EXHIBIT 10.90
THIRD STOCK OPTION AGREEMENT
THIS THIRD STOCK OPTION AGREEMENT (this "Agreement"), made as of
October 18, 1996, by and between Hungarian Telephone and Cable Corp., a Delaware
corporation (the "Company"), and CU CapitalCorp., a Delaware corporation
("CUCC").
W I T N E S S E T H
WHEREAS, CUCC or an affiliate thereof has furnished or has agreed to
furnish additional financial support to the Company and/or its subsidiaries,
including through the issuance to Citicorp North America, Inc. ("CNA") of a
letter of comfort and a letter indemnifying CNA against all events of political,
currency exchange and other cross-border risks in connection with a $75 million
Secured Term Loan Credit Facility for the Company from CNA, the issuance to
Postabank Rt. of a letter of support in connection with a $170 million Credit
Facility for the Hungarian subsidiaries of the Company from Postabank, and the
provision of assurance to CNA of the repayment by the Company of any and all
amounts owed to CNA by October 15, 1996 in connection with the CNA Credit
Facility;
WHEREAS, CUCC or an affiliate thereof has negotiated the extension of a
$750,000 contingent commitment fee payable by the Company to CNA in connection
with the CNA Credit Facility and a $2,000,000 interest credit payable to a
subsidiary of the Company by Postabank in connection with the Postabank Credit
Facility;
WHEREAS, CUCC has insisted, as compensation for providing such
additional financial support to the Company and its subsidiaries and for
obtaining such financial benefits for the Company and its subsidiaries, that the
Company (i) extend the exercise periods of the Warrant, the Two-Year Option, the
Three- Year Option and the Four-Year Option to coincide with the exercise period
of the Five-Year Option (as such terms are defined in the Stock Option Agreement
between the parties dated May 31, 1995, as amended (the "First Stock Option
Agreement")), (ii) grant to CUCC the option to purchase an additional 875,850
shares of Common Stock at an exercise price of $12.75, exercisable at any time
through September 12, 2000, and (iii) pay to CUCC $750,000;
WHEREAS, the Company believes that the receipt of such additional
financial support from CUCC and the receipt of the financial benefits arising
from CUCC's negotiations with CNA and Postabank was and would be in the best
interests of all stockholders of the Company and, therefore, in order to
compensate CUCC for obtaining such financial benefits for the Company and its
subsidiaries and for providing such additional financial support in connection
with the CNA Credit Facility, and to induce CUCC to proceed to provide such
additional financial
-2-
support in connection with the Postabank Credit Facility, the Company is willing
(i) concurrently with the execution of this Agreement, to amend each of the
Warrant and the First Stock Option Agreement to extend the exercise periods of
the Warrant, the Two-Year Option, the Three-Year Option and the Four-Year Option
to coincide with the exercise period of the Five-Year Option, (ii) to enter into
this Agreement to grant to CUCC the option to purchase 875,850 additional shares
of Common Stock, and (iii) to pay CUCC $750,000; and
WHEREAS, the Company now desires to grant CUCC irrevocable options to
purchase authorized but unissued shares of Common Stock of the Company, which
stock options currently would amount to 875,850 shares of Common Stock, on the
terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the premises, and intending to be
legally bound hereby, the parties hereby agree as follows:
1. Grant of Additional Stock Options.
(a) The Company hereby grants to CUCC the irrevocable option (the
"Option") to purchase 875,850 shares of Common Stock (the "Option Shares") at an
initial purchase price of $12.75 per share (subject to adjustment), payable
either in cash or in exchange for evidences of indebtedness of the Company to
CUCC, directly or through a subsidiary thereof, in an aggregate outstanding
amount equal to the aggregate purchase price for such portion or all of the
Option then being exercised. The Option may be exercised at any time and from
time to time from the date hereof through September 12, 2000. Exercise of the
Option may be in whole (at one time or in multiple parts aggregating the whole)
or in part and shall be effectuated by delivering written notice of such
exercise to the Company at any time and from time to time during such exercise
period. Any and each such notice of exercise shall set forth the number of
Option Shares to be acquired, the closing date, and the time and place of the
closing.
(b) The Company hereby acknowledges and agrees with CUCC that the
Option Shares acquired by CUCC pursuant to exercise of the Option are and shall
be "Registrable Securities," as such term is defined in that certain
Registration Agreement dated as of May 31, 1995, by and between the Company and
CUCC (the "Registration Agreement"), and the terms and conditions of the
Registration Agreement shall apply to such Option Shares.
2. Closing Date. The closing date with respect to the
purchase of any of the Option Shares (the "Closing Date") shall
be not less than three nor more than ten days after the date any
notice of exercise with respect to the Option is given unless a
-3-
waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 0000
(xxx "XXX Xxx"), if applicable, has not expired and/or all necessary approvals,
if any, applicable to such exercise of the Option pursuant to such exercise
notice have not been obtained, in which case the Closing Date shall be not more
than ten days after the last to occur of such waiting period expiration or the
obtaining of the last such approval. In addition, in the event that, after any
notice of exercise with respect to the Option is given, any preliminary or
permanent injunction or other order by any court of competent jurisdiction
prohibiting or otherwise restraining such exercise of the Option is entered, the
Closing Date shall be extended until ten days after the date such order is
dissolved or otherwise ceases to be in effect. On the Closing Date, the
aggregate purchase price for the Option Shares that are the subject of the
exercise notice shall be delivered to the Company and the Company shall issue
and deliver one or more certificates evidencing such Option Shares, and
registered in such manner as the holder of the Option shall direct.
3. Changes in the Option Shares; Anti-Dilution Provisions;
Purchase Price Reset.
(a) For all purposes of this Agreement, the Option Shares shall mean
the Option Shares as if presently outstanding and all securities or other
consideration issued or exchanged with respect to the Option Shares on any
recapitalization, reclassification, merger, consolidation, share exchange,
spin-off, partial or complete liquidation, stock dividend, split-up or
combination of the securities of the Company or any other change in its capital
structure.
(b) Anti-Dilution Provisions. The respective purchase price per Option
Share from time to time in effect under this Agreement, and the number and
character of HTCC securities covered hereby, shall be subject to adjustment from
time to time in certain instances hereinafter set forth. The term "Purchase
Price" shall mean the initial purchase price per share for the Option originally
set forth in this Agreement or any price resulting from adjustments pursuant to
the terms hereof. The number of Option Shares purchasable upon the exercise of
the Option and the Purchase Price shall be subject to adjustment as follows:
(i) In case the Company shall at any time after the date of
execution of this Agreement (A) declare or pay a dividend in shares of
Common Stock or make a distribution in shares of Common Stock to
holders of Common Stock, (B) subdivide its outstanding shares of Common
Stock, (C) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock, or (D) issue any shares of
its capital stock in a reclassification of the
-4-
Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing entity),
the number of Option Shares purchasable upon exercise of the Option
immediately prior thereto shall be adjusted so that the holder of the
Option shall be entitled to receive the kind and number of Option
Shares or other securities of the Company which he would have owned or
have been entitled to receive after the happening of any of the events
described above, had the Option been exercised immediately prior to the
happening of such event or any record date with respect thereto. An
adjustment made pursuant to this paragraph (i) shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(ii) In case the Company shall issue rights, options or
warrants to all holders of its outstanding Common Stock entitling them
(for a period of within 45 days after the record date mentioned below)
to subscribe for or purchase shares of Common Stock at a price per
share which is lower at the record date mentioned below than the Base
Value per share of Common Stock (as defined in paragraph (v) below),
the number of Option Shares then purchasable upon exercise of the
Option shall be determined by multiplying the number of Option Shares
then purchasable upon exercise of the Option by a fraction, of which
the numerator shall be the number of shares of Common Stock outstanding
on the date of issuance of such rights, options or warrants plus the
number of additional shares of Common Stock offered for subscription or
purchase, and of which the denominator shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights,
options or warrants plus the number of shares which the aggregate
offering price of the total number of shares of Common Stock so offered
would purchase at the Base Value per share of Common Stock at such
record date. Such adjustment shall be made whenever such rights,
options or warrants are issued, and shall become effective immediately
after the record date for the determination of stockholders entitled to
receive such rights, options or warrants.
(iii) In case the Company shall distribute to all holders of
its shares of Common Stock evidences of its indebtedness or
assets (including cash dividends or other distributions in an
amount in excess of 25% of consolidated earnings or earned
surplus legally available for payment of dividends at the time
of the declaration of any such dividend or distribution
payable out of consolidated earnings or earned surplus, but
excluding dividends or distributions payable in stock for
which adjustment is made pursuant to paragraph (i) above or in
the paragraph immediately
-5-
following this paragraph) or rights, options or warrants, or
convertible or exchangeable securities containing the right to
subscribe for or purchase shares of Common Stock (excluding
those referred to in paragraph (ii) above), then in each case
the number of Option Shares thereafter purchasable upon the
exercise of the Option shall be determined by multiplying the
number of Option Shares theretofore purchasable upon the
exercise of the Option by a fraction, of which the numerator
shall be the then current market price per share of Common
Stock (as defined in paragraph (v) below) on the last trading
date preceding the ex- dividend date with respect to such
distribution, and of which the denominator shall be such
market price per share of Common Stock less then fair value
(as reasonably determined by the Board of Directors of the
Company in good faith, whose determination shall be
conclusive) of the portion of the assets or evidences of
indebtedness so distributed or of such subscription rights,
options or warrants, or of such convertible or exchangeable
securities applicable to one share of Common Stock. Such
adjustment shall be made whenever any such distribution is
made, and shall become effective on the date of distribution
retroactive to the record date for the determination of
shareholders entitled to receive such distribution.
In the event of a distribution by the Company to all holders
of its shares of Common Stock of stock of a subsidiary or securities
convertible into or exercisable for such stock, then in lieu of an
adjustment in the number of Option Shares purchasable upon the exercise
of the Option, the holder of the Option, upon the exercise thereof at
any time after such distribution, shall be entitled to receive from the
Company, such subsidiary or both, as the Company shall reasonably
determine, the stock or other securities to which such holder would
have been entitled if such holder had exercised the Option immediately
prior thereto, all subject to further adjustment as provided in this
subsection (b); provided, however, that no adjustment in respect of
dividends or interest on such stock or other securities shall be made
during the term of the Option or upon the exercise of the Option other
than an adjustment which would be required pursuant to this Agreement.
(iv) In case the Company shall issue shares of Common Stock or
rights, options or warrants containing the right to subscribe for or
purchase shares of Common Stock or securities convertible into Common
Stock (including amendments and modifications to the price, nature or
number of any existing rights, options or warrants containing the right
to subscribe for or purchase shares of Common Stock or
-6-
securities convertible into Common Stock other than due to reset,
anti-dilution or adjustment rights presently contained therein, and
excluding (A) shares, rights, options, warrants or convertible
securities issued in any of the transactions described in paragraphs
(i), (ii) or (iii) above, (B) shares of Common Stock issued upon any
exercise of any options or warrants to purchase shares of Common Stock
granted to CUCC or any affiliate thereof or (C) securities issued in
exchange for or on exercise or conversion of any rights, options or
warrants described in this paragraph (iv)) for a price per share of
Common Stock, in the case of the issuance of Common Stock, or for the
price per share of Common Stock initially deliverable upon conversion
or exchange of such securities, less than the Base Value per share of
Common Stock (as defined in paragraph (v) below) on the date the
Company fixed the offering, conversion or exchange price of such
additional shares, the number of Option Shares thereafter purchasable
upon the exercise of the Option shall be determined by multiplying the
number of Option Shares theretofore purchasable upon exercise of the
Option by a fraction, of which the numerator shall be the number of
shares of Common Stock so outstanding on such date plus the aggregate
number of shares of Common Stock so issued or offered for subscription
or purchase, and of which the denominator shall be the number of shares
of Common Stock outstanding on such date plus the number of shares
which the aggregate offering price of the total number of shares of
Common Stock so issued or offered would purchase at the Base Value per
share of Common Stock at such record date. Such adjustment shall be
made whenever such shares, rights, options, or warrants are issued or
so amended or modified, and shall become effective immediately after
the effective date of such event retroactive to the record date, if
any, for such event.
(v) For the purpose of any computation under paragraphs (ii),
(iii) and (iv) of this subsection (b), "Base Value per share of Common
Stock" at any date means the greater of (A) the current market price
per share of Common Stock on such date (computed as described below) or
(B) the Purchase Price in effect on such date. The current market price
per share of Common Stock at any date shall be the average of the daily
closing prices for 20 consecutive trading days commencing 30 trading
days before the date of such computation. The closing price for each
day shall be the last such reported sales price regular way or, in case
no such reported sale takes place on such day, the average of the
closing bid and asked prices regular way for such day, in each case on
the principal national securities exchange or in the NASDAQ/NMS to
which the shares of Common Stock are listed or admitted to trading or,
if not listed or admitted to trading, the average of the closing bid
and
-7-
asked prices of the Common Stock quoted on NASDAQ/NMS or any comparable
system. In the absence of one or more such quotations, the Company
shall determine the current market price on the basis of such
quotations as it considers reasonably appropriate.
(vi) No adjustment in the number of Option Shares purchasable
hereunder shall be required unless such adjustment would result in an
increase or decrease of at least one percent of the Purchase Price;
provided, however, that any adjustments which by reason of this
paragraph (vi) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations shall
be made to the nearest cent or to the nearest one-thousandth of a
share, as the case may be.
(vii) Whenever the number of Option Shares purchasable upon
the exercise of the Option is adjusted, as herein provided, the
Purchase Price payable upon exercise of each the Option shall be
adjusted by multiplying the appropriate Purchase Price immediately
prior to such adjustment by a fraction, of which the numerator shall be
the number of Option Shares purchasable upon the exercise of the
applicable the Option immediately prior to such adjustment, and of
which the denominator shall be the number of such Option Shares
purchasable thereunder immediately thereafter.
(viii) No adjustment in the number of Option Shares
purchasable upon the exercise of the Option need be made under
paragraphs (ii), (iii) or (iv) of this subsection (b) if the Company
issues or distributes to the holder of the Option the shares, rights,
options, warrants, or convertible or exchangeable securities, or the
evidences of indebtedness or assets referred to in those paragraphs
which the holder of the Option would have been entitled to receive had
the Option been exercised prior to the happening of such event or the
record date with respect thereto. No adjustment in the number of Option
Shares purchasable upon the exercise of the Option need be made for
sales or issuances of Common Stock or rights, options or warrants to
purchase Common Stock pursuant to (A) a Company plan for Company
shareholders generally for reinvestment of dividends, (B) rights,
options or warrants, or convertible or exchangeable securities or
agreements to issue rights, options or warrants or convertible or
exchangeable securities, outstanding on the date hereof and not
subsequently modified or amended in any manner that would otherwise
cause the number of Option Shares to be adjusted hereunder, or (C)
options for the purchase of Common Stock granted by the Company from
time to time pursuant to its employee stock option plans approved by
Company stockholders, with such
-8-
number of shares subject to adjustment as provided in the
plans.
(ix) For the purpose of this subsection (b), the term "shares
of Common Stock" shall mean (A) the class of stock designated as the
Common Stock of the Company at the date hereof, or (B) any other
class(es) of stock resulting from successive changes or
reclassifications of such shares consisting solely of changes in par
value, or from par value to no par value, or from no par value to par
value. In the event that at any time, as a result of an adjustment made
pursuant to paragraph (i) above, the holder hereof shall become
entitled to purchase any securities of the Company other than shares of
Common Stock, thereafter the number of such other shares so purchasable
upon exercise of the Option and the Purchase Price of such shares shall
be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the
Option Shares contained in paragraphs (i) through (viii), inclusive,
above, and to the extent appropriate the other provisions of this
Agreement that are applicable, with respect to the Option Shares, shall
apply on like terms to any such other securities.
(x) Upon the expiration of any rights, options, warrants or
conversion or exchange privileges, if any thereof shall not have been
exercised, the Purchase Price and the number of shares of Common Stock
purchasable upon the exercise of the Option shall, upon such
expiration, be readjusted and shall thereafter be such as they would
have been had they been originally adjusted (or had the original
adjustment not been required, as the case may be) as if (A) the only
shares of Common Stock so issued were the shares of Common Stock, if
any, actually issued or sold upon the exercise of such rights, options,
warrants or conversion or exchange privileges and (B) such shares of
Common Stock, if any, were issued or sold for the consideration
actually received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for the
issuance, sale or grant of all such rights, options, warrants or
conversion or exchange privileges whether or not exercised; provided,
however, that no such readjustment shall have the effect of increasing
the Purchase Price or decreasing the number of shares of Common Stock
purchasable upon the exercise of the Option by an amount in excess of
the amount of the adjustment initially made in respect to the issuance,
sale or grant of such rights, options, warrants or conversion or
exchange privilege.
(c) Rights Upon Certain Corporate Transactions. If,
prior to the expiration of the Option by exercise or by its
-9-
terms, the Company shall be recapitalized by reclassifying its outstanding
Common Stock into shares with a different par value or by changing its
outstanding Common Stock with par value to shares without par value, or the
Company or a successor corporation shall consolidate or merge with or convey all
or substantially all of its or of any successor corporation's property and
assets to any other corporation or corporations, or the Company or a successor
corporation or corporations shall distribute Common Stock or other assets
pursuant to, without limitation, any spin-off, split-off, or other distribution
of assets, the holder of the Option shall thereafter have the right to purchase,
upon the basis and on the terms and conditions and during the time specified in
this Agreement, in lieu of the Common Stock of the Company theretofore
purchasable upon the exercise of the Option, such shares, securities or assets
as may be issued or payable with respect to, or in exchange for, the number of
share of Common Stock of the Company theretofore purchasable upon the exercise
of the Option had the Option been exercised immediately prior to such
recapitalization, consolidation, merger, conveyance or distribution.
(d) Rights Upon Liquidation. If, at any time while the Option
shall remain unexpired and unexercised, the Company shall dissolve, liquidate or
wind up its affairs, the holder of the Option may in connection with such event
receive, upon exercise hereof, in lieu of each share of Common Stock of the
Company which it would have been entitled to receive the same kind and amount of
any securities or assets as may be issuable, distributable or payable upon any
such dissolution, liquidation or winding up with respect to each share of Common
Stock of the Company.
(e) Notice of Changes. In the event (i) the Company shall
issue any shares of Common Stock, options or rights to subscribe for shares of
Common Stock, or any securities convertible into or exchangeable for shares of
Common Stock, or adjust or reset the conversion price of any such options,
rights or convertible securities, or the nature or number thereof, other than
pursuant to the terms thereof as in effect on the date of this Agreement, (ii)
the Company shall take a record of the holders of its Common Stock for the
purpose of entitling them to receive a dividend payable otherwise than in cash
or any other distribution in respect of the Common Stock pursuant to, without
limitation, any spin-off, split-off, or distribution of the Company's assets,
(iii) the Company shall take a record of the holders of its Common Stock for the
purpose of entitling them to subscribe for or purchase any shares of any class
or to receive any other rights, (iv) of any classification, reclassification or
other reorganization or recapitalization of the shares which the Company is
authorized to issue, consolidation or merger of the Company with or into another
corporation, or conveyance of all or substantially all of the assets of the
Company, or (v) of the
-10-
voluntary or involuntary dissolution, liquidation or winding up of the Company;
then, and in such event, the Company shall mail to the holder of the Option a
notice, at least ten (10) days prior to the record date for, or if no record
date, then at least thirty (30) days prior to the date or expected date on which
such event is to take place, stating the nature and relevant dates for such
event, including the date or expected date, if any is to be fixed, as of which
holders of Common Stock of record shall be entitled to exchange their Common
Stock for securities or other property deliverable upon, and a description of,
such reclassification/reorganization, consolidation, merger, conveyance,
dissolution, liquidation or winding up, as the case may be.
(f) Reduction of Purchase Price Below Par Value. As a
condition precedent to the taking of any action which would cause
an adjustment reducing the Purchase Price below then par value of
the shares of Common Stock issuable upon exercise hereof, the
Company will take such corporation action as may be necessary in
order that it may validly and legally issue fully paid and
nonassessable shares of such Common Stock at such adjusted
Purchase Price.
4. Representations and Warranties of the Company. The
Company represents to CUCC as follows:
(a) The Company has the full power and authority to execute,
deliver and carry out the terms and provisions of this Agreement and to
consummate the transactions contemplated here. The execution, delivery and
performance of this Agreement and the granting of the Option have been approved
by all requisite corporate action on the part of the Company, and no further
action is necessary to authorize such acts.
(b) This Agreement has been duly and validly executed and
delivered by the Company, and constitutes a valid and binding obligation of the
Company, enforceable in accordance with its terms;
(c) The authorized capital stock of the Company consists of
(i) 25,000,000 shares of Common Stock of which, as of the date hereof, 4,171,626
are issued and outstanding and 4,742,540 shares are reserved for issuance upon
the exercise of currently outstanding rights, warrants and options to purchase
shares of Common Stock and the conversion of currently outstanding securities
convertible into shares of Common Stock other than the Option, and (ii)
5,000,000 shares of Preferred Stock, none of which are outstanding or reserved
for issuance. There exist no liens, claims, options, preemptive rights, proxies,
voting agreements, charges or encumbrances of whatever nature affecting the
Option Shares other than as provided in this Agreement;
-11-
(d) The execution and delivery of this Agreement and the
performance of this Agreement by the Company will not (i) require the consent,
waiver, approval, license or authorization of or any filing with any person or
governmental authority (other than pursuant to the HSR Act), (ii) violate the
certificate of incorporation, by-laws, or other organizational documents of the
Company, (iii) with or without the giving of notice or the lapse of time or
both, conflict with or result in a breach of any terms or provisions of, or
constitute a default or give rise to a right of acceleration under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of Company under any indenture, mortgage, agreement, note or other
instrument to which the Company is a party or by which its property is bound or
(iv) violate any existing applicable law, rule, regulation, judgment, order or
decree of any governmental authority or court having jurisdiction over Company
or any of its property;
(e) Upon issuance by the Company of the Option Shares in
accordance herewith, such shares of Common Stock will be duly and validly
issued, fully paid and nonassessable and the holder of such Option Shares will
have good title to such Option Shares, free and clear of all liens, claims,
options, preemptive rights, proxies, voting agreements, charges or encumbrances
of whatever nature affecting such Option Shares; and
(f) There exists no restriction on the Company's issuance and
delivery of the Option Shares, nor is the Company required to obtain the
approval of any person or governmental authority (other than to the extent
required under the HSR Act) to effect the sale of the any of the Option Shares.
5. Covenants of the Company. The Company covenants with
CUCC that, during the term of this Agreement:
(a) The Company will cooperate with the holder of the
Option in obtaining any regulatory or governmental approvals
necessary in order to exercise the Option;
(b) The Company shall reserve and keep available from its
authorized but unissued shares of its Common Stock or other capital stock as may
be the subject of the Option such number of shares thereof as are issuable upon
exercise of the Option, and shall not issue any such shares, or make any
agreement, commitment or arrangement to issue any such shares, or issue any
option, warrant or other security exercisable for or convertible into any such
shares, other than the Option; and
(c) No fractional shares of Common Stock will be issued in
connection with any purchase hereunder but in lieu of such fractional shares,
the Company shall make a cash refund therefor equal in amount to the product of
the applicable
-12-
fraction multiplied by the Purchase Price then in effect and applicable to the
Option Shares being purchased.
6. Term. This Agreement shall be and remain in effect from
the date hereof until September 12, 2001.
7. Miscellaneous. Any shares of Common Stock purchased by the holder of
the Option pursuant to this Agreement will be acquired for investment only and
not with a view to any public distribution thereof, and such person will not
offer, sell or otherwise dispose of such shares so acquired by it in violation
of the registration requirements of the Securities Act of 1933, as amended, or
any applicable state securities laws.
8. Notices. Any notice, request, instruction or other document to be
given hereunder by any party to the others shall be in writing and shall be
deemed to have been duly given on the next business day after the same is sent,
if delivered personally or sent by telecopy or overnight delivery, or five
calendar days after the same is sent, if sent by registered or certified mail,
return receipt requested, postage prepaid, as set forth below, or to such other
persons or addresses as may be designated in writing in accordance with the
terms hereof by the party to receive such notice.
(a) If to CUCC, to:
CU CapitalCorp.
c/o Citizens Utilities Company
Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile No.: 203/329-4651
Attn: General Counsel
with a required copy to:
Xxxxxxxxxx and Xxxxx, L.L.P.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile No.: 202/745-0916
Attn: Xxxxxx X. Xxxxxx
(b) If to the Company, to:
Hungary Telephone and Cable Corp.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Facsimile No.: 203/348-0128
Attention: General Counsel
9. Specific Enforcement. The Company acknowledges that the
holder of the Option would be irrevocably damaged in the event
that any of the provisions of this Agreement were not performed
by the Company in accordance with their specific terms or were
-13-
otherwise breached. It is accordingly agreed that the holder of the Option shall
be entitled to an injunction or injunctions to prevent breaches of this
Agreement and specifically to enforce this Agreement and the terms and
provisions thereof in addition to any other remedy to which the holder of the
Option may be entitled at law or in equity.
10. Expenses. Except as otherwise provided herein, all fees and
expenses incurred by the Company, and all sales, transfer or other similar taxes
payable in connection with this Agreement (including, but not limited to, any
transfer taxes payable in connection with the sale of the Option Shares), will
be borne by the Company, and all fees and expenses incurred by CUCC in
connection with this Agreement will be borne by CUCC.
11. Brokerage. CUCC and the Company each represents and warrants to the
other that neither it nor any of its affiliates has entered into or will enter
into any contract, agreement, arrangement or understanding with any person or
firm which will result in the obligation of the other to pay any finder's fee,
brokerage commission or similar payment in connection with this Agreement, the
Option or the transaction contemplated hereby. CUCC and the Company each agrees
to indemnify and hold the other harmless from and against any and all claims or
liabilities for finder's fees, brokerage commissions or similar payments
incurred by reason of any action taken by it or its affiliates.
12. Counterparts. This Agreement may be executed in one or
more counterparts, and each of such counterparts shall for all
purposes be deemed to be an original, but all such counterparts
together shall constitute but one instrument.
13. Assignment. No party hereto shall assign its rights and obligations
under this Agreement or any part thereof, nor shall any party assign or delegate
any of its rights or duties hereunder without the prior written consent of the
other party, and any assignment made without such consent shall be void;
provided, that the rights and obligations of CUCC hereunder may be assigned to
and assumed by a subsidiary of CUCC. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
14. Governing Law; Forum; Consent to Jurisdiction. This Agreement shall
be governed by and construed in accordance with the laws of the State of
Delaware without giving effect to the principles of conflict of laws thereof.
Each of the parties to this Agreement hereby irrevocably and unconditionally (i)
consent to submit to the exclusive jurisdiction of the courts of the State of
Delaware for any proceeding arising in connection with this Agreement (and each
such party agrees not to commence any such proceeding, except in such courts),
(ii) to the extent such
-14-
party is not a resident of the State of Delaware, agrees to appoint an agent in
the State of Delaware as such party's agent for acceptance of legal process in
any such proceeding against such party with the same legal force and validity as
if served upon such party personally within the State of Delaware, and to notify
promptly each other party hereto of the name and address of such agent, (iii)
waives any objection to the laying of venue of any such proceeding in the courts
of the State of Delaware, and (iv) waives, and agrees not to plead or to make,
any claim that any such proceeding brought in any court of the State of Delaware
has been brought in an improper or otherwise inconvenient forum.
15. Further Assurance. If the holder of the Option shall exercise the
Option in accordance with the terms of this Agreement, from time to time and
without additional consideration, then the Company will execute and deliver, or
cause to be executed and delivered, such additional or further transfers,
assignments, endorsements, consents and other instruments as the holder of the
Option may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement.
-15-
IN WITNESS WHEREOF, the parties hereto have duly executed this Third
Stock Option Agreement on the date first written.
ATTEST: HUNGARIAN TELEPHONE AND CABLE CORP.
By:/s/ Xxxxxxx X. Xxxxx By:/s/ Xxxxx X. Xxxxxxxx
----------------------- -------------------------
Xxxxxxx X.Xxxxx Xxxxx X. Xxxxxxxx
Controller Chief Executive Officer
CU CAPITALCORP.
By:/s/ Xxxxxxx X. Xxxxx
-------------------------
Xxxxxxx X. Xxxxx
Authorized Signatory
