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EXHIBIT 99.3
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STOCK PURCHASE AGREEMENT
between
PLD TELEKOM INC.
and
CABLE AND WIRELESS PLC
Dated April 19, 1998
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TABLE OF CONTENTS
Page
ARTICLE I
SALE OF STOCK; CONSIDERATION........................................2
1.1. Sale by C&W...................................................2
1.2. Consideration for the Sale by C&W.............................2
ARTICLE II
THE CLOSING.........................................................2
2.1. Time and Place of Closing.....................................2
2.2. Deliveries by C&W.............................................3
2.3. Deliveries by Buyer...........................................3
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF C&W...............................3
3.1. Organization...................................................3
3.2. Authority Relative to this Agreement...........................4
3.3. Title.........................................................4
3.4. Consents and Approvals; No Violation..........................4
3.5. Financial Statements; Undisclosed Liabilities.................5
3.6. Fees and Commissions..........................................5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER....................6
4.1. Organization. ................................................6
4.2. Authority Relative to this Agreement. ........................6
4.4. Consents and Approvals; No Violation; Receipt of Information..6
4.5. Fees and Commissions..........................................7
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ARTICLE V
COVENANTS OF THE PARTIES............................................7
5.1. Conduct of Business of CIBBV..................................7
5.2. Expenses......................................................8
5.3. Further Assurances............................................8
5.4. Public Statements.............................................8
5.5. Consents and Approvals........................................9
5.7. Supplements to Schedules.....................................10
5.8. Xxxx-Xxxxx-Xxxxxx............................................10
5.9. Termination of Intercompany Agreements; Settlement of
Liabilities. .............................................10
5.10. Maintenance of Guarantee....................................11
5.11. Secondment..................................................11
ARTICLE VI
CLOSING CONDITIONS.................................................11
6.1. Conditions to Each Party's Obligations to Effect the
Transactions Contemplated Hereby..........................11
6.2. Conditions to Obligations of Buyer...........................12
6.3. Conditions to Obligations of C&W.............................12
ARTICLE VII
TERMINATION AND ABANDONMENT........................................13
7.1. Termination..................................................13
7.2. Procedure and Effect of Termination..........................14
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION.......................14
8.1. Survival of Representations...................................14
8.2. C&W's Indemnification of Buyer...............................14
8.3. Buyer's Indemnification of C&W...............................15
8.4. Conditions of Indemnification................................15
8.5. Cushion......................................................16
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8.6. Limitation of Liability......................................16
8.7. Remedies Cumulative..........................................17
ARTICLE IX
MISCELLANEOUS PROVISIONS...........................................17
9.1. Amendment and Modification. .................................17
9.2. Waiver of Compliance; Consents...............................17
9.3. Notices......................................................18
9.4. Assignment...................................................19
9.5. Confidentiality..............................................19
9.6. Governing Law................................................20
9.7. Counterparts.................................................20
9.8. Interpretation...............................................20
9.9. Entire Agreement.............................................20
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), dated
April 19, 1998, by and between:
PLD TELEKOM INC., a company incorporated under the laws of the State
of Delaware ("Buyer"), with an address at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, and
CABLE AND WIRELESS PLC, a company registered under the laws of
England under the number 238525 ("C&W"), with an address at 000 Xxxxxxxxx Xxxx,
Xxxxxx XX0X 0XX.
W I T N E S S E T H:
WHEREAS, C&W owns directly 100 shares of common stock, par value NLG
400 per share, of CommStruct International Byelorussia BV, a company organized
under the laws of The Netherlands ("CIBBV"), constituting 100% of the issued and
outstanding capital stock of CIBBV (the "CIBBV Shares"), which is the owner of
(i) fifty percent (50%) of the outstanding common equity interests (the "Belcel
Shares") in Belarus-Netherlands Belcel Joint Venture ("Belcel") and (ii) one
hundred percent (100%) of the outstanding common equity interests (the "Baltic
Operations Shares") in Baltic Operations Ltd. - Latvia ("Baltic Operations", and
together with CIBBV and Belcel, the "CIBBV Group"); and
WHEREAS, C&W desires to sell and transfer, or to cause the sale and
transfer, to Buyer, and Buyer desires to purchase, the CIBBV Shares, as more
specifically provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties, intending to be
legally bound, hereby agree as follows:
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ARTICLE I
SALE OF STOCK; CONSIDERATION
1.1. Sale by C&W. Upon the terms and subject to the satisfaction of
the conditions contained in this Agreement, C&W agrees to sell, assign, transfer
and deliver to Buyer, and Buyer agrees to purchase and acquire, all of the
right, title and interest of C&W in and to the CIBBV Shares. In addition, C&W
will assign to Buyer or its designee the benefit of the Loan Agreement, dated
November 28, 1995, between C&W and CIBBV, as amended (the "Loan Agreement").
1.2. Consideration for the Sale by C&W. On the Closing Date (as
hereinafter defined) and upon the terms and subject to the satisfaction of the
conditions contained in this Agreement, Buyer will issue and deliver to C&W an
aggregate of 500,000 newly-issued, fully paid and non-assessable shares of
Common Stock (the "Buyer Shares"), par value $0.01 per share, of Buyer,
registered in the name of C&W or its designee or nominee, allocated as follows :
(a) an aggregate of 200,000 shares of Common Stock of Buyer in
consideration of the aforesaid sale, assignment, transfer and delivery of the
CIBBV Shares
(b) an aggregate of 300,000 shares of Common Stock of Buyer in
consideration of the aforesaid assignment of the Loan Agreement.
ARTICLE II
THE CLOSING
2.1. Time and Place of Closing. Subject to the terms and conditions
of this Agreement, the consummation of the transaction contemplated hereby (the
"Closing") shall take place at the offices of Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 on the third Business
Day (as defined herein) after Buyer shall have delivered to C&W written notice
that the conditions set forth in Section 6.2 hereof have been satisfied (the
"Closing Date") or at such other time and place as shall be determined by mutual
agreement of the parties.
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2.2. Deliveries by C&W. At the Closing, C&W will deliver or cause to
be delivered the following to Buyer:
(a) duly certified evidence, acceptable to Buyer, of one or
more entries in the share registry of CIBBV evidencing the transfer of title to
the CIBBV Shares to Buyer, together with any other documents that are necessary
to transfer to Buyer good and marketable title to the CIBBV Shares;
(b) duly executed documentation, in form and substance
reasonably acceptable to Buyer, evidencing the assignment of the benefit of the
Loan Agreement to Buyer or its designee;
(c) the Officer's Certificate referred to in Section 6.2(e)
hereof; and
(d) such other documents, instruments and writings as are
reasonably required to be delivered by C&W at or prior to the Closing Date
pursuant to this Agreement or otherwise reasonably required in connection
herewith.
2.3. Deliveries by Buyer. At the Closing, Buyer will
deliver the following to C&W:
(a) one or more stock certificates, registered in the name of
C&W or its nominee or designee, representing the Buyer Shares;
(b) the Officer's Certificate referred to in Section 6.3(c)
hereof; and
(c) such other documents, instruments and writings as are
reasonably required to be delivered by Buyer at or prior to the Closing Date
pursuant to this Agreement or otherwise reasonably required in connection
herewith.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF C&W
C&W represents and warrants to Buyer as follows:
3.1. Organization.
(a) C&W is a public limited company duly organized and validly
existing under the laws of England and has all requisite power to enter into
this Agreement and to dispose of the CIBBV Shares in accordance with this
Agreement and to perform the transactions contemplated hereby.
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(b) CIBBV is a company duly organized and validly existing
under the laws of The Netherlands. C&W has heretofore delivered to Buyer
complete and correct copies of the organizational documents of CIBBV as
currently in effect.
3.2. Authority Relative to this Agreement. C&W has full corporate
power and authority to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by C&W, and no other
corporate proceedings on the part of C&W are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by C&W, and assuming that this
Agreement constitutes a valid and binding agreement of Buyer, constitutes a
valid and binding agreement of C&W, enforceable against C&W in accordance with
its terms, except that such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium or other similar laws affecting or relating
to enforcement of creditors' rights generally or general principles of equity.
3.3. Title.
(a) C&W directly owns the CIBBV Shares that are the subject of
this Agreement free and clear of all pledges, security interests, liens,
charges, encumbrances, claims, options or limitations affecting its ability to
vote such shares or to transfer such shares to Buyer or to exercise any other
rights appurtenant thereto. The CIBBV Shares that are the subject of this
Agreement are the only shares or other equity interests in, or agreements,
contracts, instruments, arrangements or understandings enabling a party upon
exercise or conversion to acquire shares or other equity interests in, CIBBV. At
the Closing, Buyer will acquire good title to the CIBBV Shares, free and clear
of all pledges, security interests, liens, charges, encumbrances, claims,
options or limitations of any nature whatsoever. There is no subscription,
option, warrant, call, right, agreement or understanding for the sale, delivery,
assignment or transfer by C&W of the CIBBV Shares.
(b) Subject, in the case of the Belcel Shares, to the
provisions of the charter of Belcel, CIBBV owns the Belcel Shares and the Baltic
Operations Shares free and clear of all pledges, security interests, liens,
charges, encumbrances, claims, options or limitations affecting its ability to
vote such shares or to exercise any other rights appurtenant thereto.
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3.4. Consents and Approvals; No Violation.
(a) Except as set forth in Schedule 3.4, neither the execution
and delivery of this Agreement by C&W, nor the sale by C&W of the CIBBV Shares
pursuant to this Agreement, will (i) conflict with or result in any breach of
any provision of the Articles of Incorporation or Bylaws, or similar charter
documents, of C&W or Belcel or (ii) require any consent, approval, authorization
or permit of, or filing with or notification to, any governmental or regulatory
authority to be made or obtained by C&W or CIBBV.
(b) Except as set forth in Schedule 3.4, C&W is not required
to make or obtain any declaration, filing or registration with, or notice to, or
authorization, consent or approval of any governmental or regulatory body or
authority for the consummation by C&W of the transactions contemplated hereby.
3.5. Financial Statements; Undisclosed Liabilities.
(a) C&W has previously furnished to Buyer copies of CIBBV's
unaudited (i) balance sheets as of December 31, 1997 and (ii) related unaudited
statements of income and retained earnings and changes in financial position of
CIBBV for the fiscal year then ended. To the knowledge of C&W, such financial
report presents fairly the financial information purported to be set forth
therein as of the dates, or for the periods, described therein, all in
conformity with the accounting principles described therein. Notwithstanding the
foregoing, C&W is making no representation as to whether the receivables set out
in the financial statements are or will be collectible.
(b) Except as set forth in Schedule 3.5, to the knowledge of
C&W, CIBBV has not incurred any material liability or obligation, secured or
unsecured (whether absolute, accrued, contingent or otherwise, and whether due
or to become due), of a nature required by generally accepted accounting
principles to be reflected in a corporate balance sheet or disclosed in the
notes thereto, which are not accrued or reserved against in the financial
reports referred to in Section 3.5(a) hereof or disclosed in the notes thereto
in accordance with generally accepted accounting principles whether at or after
the date of the financial report referred to in Section 3.5(a) hereof, except
those which were incurred in the ordinary course of business in line with past
practice.
3.6. Fees and Commissions. No broker, finder or other person is
entitled to any brokerage fees, commissions or finder's fees in connection with
the transaction contemplated hereby by reason of any action taken by C&W. C&W
hereby covenants that it will pay to Buyer or otherwise discharge, and will
indemnify and hold Buyer harmless from and against, any and all claims or
liabilities for all brokerage fees,
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commissions and finder's fees (other than as described above) incurred by reason
of any action taken by C&W.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to C&W as follows:
4.1. Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. Buyer has
heretofore delivered to C&W complete and correct copies of its Certificate of
Incorporation and Bylaws as currently in effect.
4.2. Authority Relative to this Agreement. Buyer has full power and
authority to execute, deliver and perform all obligations under this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by Buyer and no other proceedings
on the part of Buyer are necessary to authorize this Agreement or to consummate
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Buyer, and assuming that this Agreement constitutes a
valid and binding agreement of C&W, constitutes a valid and binding agreement of
Buyer, enforceable against Buyer in accordance with its terms, except that such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium
or other similar laws affecting or relating to enforcement of creditors' rights
generally or general principles of equity.
4.3. Buyer Shares. The Buyer Shares, when issued in accordance with
the terms and conditions of this Agreement, will be validly issued, fully paid
and non-assessable shares of Common Stock of Buyer, free and clear of all
pledges, security interests, liens, charges, encumbrances, claims, options or
limitations affecting C&W's ability to vote such shares or to exercise any other
rights appurtenant thereto
4.4. Consents and Approvals; No Violation; Receipt of Information.
(a) Except as set forth in Schedule 4.4, neither the execution
and delivery of this Agreement by Buyer nor the purchase by Buyer of the CIBBV
Shares pursuant to this Agreement will (i) conflict with or result in any breach
of any provision of the organizational documents of Buyer, (ii) require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, or (iii) result in a default (or
give rise to any right of termination,
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cancellation or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, agreement, lease or other instrument or
obligation to which Buyer or any of its subsidiaries are a party or by which any
of their respective assets may be bound, except for such defaults (or rights of
termination, cancellation or acceleration) as to which requisite waivers or
consents have been obtained.
(b) No declaration, filing or registration with, or notice to,
or authorization, consent or approval of any governmental or regulatory body or
authority is necessary for the consummation by Buyer of the transactions
contemplated hereby.
(c) Buyer or its counsel, accountants or other advisers have
requested, received, reviewed and considered all information deemed relevant by
them, including, without limitation, information regarding currency and taxation
issues, in making the decision to enter into this Agreement and to acquire the
CIBBV Shares on the terms and conditions set forth herein.
4.5. Fees and Commissions. No broker, finder or other person is
entitled to any brokerage fees, commissions or finder's fees in connection with
the transaction contemplated hereby by reason of any action taken by Buyer
making such representation. Buyer hereby covenants that it will pay to C&W or
otherwise discharge, and will indemnify and hold C&W harmless from and against,
any and all claims or liabilities for all brokerage fees, commissions and
finder's fees (other than as described above) incurred by reason of any action
taken by Buyer.
ARTICLE V
COVENANTS OF THE PARTIES
5.1. Conduct of Business of CIBBV. Except as described in Schedule
5.1, during the period from the date of this Agreement to the Closing Date,
C&W covenants that CIBBV will conduct its business and operations according to
its ordinary and usual course of business consistent with past practice. Without
limiting the generality of the foregoing, and, except as contemplated in this
Agreement or as described in Schedule 5.1, prior to the Closing Date, without
the prior written consent of Buyer, C&W will not permit CIBBV to:
(a) (i) create, incur or assume any amount of indebtedness for
money borrowed, other than in the ordinary course of business in line with past
practice, or (ii) assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the obligations of
any other person except in the ordinary course of business in line with past
practice; provided, CIBBV may endorse
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negotiable instruments in the ordinary course of business and may
enter into the proposed guarantee set forth on Schedule 3.5;
(b) declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any combination thereof) in
respect of its capital stock, or redeem or otherwise acquire any shares of its
capital stock;
(c) enter into any agreement, commitment or transaction
(including without limitation any borrowing, capital expenditure or capital
financing), except agreements, commitments or transactions in the ordinary
course of business in line with past practice or as contemplated herein; or
(d) enter into any contract, agreement, commitment or
arrangement, whether written or oral, with respect to any of the transactions
set forth in the foregoing paragraphs (a) through (c).
5.2. Expenses. Whether or not the transactions contemplated hereby
are consummated, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne by the party
incurring such costs and expenses.
5.3. Further Assurances. Subject to the terms and conditions of this
Agreement, each of the parties hereto will use all reasonable efforts to take,
or cause to be taken, all action, and to do, or cause to be done, all things
reasonably necessary, proper or advisable under applicable laws and regulations
to consummate and make effective the sale, assignment, transfer and delivery of
the CIBBV Shares to Buyer and the issuance and delivery of the Buyer Shares to
C&W pursuant to this Agreement. From time to time after the date hereof, without
further consideration, C&W will, at its own expense, execute and deliver such
documents to Buyer as Buyer may reasonably request in order more effectively to
vest in Buyer good title to the CIBBV Shares and to assign the benefit of the
Loan Agreement (and any other liabilities to be assigned to Buyer or its
designee pursuant to Section 5.9 hereof) to Buyer or its designee. From time to
time after the date hereof, without further consideration, Buyer will, at its
own expense, execute and deliver such documents to C&W as C&W may reasonably
request in order more effectively to consummate the issuance and delivery of the
Buyer Shares pursuant to this Agreement.
5.4. Public Statements. The parties shall consult with each other
prior to issuing any public announcement, statement or other disclosure with
respect to this Agreement or the transactions contemplated hereby and shall not
issue any such public announcement, statement or other disclosure prior to such
consultation, unless legally compelled (by deposition, interrogatory, request
for documents, subpoena, civil
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investigative demand or similar process, or by order of a court or tribunal of
competent jurisdiction), or in order to comply with applicable rules or
requirements of any stock exchange, government department or agency or other
regulatory authority, or by requirements of any securities law or regulation or
other legal requirement in circumstances where such consultation would not be
practicable.
5.5. Consents and Approvals.
(a) C&W and Buyer shall (i) promptly prepare and file all
necessary documentation, (ii) effect all necessary applications, notices,
petitions and filings and execute all agreements and documents, (iii) use all
reasonable efforts to obtain all necessary permits, consents, approvals and
authorizations of all governmental bodies and (iv) use all reasonable efforts to
obtain all necessary permits, consents, approvals and authorizations of all
other parties, in the case of C&W, as specified on Schedule 3.4 and, in the case
of Buyer, as specified on Schedule 4.4 (including without limitation any
approval required from the shareholders of Buyer and the holders of the debt of
the Buyer), together with any other approvals or consents identified by the
parties after the signing of this Agreement as being required in order,
respectively, for C&W to sell, and for Buyer to acquire, the CIBBV Shares, and,
respectively, for Buyer to issue to C&W, and for C&W to acquire, the Buyer
Shares. Each of Buyer and C&W shall provide reasonable assistance to the other
in order to obtain the consents and approvals referred to herein. Each of C&W
and Buyer shall have the right to review and be consulted in advance as to all
characterizations of the information relating to the transactions contemplated
by this Agreement which appear in any filing made in connection with the
transactions contemplated hereby. The parties hereto agree that they will
consult with each other with respect to the obtaining of all such necessary
permits, consents, approvals and authorizations of all third parties and
governmental bodies.
(b) The parties hereto shall consult with each other prior to
proposing or entering into any stipulation or agreement with any foreign or
United States governmental authority or agency or any third party in connection
with any foreign or United States governmental consents and approvals legally
required for the consummation of the transactions contemplated hereby and shall
not propose or enter into any such stipulation or agreement without the other
party's prior written consent, which consent shall not be unreasonably withheld.
5.6. Completion of Ancillary Agreements. Subject to the terms and
conditions of this Agreement, each party will use all reasonable efforts to take
or cause to be taken, all action, and do or cause to be done all things
reasonably necessary, proper or advisable to ensure the completion of, in the
case of C&W, the Share Purchase
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Agreement, and in the case of Buyer, the Asset Exchange Agreement, dated the
date hereof, between Buyer and News America (the "Asset Exchange Agreement") and
the Directors Nomination Agreement, between Buyer and News America, each in the
form as executed on the date hereof, and to perform all of their respective
obligations thereunder.
5.7. Supplements to Schedules. C&W, on the one hand, and Buyer, on
the other hand, shall have the right from time to time prior to the Closing to
supplement or amend its Schedules with respect to any matter hereafter arising
which if existing or known at the date of this Agreement would have been
required to be set forth or described in such Schedules. Any such supplemental
or amended disclosure shall be deemed to have cured any breach of any
representation or warranty made in this Agreement for purposes of this
Agreement, but will not be deemed to have cured any such breach made in this
Agreement and to have been disclosed as of the date of this Agreement for
purposes of determining whether or not the conditions set forth in Article VI
hereof have been satisfied.
5.8. Xxxx-Xxxxx-Xxxxxx. Buyer shall use its best efforts to assist
News America Incorporated ("News America") in the prompt preparation and filing
of the filing required to be made by News America under Title II of the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), with respect to the transactions contemplated by the share purchase
agreement, dated as of the date hereof, between C&W and News America (the "Share
Purchase Agreement"), and Buyer shall promptly, and in any event within five (5)
Business Days (as defined herein) from the date of this Agreement, make the
filing required to be made by Buyer under the HSR Act with respect to the
transactions contemplated by the Share Purchase Agreement.
5.9. Termination of Intercompany Agreements; Settlement of
Liabilities. At the Closing Date, the benefit of the Loan Agreement shall be
assigned to Buyer or its designee pursuant to the terms of this Agreement. In
addition, at or prior to the Closing Date, all intercompany agreements relating
to loans or other indebtedness for money borrowed (including, for the avoidance
of doubt, on a "current account" basis), between C&W or its subsidiaries or
affiliates controlled by C&W (other than the CIBBV Group), on the one hand, and
and CIBBV, Belcel or Baltic Operations, on the other hand, other than the Loan
Agreement, shall have either been terminated or assigned to Buyer or its
designee, in either case without any residual liability on the part of CIBBV,
Belcel or Baltic Operations thereunder to C&W or any of its subsidiaries or
affiliates controlled by C&W outside of the CIBBV Group as of the Closing Date,
and vice versa. For the avoidance of doubt, this provision does not apply to any
amounts that might be required to be paid by Belcel to any of C&W's subsidiaries
or affiliates
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controlled by C&W in relation to lines leased through the Ministry of Transport
of Belarus, Beltelekom or the Republican Exchange.
5.10. Maintenance of Guarantee. Following completion of the
transactions contemplated hereby, C&W shall maintain, in full force and effect,
its corporate guarantee (the "Guarantee") in relation to the obligations of
Belcel under the Loan Agreement, dated February 21, 1995, between Belcel and
Nordbanken until the earlier of the expiration of its obligations under the Loan
Agreement or until another guarantee is put in place, provided that in no event
shall C&W be required to increase or extend its liabilities under the existing
form of the Guarantee. To the extent that C&W is called to perform its
obligations under the Guarantee in full or in part, Buyer shall indemnify C&W
for the full amount actually paid by C&W under the Guarantee. In addition, Buyer
shall not, and shall ensure that Belcel does not, make further drawdowns under
such Loan Agreement and shall use best efforts to put a substitute guarantee in
place.
5.11. Secondment. C&W shall use its best efforts to second Xxxxxxx
Xxxxxxxx and Xxx Xxxxx to Buyer under the terms of the existing Agreement for
the Provision of Support Services, dated November 27, 1996, between C&W and
Buyer, at cost plus 7.2%, for a period of six months from the Closing Date.
ARTICLE VI
CLOSING CONDITIONS
6.1. Conditions to Each Party's Obligations to Effect the
Transactions Contemplated Hereby. The respective obligations of each party to
effect the transactions contemplated hereby shall be subject to the fulfillment
at or prior to the Closing Date of the following conditions:
(a) No preliminary or permanent injunction or other order or
decree by any federal, state, local or foreign court which prevents the
consummation of the transactions contemplated hereby shall have been issued and
remain in effect (each party agreeing to use its reasonable best efforts to have
any such injunction, order or decree lifted) and no statute, rule or regulation
shall have been enacted by any federal, state, local, or foreign government or
governmental agency which prohibits the consummation of the transactions
contemplated hereby;
(b) All foreign and United States federal, state and local
government consents and approvals required for the consummation of the
transactions contemplated hereby shall have become Final Orders (a "Final Order"
means a final
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order after all opportunities for rehearing are exhausted (whether or not any
appeal thereof is pending)) and shall not be subject to terms and conditions;
and-
(c) All approvals and consents specified on Schedules 3.4 and
4.4 hereto, together with any necessary approvals or consents identified by the
parties hereto following the date of this Agreement as being required in order
for C&W to sell,and for Buyer to acquire, the CIBBV Shares, and for Buyer to
issue to C&W, and for C&W to acquire, the Buyer Shares shall have been obtained.
6.2. Conditions to Obligations of Buyer. The obligation of Buyer to
effect the transactions contemplated by this Agreement shall be subject to the
fulfillment at or prior to the Closing Date of the following additional
conditions:
(a) C&W shall have performed and complied with in all material
respects the covenants and agreements contained in this Agreement required to be
performed and complied with by it at or prior to the Closing Date, and the
representations and warranties of C&W set forth in this Agreement, giving effect
to the amendment or supplement of any schedule pursuant to Section 5.6 hereof,
shall be true and correct in all material respects as of the date of this
Agreement and as of the Closing Date as though made at and as of the Closing
Date;
(b) the transactions contemplated hereby shall have been
approved by all necessary corporate actions by CIBBV;
(c) the conditions to the closing of the Share Purchase
Agreement (other than the issuance of the Buyer Shares to C&W pursuant to this
Agreement) shall have been met, and C&W and News America shall be prepared to
close the transactions contemplated by the Share Purchase Agreement immediately
after the closing of the transactions contemplated hereby;
(d) Buyer shall have received duly certified evidence,
acceptable to Buyer, of one or more entries in the share registry of CIBBV
evidencing the transfer of title to the CIBBV Shares to Buyer, together with any
other documents that are necessary to transfer to Buyer good and marketable
title to the CIBBV Shares; and
(e) Buyer shall have received a certificate from an authorized
officer of C&W, dated the Closing Date, to the effect that to the officer's
knowledge, the conditions set forth in Section 6.2(a) and (b) have been
satisfied.
6.3. Conditions to Obligations of C&W. The obligations of C&W to
effect the transaction contemplated by this Agreement shall be subject to the
fulfillment at or prior to the Closing Date of the following additional
conditions:
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(a) one or more stock certificates representing the Buyer
Shares shall have been delivered to C&W or its nominee or designee;
(b) Buyer shall have performed and complied with in all
material respects the covenants and agreements contained in this Agreement
required to be performed and complied with by it at or prior to the Closing
Date, and the representations and warranties of Buyer set forth in this
Agreement, giving effect to the amendment or supplement of any schedule pursuant
to Section 5.6 hereof, shall be true and correct in all material respects as of
the date of this Agreement and as of the Closing Date as though made at and as
of the Closing Date; and
(c) C&W shall have received a certificate from an authorized
officer of Buyer, dated the Closing Date, to the effect that to the officer's
knowledge, the conditions set forth in Section 6.3(b) have been satisfied.
ARTICLE VII
TERMINATION AND ABANDONMENT
7.1. Termination.
(a) This Agreement may be terminated at any time prior to the
Closing Date, by mutual written consent of Buyer and C&W.
(b) This Agreement may be terminated by Buyer, on the one
hand, or C&W, on the other hand, if the transactions contemplated hereby shall
not have been consummated on or before June 30, 1998; provided, however, that
the right to terminate this Agreement pursuant to this Section 7.1(b) shall not
be available to any party whose failure to perform any of its covenants or
obligations under this Agreement has been the cause of or resulting in the
failure of the transactions contemplated by this Agreement to occur on or prior
to the aforesaid date.
(c) This Agreement may be terminated by either Buyer, on the
one hand, or C&W, on the other hand, if (i) any governmental or regulatory body,
the consent of which is a condition to the obligations of C&W and Buyer to
consummate the transactions contemplated hereby, shall have determined not to
grant its consent and all appeals of such determination shall have been taken
and have been unsuccessful, or (ii) any court of competent jurisdiction shall
have issued an order, judgment or decree permanently restraining, enjoining or
otherwise prohibiting the transactions contemplated hereby and such order,
judgment or decree shall have become final and nonappealable.
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(d) This Agreement may be terminated by Buyer, on the one
hand, or C&W, on the other hand, if there has been a material violation or
breach of any agreement, representation or warranty contained in this Agreement
which violation or breach has not been waived by the non-breaching party or
otherwise rectified. Without limiting the generality of the foregoing, the
failure by Buyer to file the HSR filing to be made by Buyer, as set forth in
Section 5.8 and within the time period set forth in Section 5.8, shall
constitute a material breach of this Agreement by Buyer.
7.2. Procedure and Effect of Termination. In the event of
termination of this Agreement and abandonment of the transactions contemplated
hereby by either or both of the parties pursuant to Section 7.1, written notice
thereof shall forthwith be given by the terminating party to the other party and
this Agreement shall terminate and the transactions contemplated hereby shall be
abandoned, without further action by any of the parties hereto, without
prejudice to any claims of a party to this Agreement arising prior to the date
of such termination out of any breach of any agreement, representation or
warranty contained in this Agreement and Article VIII shall continue in respect
of such claims. In addition, the obligations of the parties hereto under Section
5.4 and Article IX shall survive termination of this Agreement. If this
Agreement is terminated as provided herein all filings, applications and other
submissions made pursuant to this Agreement, to the extent practicable, shall be
withdrawn from the agency or other person to which they were made.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
8.1. Survival of Representations. All representations and warranties
of the parties, being those in Articles III and IV, including the schedules
thereto, shall survive the Closing until one (1) year after the Closing.
8.2. C&W's Indemnification of Buyer. Subject to the conditions of
this Article VIII, C&W hereby agrees that it shall indemnify, defend and hold
harmless Buyer and any parent, subsidiary and affiliate of Buyer (collectively,
the "Buyer Group") from and against all demands, claims, actions or causes of
action, assessments, losses, damages, liabilities, costs and expenses,
including, without limitation, interest, penalties and reasonable attorneys'
fees and expenses (collectively, "Damages"), asserted against, resulting to,
imposed upon or incurred by any of the Buyer Group, directly or indirectly,
arising out of or resulting from a breach of any representation, warranty or
agreement of C&W contained in or made pursuant to this Agreement or any facts or
circumstances constituting such a breach (collectively, "Buyer's Indemnifiable
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Claims"); provided, however, that the indemnification obligation of C&W with
respect to any breach of any of the representations or warranties made by C&W in
this Agreement shall arise only in the event that C&W had knowledge of such
breach on or before the Closing. For purposes of this Agreement, "knowledge" of
C&W shall mean the knowledge of Xxxxx Xxxxxxxx, Xxxxxx Xxxx and Xxxx Xxxxxxxxxx
(collectively, the "Designated Persons"). C&W represents and warrants that the
Designated Persons are the only current management personnel of C&W or CIBBV who
have substantial executive, management or financial responsibilities for CIBBV
who would be reasonably likely to be aware of facts or circumstances that could
cause a representation or warranty made by C&W in this Agreement to be false in
any material respect.
8.3. Buyer's Indemnification of C&W. Subject to the conditions of
this Article VIII, Buyer hereby agrees that it shall indemnify, defend and hold
harmless C&W and any parent, subsidiary and affiliate of C&W (collectively, the
"C&W Group") from and against all Damages asserted against, resulting to,
imposed upon or incurred by any of the C&W Group, directly or indirectly,
arising out of or resulting from a breach of any representation, warranty or
agreement of Buyer contained in or made pursuant to this Agreement or any facts
or circumstances constituting such a breach ("C&W Indemnifiable Claims"; C&W's
Indemnifiable Claims and Buyer's Indemnifiable Claims are collectively referred
to herein as the "Indemnifiable Claims"); provided, however, that the
indemnification obligation of Buyer with respect to any breach of any of the
representations or warranties made by Buyer in this Agreement shall arise only
in the event that Buyer had knowledge of such breach on or before the Closing.
For purposes of this Agreement "knowledge" of Buyer shall mean actual knowledge
on the part of any member of management of Buyer or actual knowledge of such
circumstances that would lead a person not negligent to investigate and, more
likely than not, obtain actual knowledge.
8.4. Conditions of Indemnification. The obligations and liabilities
of C&W under Section 8.2 or Buyer under Section 8.3, respectively, with respect
to Indemnifiable Claims resulting from the assertion of liability by third
parties shall be subject to the following terms and conditions:
(a) The member of the C&W Group or the Buyer Group, as the
case may be, asserting the existence of an Indemnifiable Claim (the "Indemnified
Party") will give notice of any such Indemnifiable Claim to the party from whom
Indemnification is sought (the "Indemnifying Party"), and the Indemnifying Party
shall undertake the defense thereof by representation of their choosing, and
will consult with the Indemnified Party concerning such defense during the
course thereof.
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(b) In the event that the Indemnifying Party within a
reasonable time after notice of any Indemnifiable Claim, fails to defend, the
Indemnified Party against which such Indemnifiable Claim has been asserted will
(upon further notice to the Indemnifying Party) have the right to undertake the
defense, compromise or settlement of such Indemnifiable Claim on behalf of and
for the account and risk of the Indemnifying Party.
(c) Anything in this Section 8.4 to the contrary
notwithstanding, (i) if there is a reasonable probability that an Indemnifiable
Claim may materially and adversely affect the Indemnified Party other than as a
result of money damages or other money payments (for example, as a result of
injunctive or other equitable relief), the Indemnified Party shall have the
right to defend, compromise or settle such Indemnifiable Claim, provided that
the Indemnifying Party will not be bound by any determination concerning any
Indemnifiable Claim so defended or any compromise or settlement effected without
the consent of the Indemnifying Party, such consent not to be unreasonably
withheld, and (ii) the Indemnifying Party not shall not, without the Indemnified
Party's written consent, settle or compromise any Indemnifiable Claim or consent
to entry of any judgment in respect thereof, unless (A) the Indemnifying Party
delivers to the Indemnified Party in advance its written agreement satisfactory
to the Indemnified Party which provides that amounts paid and incurred or to be
incurred by the Indemnified Party in connection with such Indemnifiable Claim
shall be repaid promptly by the Indemnifying Party to the Indemnified Party
(subject to the limitations of this Article VIII), and (B) such settlement,
compromise or consent includes as an unconditional term thereof the giving by
the claimant or the plaintiff to the Indemnified Party, as the case may be, a
release from all liability in respect to such Indemnifiable Claim.
8.5. Cushion. The provisions for indemnity contained in Section 8.2
and Section 8.3 hereof shall only be effective with respect to an Indemnifiable
Claim (or, if more than one Indemnifiable Claim is asserted, with respect to all
Indemnifiable Claims) to the extent the amount (or aggregate amount, in the case
of more than one Indemnifiable Claim) of damages sustained in connection
therewith exceeds Three Hundred Thousand dollars (USD$300,000), but to the
extent that the amount or amounts of damages in respect of Indemnifiable Claims
exceeds $300,000, the indemnity provisions hereunder shall apply to all such
damages, without regard to the $300,000 limit; provided, however, that no
cushion shall apply under this Agreement to the indemnification by Buyer of C&W
pursuant to Section 5.10 hereof.
8.6. Limitation of Liability. Anything in this Agreement to the
contrary notwithstanding, the liability of either party in respect of any breach
of any
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representation, warranty or agreement under this Agreement shall be limited to
claims as to which written notice shall have been given to the Indemnifying
Party on or prior to the first anniversary date of the Closing Date, whether or
not the Indemnified Party has actually settled or incurred any expense with
respect to such Damages. Furthermore, anything in this Agreement to the contrary
notwithstanding, (a) the liability of C&W pursuant to this Agreement shall be
limited to the aggregate market value on the Closing Date of the Buyer Shares
received by C&W (calculated based on the last sale price of the Common Stock of
Buyer on The Nasdaq Stock Market on the Closing Date (the "Market Value")), as
reduced by any amounts actually paid or required to be paid by C&W in respect of
all liabilities of C&W arising out of the transactions contemplated under the
Share Purchase Agreement,whether under Article VIII of such Agreement or
otherwise, and (b) the liability of Buyer pursuant to this Agreement shall be
limited to twenty-five percent (25%) of the Market Value of the Buyer Shares;
provided, however, that, such cap on the liability of Buyer shall not apply to
the indemnification by Buyer of C&W pursuant to Section 5.10 hereof.
8.7. Remedies Cumulative. The remedies provided herein shall be
cumulative and shall not preclude the assertion by Buyer of any other rights or
the seeking of any other remedies against the other party, as the case may be;
provided, however, all claims under this Agreement shall be governed by this
Article VIII and provided further that the cushion provided in Section 8.6
hereof and the limitation of liability provided in Section 8.7 hereof shall also
apply to all liabilities arising out of the transactions contemplated hereby but
grounded in a legal or equitable theory other than a breach of representation,
warranty or agreement set forth in this Agreement.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1. Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified or supplemented only by written agreement
signed by all of the parties hereto.
9.2. Waiver of Compliance; Consents. Except as otherwise provided in
this Agreement, any failure of any of the parties to comply with any obligation,
covenant, agreement or condition herein may be waived by the party entitled to
the benefits thereof only by a written instrument signed by the party granting
such waiver, but such waiver shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
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9.3. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed effectively given upon personal delivery to
the party to be notified, on the next Business Day after delivery to an
internationally recognized overnight courier service, upon confirmation of a
facsimile transmission, or five days after deposit with the United States Post
Office or the Royal Mail, by registered or certified mail (return receipt
requested), postage prepaid, to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice; provided
that notices of a change of address shall be effective only upon receipt
thereof):
If to C&W, to:
Cable and Wireless plc
000 Xxxxxxxxx Xxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Facsimile: (00) 000 000 0000
Attention: Company Secretary
(with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxxxx 0, Xxxx Xxxxx Xxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Facsimile: (00) 000-000-0000
Attention: Xxxxxx X. Xxxxxx)
If to Buyer, to:
PLD Telekom Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxx
In the case of notices given to C&W or Buyer, a copy thereof shall
simultaneously be given to News America at:
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News America Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
(with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.)
9.4. Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any party
hereto, including by operation of law without the prior written consent of the
other party, nor is this Agreement intended to confer upon any other person
except the parties hereto any rights or remedies hereunder.
9.5. Confidentiality. Each of the Parties hereto will hold, and will
use its reasonable, good faith efforts to cause its respective shareholders,
partners, members, directors, officers, employees, accountants, counsel,
consultants, agents and financial or other advisors (collectively "Agents") to
hold, in confidence all information (whether oral or written), including this
Agreement and the documents contemplated herein, concerning the transactions
contemplated by this Agreement furnished to such Party by or on behalf of any
other Party in connection with such transactions, unless legally compelled (by
deposition, interrogatory, request for documents, subpoena, civil investigative
demand or similar process, or by order of a court or tribunal of competent
jurisdiction), or in order to comply with applicable rules or requirements of
any stock exchange, government department or agency or other regulatory
authority, or by requirements of any securities law or regulation or other legal
requirement to disclose any such information or documents, and except to the
extent that such information or documents can be shown to have been (a)
previously known on a nonconfidential basis by such Party, (b) in the public
domain through no fault of such Party or (c) acquired by such Party on a
nonconfidential basis from sources not known by such Party to be bound by any
obligation of confidentiality in relation thereto. Notwithstanding the foregoing
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provisions of this Section 9.5, each Party may disclose such information to its
Agents in connection with the transactions contemplated by this Agreement so
long as such Agents are informed by such Party of the confidential nature of
such information and are required by such Party to treat such information
confidentially, and to certain governmental agencies in connection with the
procurement of the governmental authorizations contemplated by this Agreement.
The obligation of each Party to hold any such information in confidence shall be
satisfied if such Party exercises the same care with respect to such information
as it would take to preserve the confidentiality of its own similar information.
If this Agreement is terminated, each Party will, and will use its reasonable,
good faith efforts to cause its respective Agents to, destroy or deliver to the
other Party, upon request, all documents and other materials, and all copies
thereof, obtained by such Party or on its behalf from the other Party hereto in
connection with this Agreement that are subject to such confidence.
9.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (regardless of
the laws that might otherwise govern under applicable New York principles of
conflicts of law) as to all matters, including but not limited to matters of
validity, construction, effect, performance and remedies.
9.7. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.8. Interpretation. The article and section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement. As used in this Agreement, (a) the term
"person" shall mean and include an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization and a governmental entity
or any department or agency thereof, (b) the term "subsidiary" when used in
reference to any other person shall mean any corporation of which outstanding
securities having ordinary voting power to elect a majority of the Board of
Directors of such corporation are owned directly or indirectly by such other
person, (c) the terms "affiliate" and "parent" shall have the meanings set forth
in Rule 12b-2 of the Exchange Act and (d) the term "Business Day" shall mean any
day other than a Saturday, Sunday or other day on which banks in the State of
New York are authorized or required to be closed..
9.9. Entire Agreement. Subject to the proviso in the final sentence
of this Section, this Agreement, including the documents, schedules and
certificates referred to herein, embody the entire agreement and understanding
of the parties hereto
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in respect of the transactions contemplated by this Agreement. There are no
restrictions, promises, representations, warranties, covenants or undertakings,
other than those expressly set forth or referred to herein or therein. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such transactions; provided, that, notwithstanding the
foregoing, the Confidentiality and Non-Disclosure Agreement, dated September 6,
1996, between the parties hereto shall survive, in full force and effect, the
execution and delivery of this Agreement.
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IN WITNESS WHEREOF, C&W and Buyer have caused this agreement to be
signed by their respective duly authorized officers as of the date first above
written.
PLD TELEKOM INC.
By: /s/ Xxxxx X.X. Xxxx
----------------------------
Name: Xxxxx X.X. Xxxx
Title: President
CABLE AND WIRELESS PLC
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Director, Global Business
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CABLE AND WIRELESS PLC
SCHEDULES TO
STOCK PURCHASE AGREEMENT, DATED APRIL 19, 1998
BETWEEN PLD TELEKOM INC. AND CABLE AND WIRELESS PLC
SCHEDULE 3.4 CONSENTS AND APPROVALS; NO VIOLATION
Approval of the shareholders of CIBBV of the transfer of the
CIBBV Shares
Cable and Wireless will need to file an amendment to its Schedule 13D
filing with the United States Securities and Exchange Commission on
signature of this Agreement, together will all necessary documents.
SCHEDULE 3.5 UNDISCLOSED LIABILITIES
CIBBV is contemplating issuing a letter of guarantee (and which may be
issued prior to the closing of the transactions contemplated by this
Agreement), substantially in the form previously disclosed to PLD Telekom
Inc., in favor of Belcel in respect of the delivery of certain equipment
to Belcel The liability of CIBBV under such guarantee will be stated to be
subject to a cap of no more than 13 billion Belarus roubles.
SCHEDULE 5.1 CONDUCT OF THE BUSINESS
As set out in Schedule 3.5 above.
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PLD TELEKOM INC.
SCHEDULES TO
STOCK PURCHASE AGREEMENT, DATED APRIL 19, 1998
BETWEEN PLD TELEKOM INC. AND CABLE AND WIRELESS PLC
SCHEDULE 4.4 CONSENTS AND APPROVALS
Filing under Xxxx-Xxxxx-Xxxxxx Anti-Trust Improvement Act of 1976 with
respect to the transactions contemplated by the Share Purchase Agreement
between Cable and Wireless plc and News America Incorporated.
Filing with The Nasdaq Stock Market of a Notification Form for
Listing of Additional Shares with respect to the Buyer Shares
Approval by shareholders of PLD Telekom Inc., if required by
Nasdaq
If shareholder approval is required, the filing of preliminary
and definitive proxy statements with the Securities and Exchange
Commission
If required, approval from the holders of PLD's (i) $123,000,000 14%
senior discount notes due 2004, (ii) $26,000,000 9% convertible
subordinated notes due 2006 and (iii) $12,400,000 12% Series A Revolving
Credit Notes due 1998 and $3,100,000 12% Series B Revolving Credit Notes
due 1998
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