November 8, 2001
SHAREHOLDERS SUPPORT DEED
among
SONERA 3G HOLDING B.V.
SONERA CORPORATION
(joint and severally referred to as "the Shareholder")
and
TELEFONICA MOVILES INTERCONTINENTAL, S.A. (the "Lender")
and
GROUP 3G UMTS HOLDING GMBH (the "Borrower")
WHEREAS
1. The Borrower and the Lender are or will be parties to various loan
agreements (the "Loan Agreements") entered or to be entered by [______]
It is acknowledged and agreed among the Parties that, by 31st December
2006, the outstanding amount under the Loan Agreements will not be
higher than EURO 2,500 Million, provided that third parties loans are
provided to the Borrower (and/or its subsidiaries) and no further
funding needs are required above the above referred amount.
2. The Shareholder is not obliged to participate in any funding (in
addition to the payment of the UMTS License fee).
3. The Lender will make certain loan facilities available to the Borrower
pursuant to the terms of the respective Loan Agreements ("The
Facility/ies"). The terms and conditions of the Loan Agreements shall
be at arm's length basis.
The Lender and the Shareholder, subject to the terms and conditions of
this Agreement, agree that (i) the Lender may convert from time to time
the funds provided under the Loan Agreements into equity, applying the
Fair Market Value of the Borrower as defined in section 1.3 (B) (i)
below. For these purposes, the Shareholder agrees to vote in the
relevant Borrower's shareholders meetings in the sense to approve such
a capitalisation, waiving its pre-emptive rights regarding the
proportional subscription of the new share/s issued (if any).
4. It is a condition precedent to the obligations of the Lender to make
disbursements pursuant to the Loan Agreements that this Agreement is
entered into by the parties.
NOW THEREFORE, in consideration of the premises and in order to induce the
Lender to make the Loan, and for other good and valuable considerations, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE 1. LOANS CONVERSION AND SHAREHOLDERS' CHANGE OF CONTROL
1.1 The Lender may from time to time convert any or all amounts outstanding
under the Loan Agreements (including principal and accrued interests)
into equity, applying the Fair market Value of the Borrower as
appraised by an independent expert and being reduced by the outstanding
indebtedness (including Shareholders' loans - principal and accrued
interests).
1.2. The Lender agrees that the conversion will be done in adequately large
portions in a minimum amount of Euro 50 Million.
1.3 Within the period of the Loan Agreements, as stated in each of them, if
the Borrower determines that a change of control has occurred in
relation to the Shareholder, it shall notify immediately to the Lender
and the affected Shareholder of such a event (the "Deficiency" and the
"Deficiency Notice", respectively).
If the Shareholder notifies the Lender its decision to exercise its put
option (the "Put Option") during the period which is in accordance with
the Shareholders Agreement, the Put Option price shall be determined in
the
following manner taking the financing (including principal and accrued
interests) given by the Lender (direct or indirectly), outstanding at
that time, into consideration as follows:
(i) First, the Fair Market value of the Borrower ("Enterprise
Value"), as appraised by an independent valuation as described
in the Shareholders Agreement, shall be reduced by the
outstanding indebtedness (including shareholders' loans --
principal and accrued interests) of the Borrower, resulting
into the Net Equity of the Borrower.
(ii) The Shareholder's put option value shall be calculated by
multiplying the Net Equity of the Borrower by the
Shareholder's shareholding percentage at the time of exercise.
(iii) If the Borrower's Net Equity value is below zero, the
Shareholder will transfer its shareholding interest in the
Borrower to the Lender at zero value with no further
liabilities.
1.4 For the purposes of this Agreement, a change of control occurs when a
change event takes place in respect of the Shareholder or its Ultimate
Parent Company, (i) where the person acquiring control following such
Change Event already holds an UMTS and/or GSM licence in Germany and
will maintain such licence after the Change Event; and (ii) RegTP
official and expressly informs or recommends (in written) the Borrower
or the Licensee that the Shareholder should cease to be a Shareholder
or a member of its Group should cease to be a member of its Group.
For the purposes of this clause, a Change Event (as contemplated in the
Shareholders' Agreement) shall occur where:
(i) a person acquires control of the Shareholder where no person
previously had control of that Shareholder; or
(ii) the Ultimate Parent Company of the Shareholder ceases to have
control of that Shareholder; or
(iii) a person acquires control of the Ultimate Parent Company of the
Shareholder; or
(iv) a person who is not under the control of the Ultimate Parent
Company of the Shareholder acquires control of that Shareholder; or
(v) the Shareholder or the Ultimate Parent Company of the Shareholder
merges with any company or other entity (other than with another
Xxxxxxxx's shareholder or member of its Group) and, as a result of such
merger, the Shareholder or Ultimate Parent Company (as the case may be)
lose its control;
in each case where the person who becomes in control, or in case of
subsection (v) the other company or entity, is a direct competitor of
the other Borrower's shareholder/s, the Borrower and/or any of its
affiliates (the Licensee and its subsidiaries).
1.5.- The Shareholder agrees with the Lender that it shall promptly, but in
any case no later than 10 days after the receipt of the Deficiency
Notice, notify the Lender in writing, with a copy to the Borrower, of
its election to exercise the Put Option.
1.6.- Nothing contained in herein shall restrict the Shareholder from making,
at any time, whether or not a Deficiency exists or a Deficiency Notice
has been issued, additional funding in accordance with what has been
approved by the Advisory Board, either by way of debt or equity (or any
combination thereof).
ARTICLE 2. ACTION BY THE BORROWER AND THE SHAREHOLDER
The Borrower and the Shareholder each shall take all action as may be necessary
or as the Lender may reasonably request, including the exercise of its voting
rights and obtaining all required authorisations, in order to comply with its
obligations under this Agreement.
The Shareholder agrees not to take any action which may impair the ability of
the Borrower or any member of its group, to observe and perform all its
obligations under each document to which the Borrower is party.
Furthermore, the Shareholder undertakes exclusively for itself that it and its
affiliates shall vote its or their shares in the Borrower, as well as any shares
in the Borrower that the Shareholder or its affiliates may acquire or own in the
future, in such manner and take (or cause to be taken) any and all actions and
concur (or cause to be concurred) in any and all actions (corporate or
otherwise) so as to achieve a prompt and effective implementation of the
provisions of this Agreement.
ARTICLE 3. NATURE OF OBLIGATIONS
The obligations of Sonera 3G Holding B.V. and Sonera Corporation (as
Shareholder) under this Agreement are joint and several.
ARTICLE 4. SUBORDINATION
The Shareholder and the Borrower agree in favour of the Lender, who so accepts,
that any amounts related to interest, principal and any other amounts due under
this Agreement (whether on the contractual due dates, as a result of
acceleration or otherwise) shall be fully paid and performed in priority,
seniority and preference to any other subordinated sums.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
The Borrower and the Shareholder each hereby represent and warrant exclusively
for itself that:
(a) it is a corporation or partnership duly organised and validly existing
under the laws of its jurisdiction of incorporation or partnership, as
the case may be, has the corporate or other power and authority, and
all necessary corporate and other action has been taken, to conduct its
business as presently conducted and to execute and deliver this
Agreement and to perform fully and completely all its obligations and
liabilities hereunder;
(b) this Agreement has been duly authorised, executed and delivered by it
and constitutes its valid and legally binding obligation, enforceable
against it in accordance with its terms;
(c) as at the date of thisAgreement, the Shareholder owns, directly or
indirectly, an unencumbered beneficial interest in the percentage of
the Borrower's share capital corresponding to a percentage of 42,8%.
ARTICLE 6. NOTICES
Any notice, request of any other communication to be given or made under this
Agreement shall be in writing and may be delivered by hand, airmail, facsimile,
registered mail or established courier service to the party's address specified
below or at such other address as such party notifies to the other party from
time to time and will be effective
upon receipt or, in case of delivery by hand or by established courier
service, upon refusal to accept delivery.
For the Borrower:
For the Shareholder:
For the Lender:
ARTICLE 7. APPLICABLE LAW
This Agreement is governed by English law.
ARTICLE 8. DISPUTE RESOLUTION
The parties agree that any dispute arising out of or in connection with this
Agreement(including any question regarding the existence, validity or
termination of this Agreement) shall be referred and finally solved by
arbitration under the Rules of the International Chamber of Commerce. The
tribunal shall consist of a sole arbitrator agreed among the parties. If such
an agreement cannot be reached within a period of five (5) days from the
Lender requiring the dispute, a sole arbitrator is appointed in accordance
with those Rules. The place of any such arbitration shall be London and the
language shall be English. The arbitrator's resolution shall be binding for
the parties.
ARTICLE 9. MISCELLANEOUS
9.1. Termination
This Agreement shall be in place until the total repayment of all and
any amounts due under the Loan Agreements to the Lender, in accordance
with the terms and conditions of the Loan Agreements or on 31st
December 2006, the earlier.
9.2. Severability
If a provision of this Agreement is or becomes illegal, invalid or
unenforceable, that shall not affect the validity or enforceability or
any other provision of this Agreement.
9.3. Counterparts
This Agreement may be executed in a number of counterparts, all of
which taken together shall constitute one and the same instrument.
9.4. Language
All communications and documents required under this Agreement shall be
in English.
9.5. Default interest
Without limiting the remedies available to the Lender under this Agreement or
otherwise, if the Shareholder fails to make any payment when due as specified
in this Agreement, the Shareholder shall pay to the Borrower interest on the
amount of such a payment due and unpaid at the rate of eight (8) per cent.,
and shall be payable on demand.
IN WITNESS WHEREOF, this Agreement has been executed as a deed by the parties
hereto and is intended to be and is hereby delivered on the day and year
first written above.
