Selection of Investment Banks. (a) The TEF Group and the PT Group have jointly retained [*] as the first choice of Investment Banks to conduct the Independent Valuations required pursuant this Agreement or the Shareholders Agreement (each a “First Choice Investment Bank” and collectively the “First Choice Investment Banks). For purposes of this Section it shall be considered that [*] has been appointed by the TEF Group and that [*] has been appointed by the PT Group. (b) Save as otherwise provided in Section 1.5(b)(iv)(A) below, the selection of any investment banks different from the First Choice Investment Banks, either as a result of any conflict of interest, or default, or at the request of the TEF Group or the PT Group, shall be made pursuant to the provisions of this Section 1.4(b). In the event that an Independent Valuation is required under this Agreement or the Shareholders Agreement, the proposing Group shall deliver to the other Group and to the Company a notice requesting an Independent Valuation (“Independent Valuation Notice”) which may contain its intention to substitute one or both of the First Choice Investment Banks. Should any of the First Choice Investment Banks be requested to be replaced, the following will apply: (i) If the Group delivering the Independent Valuation Notice has shown its intention to substitute (x) both First Choice Investment Banks or (y) the First Choice Investment Bank appointed by it, it shall include in the Independent Valuation Notice a list of three international investment banks from which the other Group shall appoint a replacement Investment Bank (the “First Group List”). (ii) If the Independent Valuation Notice contains the intention of the delivering Group to substitute (x) both First Choice Investment Banks or (y) the First Choice Investment Bank appointed by the receiving Group, such receiving Group shall deliver, within 5 (five) Business Days from the receipt of the Independent Valuation Notice, a list of three international investment banks from which the other Group shall appoint a replacement Investment Bank (the “Second Group List”). (iii) In any other event, even if the Independent Valuation Notice does not contain the intention of the delivering Group to substitute any or both of the First Choice Investment Banks, the receiving Group, within 5 (five) Business Days from the receipt of the Independent Valuation Notice, may submit a Second Group List (if it desires to substitute its First Choice Investment Bank) and/or require the other Group to submit a First Group List (if it desires to substitute the First Choice Investment Bank of the other Group); provided that, in this latter case, within the following 5 (five) Business Days, the Group delivering the Independent Valuation Notice shall submit to the other Group the First Group List. (iv) The First Group List and the Second Group List shall exclude any investment bank which, (x) owns, or at any time after the date hereof will have owned, a significant direct or indirect interest in the capital or (y) has, or at any time after the date hereof will have had, one or more representatives in the board of directors of any of the Groups or in the board of directors of, any of the Wireless Properties or New Acquisitions of the Group providing such list. (v) Failure by one of the Groups to timely send the First Group List or the Second Group List shall be deemed (x) as an acceptance of any of the names contained in the list provided by the non-defaulting Group and an implied authorisation for the non-defaulting Group to select any of such names to be an Investment Bank for the purposes hereunder, or (y) if no list has been delivered by the non-defaulting Group, as an authorisation for such non-defaulting Group to elect any internationally recognised investment bank as the First Choice Investment Bank of the defaulting Group. (vi) The Group receiving the First Group List or the Second Group List shall select one name to be its choice of Investment Bank. Such selection shall be binding on the other Group and shall be made and notified to the other Group and the Company no later than 5 (five) Business Days after the receipt of the First or the Second Group List (as the case may be). The Investment Bank chosen by one Group within the list provided by the other Group shall be considered, from time to time, the First Choice Investment Bank appointed by this latter Group. (vii) Failure by a Group to timely select an Investment Bank from the First or the Second Group List, as applicable, shall be deemed as an acceptance of any of the investment banks contained therein and an implied authorisation for the other Group to select any of such investment banks to be an Investment Bank for the purposes hereunder. The Investment Bank shall be considered the First Choice Investment Bank appointed by the defaulting Group. (c) No later than 15 (fifteen) Business Days from the later of the date of (i) the receipt of the Independent Valuation Notice, or (ii) if applicable, the selection of the later First Choice Investment Bank selected in accordance with Section 1.4(b) above, the Company shall take any and all actions as may be required to complete the retaining by the Company of the First Choice Investment Banks, including obtaining the necessary corporate approvals, executing the relevant mandate letters (the “Mandate Letters”) and issuing letters of instruction from time to time, and shall otherwise correspond with the First Choice Investment Banks (the PT Group and the TEF Group undertaking not to correspond with the Investment Banks). The Groups shall procure that the Company complies with its foregoing obligations. (d) If the Company fails to execute the relevant Mandate Letters, then such Mandate Letters shall be executed and all other correspondence shall be undertaken: (i) in the case of an Independent Valuation in terms of Section 1.6.1(d)(ii)(D) below, by a Party in the TEF Group; (ii) in the case of the acquisition of the relevant Interest in a New Acquisition pursuant to Section 1.6.2 below, by a Party in the Group which nominated the Directors that voted in favour of the acquisition; (iii) in the case of the acquisition of a Further Interest in a Wireless Property pursuant to Section 1.6.4(e)(i) below, by a Party in the Lead Group; (iv) in the case of an Independent Valuation in terms of Section 7.2 below, by a Party in the Group exercising the right to gradually buy; (v) in the case of an Independent Valuation in terms of Section 7.3(a) below, by a Party in the Non-Defaulting Group; (vi) in the case of an Independent Valuation required in terms of Section 4.3(c) of the Shareholders Agreement, by a Party in either Group; (vii) in the case of an Independent Valuation required in terms of Section 5.6 of the Shareholders Agreement, by a Party in the Group exercising the Put; and (viii) in the case of an Independent Valuation required in terms of Section 6.4 of the Shareholders Agreement, by a Party in the PT Group, (in each such case, the other Group and the Company undertaking not to correspond with the First Choice Investment Banks), provided that, in the event that the Directors, nominated by the Group which has the authority pursuant to the foregoing to execute the relevant Mandate Letters, in any way prevented the execution by the Company of the relevant Mandate Letters, then a Party in such Group shall not have the authority to execute the relevant Mandate Letters and the relevant Mandate Letters shall then be executed by a Party in the other Group. (e) Each Mandate Letter shall contain, inter alia, (i) details of the fees to be paid to the First Choice Investment Bank, which in any case should be according to market practice (ii) a requirement for the First Choice Investment Bank to commence each required Independent Valuation as soon as possible thereafter, but in any event within 45 (forty-five) days from the date of the Mandate Letter, to complete such Initial Valuation, as defined below, (iii) an indication to follow the Independent Valuation Principles and the guidelines and criteria set forth in Exhibit I hereto, (iv) a financial adjustment methodology to calculate the Contribution Valuations as set forth in Exhibit II, and (v) in respect of an Independent Valuation of an Interest in a New Acquisition, the requirement to conduct a due diligence review (legal, tax and accounting) to be made by independent experts engaged in conjunction with the other selected First Choice Investment Bank, the cost of which shall be included in the fees to be paid to the First Choice Investment Banks. (f) The fees charged by the First Choice Investment Banks for conducting Independent Valuations shall be paid by the Party executing the Mandate Letters, provided that: (i) if the Company has not executed the relevant Mandate Letters, then in the case of an Independent Valuation required in terms of Section 1.6.2 below, Section 1.6.4(e)(i) below, or Section 4.3(c) of the Shareholders Agreement (as the case may be), the Company shall forthwith reimburse such Party for such fees; (ii) if the Company has executed the relevant Mandate Letters, then in the case of an Independent Valuation required in terms of Section 7.2 below, each Group shall forthwith reimburse the Company for the fees paid to its First Choice Investment Bank, and if a Party in one of the Groups has executed the relevant Mandate Letters, the other Group shall reimburse the relevant Party in the firstmentioned Group for the fees paid to the other Group´s First Choice Investment Bank; (iii) in the case of an Independent Valuation in terms of Section 7.3(a), if a Party in the Non-Defaulting Group has executed the relevant Mandate Letters, then the Defaulting Group shall reimburse the relevant Party in the Non-Defaulting Group, and if the Company has executed the relevant Mandate Letters, the Defaulting Group shall reimburse the Company; (iv) in the case of an Independent Valuation required in terms of Section 5.6 of the Shareholders Agreement, if the Target Shareholder has not executed the relevant Mandate Letters, the Target Shareholder shall forthwith reimburse the Party which executed the Mandate Letters; and (v) in the case of an Independent Valuation required in terms of Section 6.4 of the Shareholders Agreement, if a Party in the PT Group has not executed the relevant Mandate Letters, the PT Group shall forthwith reimburse the Party which executed the Mandate Letters. (g) If applicable, the fees charged by the Third Investment Banks for conducting Independent Valuations, shall be shared by the Groups equally.
Appears in 2 contracts
Samples: Subscription Agreement (Telefonica S A), Subscription Agreement (Telefonica Mobile Inc)
Selection of Investment Banks. (a) The TEF Group and the PT Group have jointly retained [***] and [***], as the first choice of Investment Banks to conduct the Independent Valuations required pursuant this Agreement or the Shareholders Agreement (each a “First Choice Investment Bank” and collectively the “First Choice Investment Banks). For purposes of this Section it shall be considered that [***] has been appointed by the TEF Group and that [***] has been appointed by the PT Group.
(b) Save as otherwise provided in Section 1.5(b)(iv)(A) below, the selection of any investment banks different from the First Choice Investment Banks, either as a result of any conflict of interest, or default, or at the request of the TEF Group or the PT Group, shall be made pursuant to the provisions of this Section 1.4(b). In the event that an Independent Valuation is required under this Agreement or the Shareholders Agreement, the proposing Group shall deliver to the other Group and to the Company a notice requesting an Independent Valuation (“Independent Valuation Notice”) which may contain its intention to substitute one or both of the First Choice Investment Banks. Should any of the First Choice Investment Banks be requested to be replaced, the following will apply:
(i) If the Group delivering the Independent Valuation Notice has shown its intention to substitute (x) both First Choice Investment Banks or (y) the First Choice Investment Bank appointed by it, it shall include in the Independent Valuation Notice a list of three international investment banks from which the other Group shall appoint a replacement Investment Bank (the “First Group List”).
(ii) If the Independent Valuation Notice contains the intention of the delivering Group to substitute (x) both First Choice Investment Banks or (y) the First Choice Investment Bank appointed by the receiving Group, such receiving Group shall deliver, within 5 (five) Business Days from the receipt of the Independent Valuation Notice, a list of three international investment banks from which the other Group shall appoint a replacement Investment Bank (the “Second Group List”).
(iii) In any other event, even if the Independent Valuation Notice does not contain the intention of the delivering Group to substitute any or both of the First Choice Investment Banks, the receiving Group, within 5 (five) Business Days from the receipt of the Independent Valuation Notice, may submit a Second Group List (if it desires to substitute its First Choice Investment Bank) and/or require the other Group to submit a First Group List (if it desires to substitute the First Choice Investment Bank of the other Group); provided that, in this latter case, within the following 5 5
(five) Business Days, the Group delivering the Independent Valuation Notice shall submit to the other Group the First Group List.
(iv) The First Group List and the Second Group List shall exclude any investment bank which, (x) owns, or at any time after the date hereof will have owned, a significant direct or indirect interest in the capital or (y) has, or at any time after the date hereof will have had, one or more representatives in the board of directors of any of the Groups or in the board of directors of, any of the Wireless Properties or New Acquisitions of the Group providing such list.
(v) Failure by one of the Groups to timely send the First Group List or the Second Group List shall be deemed (x) as an acceptance of any of the names contained in the list provided by the non-defaulting Group and an implied authorisation for the non-defaulting Group to select any of such names to be an Investment Bank for the purposes hereunder, or (y) if no list has been delivered by the non-defaulting Group, as an authorisation for such non-defaulting Group to elect any internationally recognised investment bank as the First Choice Investment Bank of the defaulting Group.
(vi) The Group receiving the First Group List or the Second Group List shall select one name to be its choice of Investment Bank. Such selection shall be binding on the other Group and shall be made and notified to the other Group and the Company no later than 5 (five) Business Days after the receipt of the First or the Second Group List (as the case may be). The Investment Bank chosen by one Group within the list provided by the other Group shall be considered, from time to time, the First Choice Investment Bank appointed by this latter Group.
(vii) Failure by a Group to timely select an Investment Bank from the First or the Second Group List, as applicable, shall be deemed as an acceptance of any of the investment banks contained therein and an implied authorisation for the other Group to select any of such investment banks to be an Investment Bank for the purposes hereunder. The Investment Bank shall be considered the First Choice Investment Bank appointed by the defaulting Group.
(c) No later than 15 (fifteen) Business Days from the later of the date of (i) the receipt of the Independent Valuation Notice, or (ii) if applicable, the selection of the later First Choice Investment Bank selected in accordance with Section 1.4(b) above, the Company shall take any and all actions as may be required to complete the retaining by the Company of the First Choice Investment Banks, including obtaining the necessary corporate approvals, executing the relevant mandate letters (the “Mandate Letters”) and issuing letters of instruction from time to time, and shall otherwise correspond with the First Choice Investment Banks (the PT Group and the TEF Group undertaking not to correspond with the Investment Banks). The Groups shall procure that the Company complies with its foregoing obligations.
(d) If the Company fails to execute the relevant Mandate Letters, then such Mandate Letters shall be executed and all other correspondence shall be undertaken:
(i) in the case of an Independent Valuation in terms of Section 1.6.1(d)(ii)(D) below, by a Party in the TEF Group;
(ii) in the case of the acquisition of the relevant Interest in a New Acquisition pursuant to Section 1.6.2 below, by a Party in the Group which nominated the Directors that voted in favour of the acquisition;
(iii) in the case of the acquisition of a Further Interest in a Wireless Property pursuant to Section 1.6.4(e)(i) below, by a Party in the Lead Group;
(iv) in the case of an Independent Valuation in terms of Section 7.2 below, by a Party in the Group exercising the right to gradually buy;
(v) in the case of an Independent Valuation in terms of Section 7.3(a) below, by a Party in the Non-Defaulting Group;
(vi) in the case of an Independent Valuation required in terms of Section 4.3(c) of the Shareholders Agreement, by a Party in either Group;
(vii) in the case of an Independent Valuation required in terms of Section 5.6 of the Shareholders Agreement, by a Party in the Group exercising the Put; and
(viii) in the case of an Independent Valuation required in terms of Section 6.4 of the Shareholders Agreement, by a Party in the PT Group, (in each such case, the other Group and the Company undertaking not to correspond with the First Choice Investment Banks), provided that, in the event that the Directors, nominated by the Group which has the authority pursuant to the foregoing to execute the relevant Mandate Letters, in any way prevented the execution by the Company of the relevant Mandate Letters, then a Party in such Group shall not have the authority to execute the relevant Mandate Letters and the relevant Mandate Letters shall then be executed by a Party in the other Group.
(e) Each Mandate Letter shall contain, inter alia, (i) details of the fees to be paid to the First Choice Investment Bank, which in any case should be according to market practice (ii) a requirement for the First Choice Investment Bank to commence each required Independent Valuation as soon as possible thereafter, but in any event within 45 (forty-five) days from the date of the Mandate Letter, to complete such Initial Valuation, as defined below, (iii) an indication to follow the Independent Valuation Principles and the guidelines and criteria set forth in Exhibit I hereto, (iv) a financial adjustment methodology to calculate the Contribution Valuations as set forth in Exhibit II, and (v) in respect of an Independent Valuation of an Interest in a New Acquisition, the requirement to conduct a due diligence review (legal, tax and accounting) to be made by independent experts engaged in conjunction with the other selected First Choice Investment Bank, the cost of which shall be included in the fees to be paid to the First Choice Investment Banks.
(f) The fees charged by the First Choice Investment Banks for conducting Independent Valuations shall be paid by the Party executing the Mandate Letters, provided that:
(i) if the Company has not executed the relevant Mandate Letters, then in the case of an Independent Valuation required in terms of Section 1.6.2 below, Section 1.6.4(e)(i) below, or Section 4.3(c) of the Shareholders Agreement (as the case may be), the Company shall forthwith reimburse such Party for such fees;
(ii) if the Company has executed the relevant Mandate Letters, then in the case of an Independent Valuation required in terms of Section 7.2 below, each Group shall forthwith reimburse the Company for the fees paid to its First Choice Investment Bank, and if a Party in one of the Groups has executed the relevant Mandate Letters, the other Group shall reimburse the relevant Party in the firstmentioned Group for the fees paid to the other Group´s First Choice Investment Bank;
(iii) in the case of an Independent Valuation in terms of Section 7.3(a), if a Party in the Non-Defaulting Group has executed the relevant Mandate Letters, then the Defaulting Group shall reimburse the relevant Party in the Non-Defaulting Group, and if the Company has executed the relevant Mandate Letters, the Defaulting Group shall reimburse the Company;
(iv) in the case of an Independent Valuation required in terms of Section 5.6 of the Shareholders Agreement, if the Target Shareholder has not executed the relevant Mandate Letters, the Target Shareholder shall forthwith reimburse the Party which executed the Mandate Letters; and
(v) in the case of an Independent Valuation required in terms of Section 6.4 of the Shareholders Agreement, if a Party in the PT Group has not executed the relevant Mandate Letters, the PT Group shall forthwith reimburse the Party which executed the Mandate Letters.
(g) If applicable, the fees charged by the Third Investment Banks for conducting Independent Valuations, shall be shared by the Groups equally.
Appears in 1 contract
Selection of Investment Banks. (a) The TEF Group and the PT Group have jointly retained [***] and [***], as the first choice of Investment Banks to conduct the Independent Valuations required pursuant this Agreement or the Shareholders Agreement (each a “First Choice Investment Bank” and collectively the “First Choice Investment Banks”). For purposes of this Section it shall be considered that [***] has been appointed by the TEF Group and that [***] has been appointed by the PT Group.
(b) Save as otherwise provided in Section 1.5(b)(iv)(A) below, the selection of any investment banks different from the First Choice Investment Banks, either as a result of any conflict of interest, or default, or at the request of the TEF Group or the PT Group, shall be made pursuant to the provisions of this Section 1.4(b). In the event that an Independent Valuation is required under this Agreement or the Shareholders Agreement, the proposing Group shall deliver to the other Group and to the Company a notice requesting an Independent Valuation (“Independent Valuation Notice”) which may contain its intention to substitute one or both of the First Choice Investment Banks. Should any of the First Choice Investment Banks be requested to be replaced, the following will apply:
(i) If the Group delivering the Independent Valuation Notice has shown its intention to substitute (x) both First Choice Investment Banks or (y) the First Choice Investment Bank appointed by it, it shall include in the Independent Valuation Notice a list of three international investment banks from which the other Group shall appoint a replacement Investment Bank (the “First Group List”).
(ii) If the Independent Valuation Notice contains the intention of the delivering Group to substitute (x) both First Choice Investment Banks or (y) the First Choice Investment Bank appointed by the receiving Group, such receiving Group shall deliver, within 5 (five) Business Days from the receipt of the Independent Valuation Notice, a list of three international investment banks from which the other Group shall appoint a replacement Investment Bank (the “Second Group List”).
(iii) In any other event, even if the Independent Valuation Notice does not contain the intention of the delivering Group to substitute any or both of the First Choice Investment Banks, the receiving Group, within 5 (five) Business Days from the receipt of the Independent Valuation Notice, may submit a Second Group List (if it desires to substitute its First Choice Investment Bank) and/or require the other Group to submit a First Group List (if it desires to substitute the First Choice Investment Bank of the other Group); provided that, in this latter case, within the following 5 (five) Business Days, the Group delivering the Independent Valuation Notice shall submit to the other Group the First Group List. Any text removed pursuant to Telefónica, S.A.’s confidential treatment request has been separately filed with the U.S. Securities and Exchange Commission and is marked “[***]” herein.
(iv) The First Group List and the Second Group List shall exclude any investment bank which, (x) owns, or at any time after the date hereof will have owned, a significant direct or indirect interest in the capital or (y) has, or at any time after the date hereof will have had, one or more representatives in the board of directors of any of the Groups or in the board of directors of, any of the Wireless Properties or New Acquisitions of the Group providing such list.
(v) Failure by one of the Groups to timely send the First Group List or the Second Group List shall be deemed (x) as an acceptance of any of the names contained in the list provided by the non-defaulting Group and an implied authorisation for the non-defaulting Group to select any of such names to be an Investment Bank for the purposes hereunder, or (y) if no list has been delivered by the non-defaulting Group, as an authorisation for such non-defaulting Group to elect any internationally recognised investment bank as the First Choice Investment Bank of the defaulting Group.
(vi) The Group receiving the First Group List or the Second Group List shall select one name to be its choice of Investment Bank. Such selection shall be binding on the other Group and shall be made and notified to the other Group and the Company no later than 5 (five) Business Days after the receipt of the First or the Second Group List (as the case may be). The Investment Bank chosen by one Group within the list provided by the other Group shall be considered, from time to time, the First Choice Investment Bank appointed by this latter Group.
(vii) Failure by a Group to timely select an Investment Bank from the First or the Second Group List, as applicable, shall be deemed as an acceptance of any of the investment banks contained therein and an implied authorisation for the other Group to select any of such investment banks to be an Investment Bank for the purposes hereunder. The Investment Bank shall be considered the First Choice Investment Bank appointed by the defaulting Group.
(c) No later than 15 (fifteen) Business Days from the later of the date of (i) the receipt of the Independent Valuation Notice, or (ii) if applicable, the selection of the later First Choice Investment Bank selected in accordance with Section 1.4(b) above, the Company shall take any and all actions as may be required to complete the retaining by the Company of the First Choice Investment Banks, including obtaining the necessary corporate approvals, executing the relevant mandate letters (the “Mandate Letters”) and issuing letters of instruction from time to time, and shall otherwise correspond with the First Choice Investment Banks (the PT Group and the TEF Group undertaking not to correspond with the Investment Banks). The Groups shall procure that the Company complies with its foregoing obligations.
(d) If the Company fails to execute the relevant Mandate Letters, then such Mandate Letters shall be executed and all other correspondence shall be undertaken:
(i) in the case of an Independent Valuation in terms of Section 1.6.1(d)(ii)(D) below, by a Party in the TEF Group;; Any text removed pursuant to Telefónica, S.A.’s confidential treatment request has been separately filed with the U.S. Securities and Exchange Commission and is marked “[***]” herein.
(ii) in the case of the acquisition of the relevant Interest in a New Acquisition pursuant to Section 1.6.2 below, by a Party in the Group which nominated the Directors that voted in favour of the acquisition;
(iii) in the case of the acquisition of a Further Interest in a Wireless Property pursuant to Section 1.6.4(e)(i) below, by a Party in the Lead Group;
(iv) in the case of an Independent Valuation in terms of Section 7.2 below, by a Party in the Group exercising the right to gradually buy;
(v) in the case of an Independent Valuation in terms of Section 7.3(a) below, by a Party in the Non-Defaulting Group;
(vi) in the case of an Independent Valuation required in terms of Section 4.3(c) of the Shareholders Agreement, by a Party in either Group;
(vii) in the case of an Independent Valuation required in terms of Section 5.6 of the Shareholders Agreement, by a Party in the Group exercising the Put; and
(viii) in the case of an Independent Valuation required in terms of Section 6.4 of the Shareholders Agreement, by a Party in the PT Group, (in each such case, the other Group and the Company undertaking not to correspond with the First Choice Investment Banks), provided that, in the event that the Directors, nominated by the Group which has the authority pursuant to the foregoing to execute the relevant Mandate Letters, in any way prevented the execution by the Company of the relevant Mandate Letters, then a Party in such Group shall not have the authority to execute the relevant Mandate Letters and the relevant Mandate Letters shall then be executed by a Party in the other Group.
(e) Each Mandate Letter shall contain, inter alia, (i) details of the fees to be paid to the First Choice Investment Bank, which in any case should be according to market practice (ii) a requirement for the First Choice Investment Bank to commence each required Independent Valuation as soon as possible thereafter, but in any event within 45 (forty-five) days from the date of the Mandate Letter, to complete such Initial Valuation, as defined below, (iii) an indication to follow the Independent Valuation Principles and the guidelines and criteria set forth in Exhibit I hereto, (iv) a financial adjustment methodology to calculate the Contribution Valuations as set forth in Exhibit II, and (v) in respect of an Independent Valuation of an Interest in a New Acquisition, the requirement to conduct a due diligence review (legal, tax and accounting) to be made by independent experts engaged in conjunction with the other selected First Choice Investment Bank, the cost of which shall be included in the fees to be paid to the First Choice Investment Banks. Any text removed pursuant to Telefónica, S.A.’s confidential treatment request has been separately filed with the U.S. Securities and Exchange Commission and is marked “[***]” herein.
(f) The fees charged by the First Choice Investment Banks for conducting Independent Valuations shall be paid by the Party executing the Mandate Letters, provided that:
(i) if the Company has not executed the relevant Mandate Letters, then in the case of an Independent Valuation required in terms of Section 1.6.2 below, Section 1.6.4(e)(i) below, or Section 4.3(c) of the Shareholders Agreement (as the case may be), the Company shall forthwith reimburse such Party for such fees;
(ii) if the Company has executed the relevant Mandate Letters, then in the case of an Independent Valuation required in terms of Section 7.2 below, each Group shall forthwith reimburse the Company for the fees paid to its First Choice Investment Bank, and if a Party in one of the Groups has executed the relevant Mandate Letters, the other Group shall reimburse the relevant Party in the firstmentioned Group for the fees paid to the other Group´s Group’s First Choice Investment Bank;
(iii) in the case of an Independent Valuation in terms of Section 7.3(a), if a Party in the Non-Defaulting Group has executed the relevant Mandate Letters, then the Defaulting Group shall reimburse the relevant Party in the Non-Defaulting Group, and if the Company has executed the relevant Mandate Letters, the Defaulting Group shall reimburse the Company;
(iv) in the case of an Independent Valuation required in terms of Section 5.6 of the Shareholders Agreement, if the Target Shareholder has not executed the relevant Mandate Letters, the Target Shareholder shall forthwith reimburse the Party which executed the Mandate Letters; and
(v) in the case of an Independent Valuation required in terms of Section 6.4 of the Shareholders Agreement, if a Party in the PT Group has not executed the relevant Mandate Letters, the PT Group shall forthwith reimburse the Party which executed the Mandate Letters.
(g) If applicable, the fees charged by the Third Investment Banks for conducting Independent Valuations, shall be shared by the Groups equally.
Appears in 1 contract
Selection of Investment Banks. (a) The TEF Group and the PT Group have jointly retained [***] and [***], as the first choice of Investment Banks to conduct the Independent Valuations required pursuant this Agreement or the Shareholders Agreement (each a “First Choice Investment Bank” and collectively the “First Choice Investment Banks”). For purposes of this Section it shall be considered that [***] has been appointed by the TEF Group and that [***] has been appointed by the PT Group.
(b) Save as otherwise provided in Section 1.5(b)(iv)(A) below, the selection of any investment banks different from the First Choice Investment Banks, either as a result of any conflict of interest, or default, or at the request of the TEF Group or the PT Group, shall be made pursuant to the provisions of this Section 1.4(b). In the event that an Independent Valuation is required under this Agreement or the Shareholders Agreement, the proposing Group shall deliver to the other Group and to the Company a notice requesting an Independent Valuation (“Independent Valuation Notice”) which may contain its intention to substitute one or both of the First Choice Investment Banks. Should any of the First Choice Investment Banks be requested to be replaced, the following will apply:
(i) If the Group delivering the Independent Valuation Notice has shown its intention to substitute (x) both First Choice Investment Banks or (y) the First Choice Investment Bank appointed by it, it shall include in the Independent Valuation Notice a list of three international investment banks from which the other Group shall appoint a replacement Investment Bank (the “First Group List”).
(ii) If the Independent Valuation Notice contains the intention of the delivering Group to substitute (x) both First Choice Investment Banks or (y) the First Choice Investment Bank appointed by the receiving Group, such receiving Group shall deliver, within 5 (five) Business Days from the receipt of the Independent Valuation Notice, a list of three international investment banks from which the other Group shall appoint a replacement Investment Bank (the “Second Group List”).
(iii) In any other event, even if the Independent Valuation Notice does not contain the intention of the delivering Group to substitute any or both of the First Choice Investment Banks, the receiving Group, within 5 (five) Business Days from the receipt of the Independent Valuation Notice, may submit a Second Group List (if it desires to substitute its First Choice Investment Bank) and/or require the other Group to submit a First Group List (if it desires to substitute the First Choice Investment Bank of the other Group); provided that, in this latter case, within the following 5 (five) Business Days, the Group delivering the Independent Valuation Notice shall submit to the other Group the First Group List. Any text removed pursuant to Telefónica Móviles S.A.’s confidential treatment request has been separately filed with the U.S. Securities and Exchange Commission and is marked “[***]” herein.
(iv) The First Group List and the Second Group List shall exclude any investment bank which, (x) owns, or at any time after the date hereof will have owned, a significant direct or indirect interest in the capital or (y) has, or at any time after the date hereof will have had, one or more representatives in the board of directors of any of the Groups or in the board of directors of, any of the Wireless Properties or New Acquisitions of the Group providing such list.
(v) Failure by one of the Groups to timely send the First Group List or the Second Group List shall be deemed (x) as an acceptance of any of the names contained in the list provided by the non-defaulting Group and an implied authorisation for the non-defaulting Group to select any of such names to be an Investment Bank for the purposes hereunder, or (y) if no list has been delivered by the non-defaulting Group, as an authorisation for such non-defaulting Group to elect any internationally recognised investment bank as the First Choice Investment Bank of the defaulting Group.
(vi) The Group receiving the First Group List or the Second Group List shall select one name to be its choice of Investment Bank. Such selection shall be binding on the other Group and shall be made and notified to the other Group and the Company no later than 5 (five) Business Days after the receipt of the First or the Second Group List (as the case may be). The Investment Bank chosen by one Group within the list provided by the other Group shall be considered, from time to time, the First Choice Investment Bank appointed by this latter Group.
(vii) Failure by a Group to timely select an Investment Bank from the First or the Second Group List, as applicable, shall be deemed as an acceptance of any of the investment banks contained therein and an implied authorisation for the other Group to select any of such investment banks to be an Investment Bank for the purposes hereunder. The Investment Bank shall be considered the First Choice Investment Bank appointed by the defaulting Group.
(c) No later than 15 (fifteen) Business Days from the later of the date of (i) the receipt of the Independent Valuation Notice, or (ii) if applicable, the selection of the later First Choice Investment Bank selected in accordance with Section 1.4(b) above, the Company shall take any and all actions as may be required to complete the retaining by the Company of the First Choice Investment Banks, including obtaining the necessary corporate approvals, executing the relevant mandate letters (the “Mandate Letters”) and issuing letters of instruction from time to time, and shall otherwise correspond with the First Choice Investment Banks (the PT Group and the TEF Group undertaking not to correspond with the Investment Banks). The Groups shall procure that the Company complies with its foregoing obligations.
(d) If the Company fails to execute the relevant Mandate Letters, then such Mandate Letters shall be executed and all other correspondence shall be undertaken:
(i) in the case of an Independent Valuation in terms of Section 1.6.1(d)(ii)(D) below, by a Party in the TEF Group;; Any text removed pursuant to Telefónica Móviles S.A.’s confidential treatment request has been separately filed with the U.S. Securities and Exchange Commission and is marked “[***]” herein.
(ii) in the case of the acquisition of the relevant Interest in a New Acquisition pursuant to Section 1.6.2 below, by a Party in the Group which nominated the Directors that voted in favour of the acquisition;
(iii) in the case of the acquisition of a Further Interest in a Wireless Property pursuant to Section 1.6.4(e)(i) below, by a Party in the Lead Group;
(iv) in the case of an Independent Valuation in terms of Section 7.2 below, by a Party in the Group exercising the right to gradually buy;
(v) in the case of an Independent Valuation in terms of Section 7.3(a) below, by a Party in the Non-Defaulting Group;
(vi) in the case of an Independent Valuation required in terms of Section 4.3(c) of the Shareholders Agreement, by a Party in either Group;
(vii) in the case of an Independent Valuation required in terms of Section 5.6 of the Shareholders Agreement, by a Party in the Group exercising the Put; and
(viii) in the case of an Independent Valuation required in terms of Section 6.4 of the Shareholders Agreement, by a Party in the PT Group, (in each such case, the other Group and the Company undertaking not to correspond with the First Choice Investment Banks), provided that, in the event that the Directors, nominated by the Group which has the authority pursuant to the foregoing to execute the relevant Mandate Letters, in any way prevented the execution by the Company of the relevant Mandate Letters, then a Party in such Group shall not have the authority to execute the relevant Mandate Letters and the relevant Mandate Letters shall then be executed by a Party in the other Group.
(e) Each Mandate Letter shall contain, inter alia, (i) details of the fees to be paid to the First Choice Investment Bank, which in any case should be according to market practice (ii) a requirement for the First Choice Investment Bank to commence each required Independent Valuation as soon as possible thereafter, but in any event within 45 (forty-five) days from the date of the Mandate Letter, to complete such Initial Valuation, as defined below, (iii) an indication to follow the Independent Valuation Principles and the guidelines and criteria set forth in Exhibit I hereto, (iv) a financial adjustment methodology to calculate the Contribution Valuations as set forth in Exhibit II, and (v) in respect of an Independent Valuation of an Interest in a New Acquisition, the requirement to conduct a due diligence review (legal, tax and accounting) to be made by independent experts engaged in conjunction with the other selected First Choice Investment Bank, the cost of which shall be included in the fees to be paid to the First Choice Investment Banks. Any text removed pursuant to Telefónica Móviles S.A.’s confidential treatment request has been separately filed with the U.S. Securities and Exchange Commission and is marked “[***]” herein.
(f) The fees charged by the First Choice Investment Banks for conducting Independent Valuations shall be paid by the Party executing the Mandate Letters, provided that:
(i) if the Company has not executed the relevant Mandate Letters, then in the case of an Independent Valuation required in terms of Section 1.6.2 below, Section 1.6.4(e)(i) below, or Section 4.3(c) of the Shareholders Agreement (as the case may be), the Company shall forthwith reimburse such Party for such fees;
(ii) if the Company has executed the relevant Mandate Letters, then in the case of an Independent Valuation required in terms of Section 7.2 below, each Group shall forthwith reimburse the Company for the fees paid to its First Choice Investment Bank, and if a Party in one of the Groups has executed the relevant Mandate Letters, the other Group shall reimburse the relevant Party in the firstmentioned Group for the fees paid to the other Group´s Group’s First Choice Investment Bank;
(iii) in the case of an Independent Valuation in terms of Section 7.3(a), if a Party in the Non-Defaulting Group has executed the relevant Mandate Letters, then the Defaulting Group shall reimburse the relevant Party in the Non-Defaulting Group, and if the Company has executed the relevant Mandate Letters, the Defaulting Group shall reimburse the Company;
(iv) in the case of an Independent Valuation required in terms of Section 5.6 of the Shareholders Agreement, if the Target Shareholder has not executed the relevant Mandate Letters, the Target Shareholder shall forthwith reimburse the Party which executed the Mandate Letters; and
(v) in the case of an Independent Valuation required in terms of Section 6.4 of the Shareholders Agreement, if a Party in the PT Group has not executed the relevant Mandate Letters, the PT Group shall forthwith reimburse the Party which executed the Mandate Letters.
(g) If applicable, the fees charged by the Third Investment Banks for conducting Independent Valuations, shall be shared by the Groups equally.
Appears in 1 contract
Selection of Investment Banks. (a) The TEF Group and the PT Group have jointly retained [* and *] , as the first choice of Investment Banks to conduct the Independent Valuations required pursuant this Agreement or the Shareholders Agreement (each a “"First Choice Investment Bank” " and collectively the “"First Choice Investment Banks). For purposes of this Section it shall be considered that [*] * has been appointed by the TEF Group and that [*] * has been appointed by the PT Group.
(b) Save as otherwise provided in Section 1.5(b)(iv)(A) below, the selection of any investment banks different from the First Choice Investment Banks, either as a result of any conflict of interest, or default, or at the request of the TEF Group or the PT Group, shall be made pursuant to the provisions of this Section 1.4(b). In the event that an Independent Valuation is required under this Agreement or the Shareholders Agreement, the proposing Group shall deliver to the other Group and to the Company a notice requesting an Independent Valuation (“"Independent Valuation Notice”") which may contain its intention to substitute one or both of the First Choice Investment Banks. Should any of the First Choice Investment Banks be requested to be replaced, the following will apply:
(i) If the Group delivering the Independent Valuation Notice has shown its intention to substitute (x) both First Choice Investment Banks or (y) the First Choice Investment Bank appointed by it, it shall include in the Independent Valuation Notice a list of three international investment banks from which the other Group shall appoint a replacement Investment Bank (the “"First Group List”").
(ii) If the Independent Valuation Notice contains the intention of the delivering Group to substitute (x) both First Choice Investment Banks or (y) the First Choice Investment Bank appointed by the receiving Group, such receiving Group shall deliver, within 5 (five) Business Days from the receipt of the Independent Valuation Notice, a list of three international investment banks from which the other Group shall appoint a replacement Investment Bank (the “"Second Group List”").
(iii) In any other event, even if the Independent Valuation Notice does not contain the intention of the delivering Group to substitute any or both of the First Choice Investment Banks, the receiving Group, within 5 (five) Business Days from the receipt of the Independent Valuation Notice, may submit a Second Group List (if it desires to substitute its First Choice Investment Bank) and/or require the other Group to submit a First Group List (if it desires to substitute the First Choice Investment Bank of the other Group); provided that, in this latter case, within the following 5 (five) Business Days, the Group delivering the Independent Valuation Notice shall submit to the other Group the First Group List.
(iv) The First Group List and the Second Group List shall exclude any investment bank which, (x) owns, or at any time after the date hereof will have owned, a significant direct or indirect interest in the capital or (y) has, or at any time after the date hereof will have had, one or more representatives in the board of directors of any of the Groups or in the board of directors of, any of the Wireless Properties or New Acquisitions of the Group providing such list.
(v) Failure by one of the Groups to timely send the First Group List or the Second Group List shall be deemed (x) as an acceptance of any of the names contained in the list provided by the non-defaulting Group and an implied authorisation for the non-defaulting Group to select any of such names to be an Investment Bank for the purposes hereunder, or (y) if no list has been delivered by the non-defaulting Group, as an authorisation for such non-defaulting Group to elect any internationally recognised investment bank as the First Choice Investment Bank of the defaulting Group.
(vi) The Group receiving the First Group List or the Second Group List shall select one name to be its choice of Investment Bank. Such selection shall be binding on the other Group and shall be made and notified to the other Group and the Company no later than 5 (five) Business Days after the receipt of the First or the Second Group List (as the case may be). The Investment Bank chosen by one Group within the list provided by the other Group shall be considered, from time to time, the First Choice Investment Bank appointed by this latter Group.
(vii) Failure by a Group to timely select an Investment Bank from the First or the Second Group List, as applicable, shall be deemed as an acceptance of any of the investment banks contained therein and an implied authorisation for the other Group to select any of such investment banks to be an Investment Bank for the purposes hereunder. The Investment Bank shall be considered the First Choice Investment Bank appointed by the defaulting Group.
(c) No later than 15 (fifteen) Business Days from the later of the date of (i) the receipt of the Independent Valuation Notice, or (ii) if applicable, the selection of the later First Choice Investment Bank selected in accordance with Section 1.4(b) above, the Company shall take any and all actions as may be required to complete the retaining by the Company of the First Choice Investment Banks, including obtaining the necessary corporate approvals, executing the relevant mandate letters (the “"Mandate Letters”") and issuing letters of instruction from time to time, and shall otherwise correspond with the First Choice Investment Banks (the PT Group and the TEF Group undertaking not to correspond with the Investment Banks). The Groups shall procure that the Company complies with its foregoing obligations.
(d) If the Company fails to execute the relevant Mandate Letters, then such Mandate Letters shall be executed and all other correspondence shall be undertaken:
(i) in the case of an Independent Valuation in terms of Section 1.6.1(d)(ii)(D) below, by a Party in the TEF Group;
(ii) in the case of the acquisition of the relevant Interest in a New Acquisition pursuant to Section 1.6.2 below, by a Party in the Group which nominated the Directors that voted in favour of the acquisition;
(iii) in the case of the acquisition of a Further Interest in a Wireless Property pursuant to Section 1.6.4(e)(i) below, by a Party in the Lead Group;
(iv) in the case of an Independent Valuation in terms of Section 7.2 below, by a Party in the Group exercising the right to gradually buy;
(v) in the case of an Independent Valuation in terms of Section 7.3(a) below, by a Party in the Non-Defaulting Group;
(vi) in the case of an Independent Valuation required in terms of Section 4.3(c) of the Shareholders Agreement, by a Party in either Group;
(vii) in the case of an Independent Valuation required in terms of Section 5.6 of the Shareholders Agreement, by a Party in the Group exercising the Put; and
(viii) in the case of an Independent Valuation required in terms of Section 6.4 of the Shareholders Agreement, by a Party in the PT Group, (in each such case, the other Group and the Company undertaking not to correspond with the First Choice Investment Banks), provided that, in the event that the Directors, nominated by the Group which has the authority pursuant to the foregoing to execute the relevant Mandate Letters, in any way prevented the execution by the Company of the relevant Mandate Letters, then a Party in such Group shall not have the authority to execute the relevant Mandate Letters and the relevant Mandate Letters shall then be executed by a Party in the other Group.
(e) Each Mandate Letter shall contain, inter alia, (i) details of the fees to be paid to the First Choice Investment Bank, which in any case should be according to market practice (ii) a requirement for the First Choice Investment Bank to commence each required Independent Valuation as soon as possible thereafter, but in any event within 45 (forty-five) days from the date of the Mandate Letter, to complete such Initial Valuation, as defined below, (iii) an indication to follow the Independent Valuation Principles and the guidelines and criteria set forth in Exhibit I hereto, (iv) a financial adjustment methodology to calculate the Contribution Valuations as set forth in Exhibit II, and (v) in respect of an Independent Valuation of an Interest in a New Acquisition, the requirement to conduct a due diligence review (legal, tax and accounting) to be made by independent experts engaged in conjunction with the other selected First Choice Investment Bank, the cost of which shall be included in the fees to be paid to the First Choice Investment Banks.
(f) The fees charged by the First Choice Investment Banks for conducting Independent Valuations shall be paid by the Party executing the Mandate Letters, provided that:
(i) if the Company has not executed the relevant Mandate Letters, then in the case of an Independent Valuation required in terms of Section 1.6.2 below, Section 1.6.4(e)(i) below, or Section 4.3(c) of the Shareholders Agreement (as the case may be), the Company shall forthwith reimburse such Party for such fees;
(ii) if the Company has executed the relevant Mandate Letters, then in the case of an Independent Valuation required in terms of Section 7.2 below, each Group shall forthwith reimburse the Company for the fees paid to its First Choice Investment Bank, and if a Party in one of the Groups has executed the relevant Mandate Letters, the other Group shall reimburse the relevant Party in the firstmentioned Group for the fees paid to the other Group´s Group?s First Choice Investment Bank;
(iii) in the case of an Independent Valuation in terms of Section 7.3(a), if a Party in the Non-Defaulting Group has executed the relevant Mandate Letters, then the Defaulting Group shall reimburse the relevant Party in the Non-Defaulting Group, and if the Company has executed the relevant Mandate Letters, the Defaulting Group shall reimburse the Company;
(iv) in the case of an Independent Valuation required in terms of Section 5.6 of the Shareholders Agreement, if the Target Shareholder has not executed the relevant Mandate Letters, the Target Shareholder shall forthwith reimburse the Party which executed the Mandate Letters; and
(v) in the case of an Independent Valuation required in terms of Section 6.4 of the Shareholders Agreement, if a Party in the PT Group has not executed the relevant Mandate Letters, the PT Group shall forthwith reimburse the Party which executed the Mandate Letters.
(g) If applicable, the fees charged by the Third Investment Banks for conducting Independent Valuations, shall be shared by the Groups equally.
Appears in 1 contract
