Exhibit 10.59
IRREVOCABLE OFFER TO SUBSCRIBE AND PURCHASE SHARES
THIS IRREVOCABLE OFFER TO SUBSCRIBE AND PURCHASE SHARES (the "Offer") is made in
Warsaw, Poland, this 1ST day of July, 1999, by:
BRE BANK S.A., a company duly organized under the laws of the Republic of
Poland, having its seat in Warsaw, Poland, duly represented by Xx. X. Xxxxxxx
("BRE");
for the exclusive benefit of:
NETIA HOLDINGS S.A., a company duly organized under the laws of the Republic of
Poland, having its seat in Warsaw, Poland, duly represented by Meir Srebernik,
as President of the Management Board ("Netia" or "Company").
BRE and Netia shall collectively be referred to herein as the "Parties".
RECITALS
WHEREAS, Netia is seeking to raise new capital through the issuance of 5,500,000
(five million five hundred thousand) series [ ] shares exchangeable into
American Depositary Shares (the "New Shares") to be listed on the National
Association of Securities Dealers Automated Quotations (NASDAQ) as part of an
initial public offering in the United States and other international markets
(the "Offering");
WHEREAS, BRE desires to subscribe for a portion of the New Shares as part of the
Offering in accordance with the terms and conditions described herein;
WHEREAS, BRE desires to purchase a portion of the Company's shares from the
existing shareholders of the Company in accordance with the terms and conditions
described herein;
NOW, THEREFORE, BRE IRREVOCABLY COMMITS AS FOLLOWS:
ARTICLE I
OFFER AND ACCEPTANCE
1.1 OFFER. BRE hereby grants to the Company the irrevocable offer on the
terms and conditions set forth herein (i) to subscribe for a portion
(not less than 384,615 and not more than 454,545) of the New Shares of
the Company as part of the Offering at a price per share to be set in
the Offering (the "Price Per Share") and (ii) to purchase from a third
party or parties (the "Selling Shareholders") designated to BRE in
writing by the Company a portion (not less than 384,615 and not more
than 454,545) of the existing shares of the Company at the Price Per
Share on the terms and conditions set forth herein (the "Offer");
1.2 ACCEPTANCE OF OFFER.
(i) The Company shall accept the Offer by delivering an executed
acceptance letter in the form attached as Schedule 1 hereto (the
"Acceptance Letter"), but only provided that all of the conditions
precedent listed in Section 1.4 hereof (the "Conditions Precedent")
have been satisfied. The delivery of the Acceptance Letter, the
issuance of the New Shares to BRE and the transfer of the shares by the
Selling Shareholders to BRE shall hereinafter be referred to as the
"Closing"; the date of the Closing shall hereinafter be referred to as
the "Closing Date".
(ii) The Company may partially accept the Offer with respect to the
subscription by BRE for the New Shares only, however, the Company
hereby covenants to BRE that it shall exercise its reasonable
commercial efforts to cause the Selling Shareholders to sell the
portion of the existing Company shares to BRE, on the terms and
conditions set forth in this Offer.
1.3 PURCHASE PRICE. In the event of acceptance of the Offer by the Company,
BRE shall (i) subscribe for the New Shares in the amount of USD
10,000,000.00 (Ten Million American Dollars) (the "Aggregate
Subscription Price") and (ii) purchase shares of the Company from the
Selling Shareholders in the amount of USD 10,000,000.00 (Ten Million
American Dollars) (the "Aggregate Purchase Price") for the shares. The
payment of the Aggregate Subscription Price and the Aggregate Purchase
Price shall both be made by a banker's draft/check, or by bank transfer
to the bank accounts designated by the Company and the Selling
Shareholders, respectively, free of any setoffs, withholdings or any
taxes of any nature whatsoever.
1.4 CONDITIONS PRECEDENT. This Offer shall be valid subject to the
satisfaction of all of the following conditions precedent:
(i) the Price Per Share shall not be less than USD 22.00 and not
more than USD 26.00;
(ii) Telia AB (publ.), Trefoil Capital Investors, L.P., Shamrock
Holdings, Inc. and Xxxxxxx Investments Ltd., as shareholders
of the Company, shall enter into a voting agreement with BRE
(the "Voting Agreement") whereby such shareholders shall agree
to (i) vote or cause to be voted all of their shares in the
Company in favor of appointing a member proposed by BRE (the
"BRE Member") to the Supervisory Board of the Company, and
(ii) call a General Shareholders Meeting of the Company as
soon as practicable following the execution of the Voting
Agreement at which meeting the shareholders shall pass a
resolution amending the Company statute to increase the
membership of the Company's Supervisory Board from eleven to
twelve members; and
(iii) BRE shall deliver to the Company and the underwriter in the
Offering an executed lock-up letter (the "Lock-up Letter"),
substantially in the form of Schedule 2 attached hereto;
ARTICLE II
TERMINATION
2.1 This Offer shall automatically expire 100 days from the date of
execution of this Offer (the "Termination Date"), in the event that the
Closing Date does not occur before such Termination Date, PROVIDED that
the Company and BRE may mutually agree in writing to extend the
Termination Date. In the event that the Termination Date is so
extended, such new termination date shall become the Termination Date
for the purposes of this Offer.
ARTICLE III
MISCELLANEOUS
3.1 ARBITRATION. To the fullest extent, if any, permitted by applicable
law, any dispute, controversy or claim arising out of, or relating to
this Offer, or the breach, termination, or invalidity thereof, shall be
settled by the Arbitration Court at the National Chamber of Commerce in
Warsaw (KRAJOWA IZBA GOSPODARCZA). The place of arbitration shall be
Warsaw, and the language to be used in the arbitral proceedings shall
be English.
3.2 NOTICES. All notices and other communications given or made pursuant
hereto shall be in writing and shall be delivered personally, sent by
registered or certified mail (postage prepaid, return receipt
requested) or by a recognized overnight delivery service to the Parties
at the following addresses:
IF TO COMPANY:
Netia Holdings S.A.
Xx. Xxxxxxxx 00
00-000 Xxxxxxxx
Attention: Meir Srebernik
With copy to:
Weil, Gotshal & Xxxxxx
xx. Xxxxxx Xxxxxx 00
00-000 Xxxxxx
Attention: Xxxxx Xxxxxx
IF TO BRE:
BRE BANK S.A.
Xx. Xxxxxxxxxx 00
X.X. Xxx 000
00-000 Xxxxxxxx
Attention: Xxxxxxxx Xxxxxxxxx
With copy to:
Xxxxxxxx Szubielska i Wspolnicy
xx. Xxxxxx Xxxxxx 00
00-000 Xxxxxx
Attention: Xxxxxx Xxxxxxxxx
or at such other addresses as shall be furnished by the Parties by like
notice. A notice or communication shall be deemed to have been given or
made (i) upon delivery of such by overnight courier, or (ii) on the
seventh business day after being otherwise mailed in accordance with
the provisions above.
3.3 SECTION HEADINGS. The Section headings contained in this Offer are for
reference purposes only and shall not affect the meaning or
interpretation of this Offer.
3.4 GOVERNING LAW. This Offer shall be governed by, construed, accepted and
enforced in accordance with the laws of the Republic of Poland, without
giving effect to conflicts of law principles thereof.
3.5 ASSIGNMENT. This Offer may be accepted by the Company in connection
with the subscription by BRE for the New Shares, and by the Selling
Shareholders with respect to the purchase by BRE of the existing shares
of the Company.
3.6 COUNTERPARTS. For the convenience of the Parties, any number of
counterparts of this Offer may be executed by the Parties hereto, and
each executed counterpart shall be deemed to be an original instrument.
3.7 STAMP DUTY. In the event any stamp duties or fees ("Stamp Duties")
shall become due to the Polish State Treasury as a result of entering
into or carrying out any of the transactions contemplated in this
Offer, the Parties hereby agree that any such Stamp Duties shall be the
joint responsibility of BRE and the Selling Shareholders and shall be
paid for fifty (50) per cent by each of BRE and the Selling
Shareholders.
IN WITNESS WHEREOF, the undersigned have executed this Irrevocable Offer to
Subscribe and Purchase Shares on this 1st day of July, 1999.
BRE BANK S.A.
By: /s/ X. Xxxxxxx
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Name: X. Xxxxxxx
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Title: Vice President
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CONFIRMED AND ACKNOWLEDGED AS RECEIVED BY
NETIA HOLDINGS S.A.
By: /s/ Meir Srebernik
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Name: Meir Srebernik
----------------------------
Title: President
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SCHEDULE 1
LETTER OF ACCEPTANCE
BRE BANK S.A.
Xx. Xxxxxxxxxx 00
X.X. Xxx 000
00-000 Xxxxxxxx
Attention: Xxxxxxxx Xxxxxxxxx
Gentlemen:
Pursuant to Section 1.2 of the Irrevocable Offer to Subscribe and
Purchase Shares, dated July 1, 1999, executed by BRE BANK S.A. (the "Offer") and
confirmed as received by NETIA HOLDINGS S.A., we hereby accept the Offer to
issue the New Shares (defined in the Offer) to BRE BANK S.A. on the terms and
conditions set forth in the Offer and hereby designate, pursuant to the
provisions of Section 1.1 of the Offer, the following third parties as the
Selling Shareholders to sell shares of the Company to BRE BANK S.A. on the terms
and conditions set forth in the Offer:
The Selling Shareholders are:
1._________________;
2._________________;
3._________________;
Dated and signed on this __ day of ____, 1999, by:
NETIA HOLDINGS S.A.
By:
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Name:
----------------------------
Title:
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SCHEDULE 2
FORM OF LOCK-UP LETTER
