts of England for the purpose of any action,
claim, cause of action or suit (in contract, tort or otherwise), inquiry,
proceeding or investigation arising out of or based upon this Guaranty or
relating to the subject matter hereof, (ii) hereby waives, to the extent not
prohibited by applicable law, and agrees not to assert, by way of motion, as a
defence or otherwise, in any such action, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that any such proceeding brought
in one of the above-named courts is improper, or that this Guaranty or the
subject matter hereof may not be enforced in or by such court and (iii) hereby
agrees not to commence or maintain any action, claim, cause of action or suit
(in contract, tort or otherwise), inquiry, proceeding or investigation arising
out of or based upon this Guaranty or relating to the subject matter hereof
other than before one of the above-named courts nor to make any motion or take
any other action seeking or intending to cause the transfer or removal of any
such action, claim, cause of action or suit (in contract, tort or otherwise),
inquiry, proceeding or investigation to any court other than one of the
above-named courts whether on the grounds of inconvenient forum or otherwise.
Guarantor hereby consents to service of process in any such proceeding in any
manner permitted by British law, and agrees that service of process by
registered or certified mail, return receipt requested, at its address specified
below is reasonably calculated to give actual notice.
<PAGE>
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed by its
duly authorised officer as of this 23rd day of October 1999.
MIH LIMITED
By: ______________________
Title: _____________________
-3-