EXECUTED COPY
TELESYSTEM INTERNATIONAL WIRELESS INC.
as Company
and
THE INVESTORS IDENTIFIED WITHIN
as Investors
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THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
May 6, 2004
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THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT, dated as of May 6, 2004
made by and among the Investors identified in Schedule "A" (each an "INVESTOR"
and collectively, the "INVESTORS") and Telesystem International Wireless Inc.
(the "COMPANY")
RECITALS:
(1) Certain of the Investors and the Company executed an investors' rights
agreement dated November 29, 2001, which was subsequently amended and
restated on 24 January 2002 and amended on 25 September 2003 (referred
to collectively as the "ORIGINAL INVESTOR RIGHTS AGREEMENT");
(2) One of the original parties to the Original Investor Rights Agreement,
Capital Communications CDPQ Inc., disposed of all its shares in the
Company on 25 September 2003 and forfeited all rights thereunder;
(3) Pursuant to a Share Transfer Agreement by and among MobiFon Holdings
B.V., the Company and EEIF Melville B.V. dated 10 February 2004 and a
Share Sale and Purchase Agreement by and among the Company, Clearwave
N.V., Emerging Europe Infrastructure Fund C.V. and EEIF Czech N.V.
dated 10 February 2004, EEIF acquired, for valuable consideration,
common shares of the Company and became parties to an amended and
restated version of the Original Investor Rights Agreement (the "SECOND
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT");
(4) Pursuant to certain arrangements between Telesystem Ltd. and its
affiliates and the Caisse de depot et placement du Quebec and its
affiliates, the Caisse de depot et placement du Quebec and Capital
Communications CDPQ Inc. became shareholders of the Company on May 6,
2004;
(5) As a result of the transactions described above, it is desirable that
the Second Amended and Restated Investor Rights Agreement be further
amended and restated.
(6) By agreeing to become a Party to this Agreement, each Investor has
agreed that it will cause all voting Shares (as defined herein)
beneficially owned or controlled by it to be voted in accordance with
the terms set out below.
In consideration of the foregoing and the mutual representations, warranties,
agreements and covenants contained herein and other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the Parties agree as follows:
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ARTICLE 1
INTERPRETATION
SECTION 1.1 AMENDMENT AND RESTATEMENT; DEFINITIONS
(a) With immediate effect, the Second Amended and Restated Investor
Rights Agreement is hereby amended and restated so that it will read and be
construed for all purposes as set out in this Agreement.
(b) Unless otherwise provided for herein, in this Agreement the
following terms shall be given the following meanings:
"AFFILIATE" means, save as follows, any Person directly or indirectly
controlling, controlled by or under common control with any other Person. For
the purpose of this definition, "CONTROL" means the power to direct (by contract
or otherwise) the operations, policies or management of a Person.
Notwithstanding any provision of this Agreement to the contrary, X.X. Xxxxxx
Xxxxx & Co. and its subsidiaries and affiliates (other than JPMP and the
subsidiaries of JPMP) (all of whom are collectively referred to as the "OTHER XX
XXXXXX ENTITIES") shall be deemed not to be Affiliates of JPMP and under no
circumstances whatsoever shall JPMP be responsible or liable hereunder for the
acts or omissions of the Other XX Xxxxxx Entities.
"AGREEMENT" means this Third Amended and Restated Investor Rights Agreement and
all schedules and instruments in amendment or confirmation of it; "HEREOF",
"HERETO" and "HEREUNDER" and similar expressions mean and refer to this
Agreement and not to any particular Article, Section, Subsection or other
subdivision; "ARTICLE", "SECTION", "SUBSECTION" or other subdivision of this
Agreement followed by a number refers to the specified Article, Section,
Subsection or other subdivision of this Agreement.
"BOARD" means the board of directors of the Company.
"BUSINESS PLAN" means the business plan of the Company and its Subsidiaries (on
a consolidated basis) to be prepared by senior management of the Company, which
business plan (and any amendments, revisions or other modifications thereto)
shall be submitted to the Board for prior approval in accordance with Section
3.2 from time to time.
"CBCA" means the CANADA BUSINESS CORPORATIONS ACT, as in effect on the date
hereof.
"CDPQ" means the Caisse de depot et placement du Quebec, Capital Communications
CDPQ Inc. and any of their respective Affiliates or successors, acting
collectively.
"COMPANY" has the meaning specified in the preamble hereof.
"CO-SALE GROUP" has the meaning specified in Section 6.1(1).
"CO-SALE OFFEREE" has the meaning specified in Section 6.1(1).
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"CO-SALE OFFEROR" has the meaning specified in Section 6.1(1).
"CO-SALE NOTICE" has the meaning specified in Section 6.1(1).
"EEIF" means EEIF Melville B.V., Emerging Europe Infrastructure Fund C.V. and
EEIF Czech N.V., acting collectively.
"INVESTORS" means, collectively, the Persons identified in Schedule "A",
together with their Affiliates, and "INVESTOR" means any one of them.
"JPMP" means X.X. Xxxxxx Partners (BHCA), L.P., JPMP TIW EH, LP., AOF Investment
N.V., CEA Investment N.V. and CAIP Investment N.V., acting collectively.
"MINIMUM CONDITION 1" has the meaning specified in Section 3.2(1)(d).
"MINIMUM CONDITION 2" has the meaning specified in Section 3.2(1)(e).
"NOMINATING PARTY" has the meaning specified in Section 3.2(1)(b).
"NON-VOTING SHARES" means the non-voting participating preferred Shares of the
Company.
"OFFERED SHARES" has the meaning specified in Section 6.1(1).
"ORGANIZATIONAL DOCUMENTS" has the meaning specified in Section 5.1.
"PARTIES" means, collectively, each of JPMP, UFI, CDPQ, EEIF, Telesystem and the
Company, and any other Person who may at any time become a party to this
Agreement pursuant to the terms hereof, and "PARTY" means any one of them.
"PERMITTED TRANSFER" means (i) any pledge, hypothecation or other encumbrance on
any of the Shares of an Investor, provided such Person or Persons in favour of
whom such Shares have been so pledged, hypothecated or otherwise encumbered
signs a joinder to this Agreement agreeing to become a party to, to be bound by,
to comply with and to be subject to the terms and conditions hereof, (ii) one or
more sales by an Investor in any given 12-month period, on The Toronto Stock
Exchange and/or NASDAQ and/or any other nationally recognized securities market
on which the Shares are traded, of not more than 5% of the issued and
outstanding Shares of the Company (based on the number of Shares issued and
outstanding at the commencement of such period) and only if such transactions
are otherwise exempt from the take-over bid rules under applicable corporate and
securities laws and regulations, (iii) any Transfer of Shares between any
Investor and its Subsidiaries or Affiliates or to any other Investor or such
Investor's Subsidiaries or Affiliates, or (iv) any Transfer of Shares under a
non-exempt take-over bid under applicable corporate and securities laws and
regulations.
"PRO RATA AMOUNT" means, as of any given date and with respect to any Investor,
the quotient obtained by dividing (i) the number of Shares then held by such
Investor, by (ii) the aggregate number of Shares then held by all Investors,
assuming in each case that, in the calculation of
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such number of Shares, all securities held by Investors which by their terms are
convertible or exercisable into or exchangeable for Shares, have been so
converted, exercised or exchanged on such date.
"REGULATORY PROBLEM" has the meaning specified in the Regulatory Sideletter.
"REGULATORY SIDELETTER" has the meaning specified in Section 5.1.
"SHARES" has the meaning specified in Section 2.1, and more particularly
described in Article 2.
"STRATEGIC DIRECTION" means the maximization and realization of shareholder
value of the Company and its Subsidiaries (on a consolidated basis) in the
medium term and in a manner consistent with the Business Plan, and in the event
such value is realized, the distribution of such value to all of the
shareholders of the Company.
"SUBSIDIARY" has the meaning specified in the CBCA, as in effect on the date
hereof.
"TAG-ALONG NOTICE" has the meaning specified in Section 6.1(3).
"TELESYSTEM" means Telesystem Ltd. and its wholly-owned subsidiary, 0000-0000
Xxxxxx Inc., acting collectively.
"THIRD PARTY" means any Person that is not (i) the Company (ii) an Investor or
(iii) any of their respective Affiliates.
"TRANSFER" means to sell, transfer, pledge, hypothecate, encumber, assign or
otherwise dispose of, either voluntarily or involuntarily and with or without
consideration.
"UFI" means U.F. Investments (Barbados) Ltd.
SCHEDULES
SCHEDULE "A" Investors
SCHEDULE 3.2 Major Decisions
SCHEDULE 4.1(A) Shares
SCHEDULE 5.1 Regulatory Sideletter
ARTICLE 2
SHARES
SECTION 2.1 SHARES
For purposes of this Agreement, "SHARES" includes any outstanding equity
securities of the Company (or of a successor or continuing corporation of the
Company) or of any corporation into whose shares such equity securities of the
Company (or of a successor or continuing corporation of the Company) may be
consolidated, subdivided, exchanged, converted, changed, reclassified or
redesignated provided, however, that except as specifically provided in the
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definition of "PRO RATA AMOUNT", "Share" shall not include unexercised options,
warrants or convertible securities.
SECTION 2.2 APPLICATION OF AGREEMENT
For purposes of this Agreement, all "SHARES" beneficially owned by an Investor
on the date hereof and set forth in Schedule 4.1(a), and any Shares beneficially
acquired, directly or indirectly, by any Investor, or Shares over which any
Investor has control, at any time and from time to time hereafter until the
expiry or other termination of this Agreement shall be subject to the terms and
conditions of this Agreement (including without limitation, the representations
and warranties contained in Article 4 hereof). To the extent that a Person who
is controlled by such Investor shall at any time and from time to time
beneficially acquire, directly or indirectly, any such Shares, such Investor
shall cause such controlled Person to agree to sign a joinder hereto and to
comply with the terms hereof, effective as of the date of such acquisition.
SECTION 2.3 BENEFICIAL OWNERSHIP
For purposes of this Agreement, all references to "SHARES" owned by any Investor
shall include all Shares owned legally or beneficially; all Shares over which
control is exercised; and all Shares owned or controlled by any Subsidiary or
other entity controlled by such Investor, in each case whether such interest is
held directly or indirectly, including without limitation subsequently acquired
Shares referred to in Section 2.2.
ARTICLE 3
VOTING OF SHARES AND RELATED MATTERS
SECTION 3.1 COMMENCEMENT AND DURATION
(1) The rights and obligations of (i) each Investor that beneficially owns
Shares and (ii) the Company, pursuant to this Article 3 shall be
effective as of and from the date hereof and shall continue to be
enforceable by or on behalf of (in the case of rights) and to be
binding upon and enforceable against (in the case of obligations) such
Investor and the Company:
(a) until this Agreement is terminated by mutual agreement of all
Investors bound by the Agreement at that time; or
(b) with respect to an Investor, until such Investor holds less than
7% of the issued and outstanding Shares (including Non-Voting
Shares) and such Investor has elected by notice in writing to
the other Parties not to continue to be bound by this Agreement;
or
(c) until only one Investor is bound by the Agreement; or
(d) until the Investors bound by the Agreement own, in aggregate,
less than one third (1/3) of the issued and outstanding Shares
(including Non-Voting Shares).
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SECTION 3.2 VOTING OF SHARES
During the term of this Agreement, each Investor and the Company agree as
follows:
(1) BOARD MATTERS
(a) SIZE OF BOARD OF DIRECTORS: The Board is currently established
to have eight (8) members and the Company shall not increase or
decrease the size of the Board, without the prior written
consent of each Investor, which consent may be arbitrarily
and/or unreasonably withheld.
(b) ENTITLEMENT TO NOMINATE BOARD MEMBERS:
(i) Each of JPMP, UFI, EEIF, Telesystem and CDPQ (each such
Persons or group of Persons a "NOMINATING PARTY")
shall, subject to the requirements of Section
3.2(1)(c), Section 3.2(1)(h) and Section 3.2(1)(i),
have the right to nominate candidates for appointment
or election to the Board as follows:
CDPQ 1 Board member
Telesystem 1 Board member
JPMP 2 Board members
XXX 0 Board member
EEIF 1 Board member
(ii) Subject to (y) the requirements of the CBCA and the
rules of The Toronto Stock Exchange and NASDAQ (or the
NASD), as applicable, and (z) Section 3.2(1)(b)(iii),
the Board shall have the right to nominate for election
or appointment to the Board any other individual
persons required to bring the number of directors on
the Board to eight (8), provided, however, that such
other individual persons so nominated for election or
appointment by the Board shall at all times consist of,
to the extent practicable, persons who (i) are
independent of Company management, the Investors and
the Company, and (ii) possess substantial industry or
other experience relevant or applicable to the
Strategic Direction; and
(iii) If at any time during the term of this Agreement in
connection with a transaction or series of transactions
approved by the Board in accordance with Section 3.2(2)
(and in particular, Part (A) of Schedule 3.2), a Third
Party has been granted the right to nominate an
individual to the Board, the Board shall exercise its
rights in Section 3.2(1)(b)(ii) to appoint or nominate
for election to the Board the individual nominated by
such Third Party, provided such Third Party executes a
joinder to this Agreement agreeing to be bound by the
terms and conditions hereof.
(c) MINIMUM CONDITIONS: Until this Agreement terminates in
accordance with Section 3.1, each Nominating Party shall have
the right to nominate:
(i) one individual person for appointment or election to
the Board if
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and whenever and for so long as such Nominating Party
satisfies Minimum Condition 1; and
(ii) one additional individual person for appointment or
election to the Board if and whenever and for so long
as such Nominating Party satisfies Minimum Condition 2.
(d) MINIMUM CONDITION 1: For purposes of Section 3.2(1)(c)(i),
Minimum Condition 1 will be satisfied by a Nominating Party if
and whenever and for so long as it owns at least (A) 7% of the
issued and outstanding Shares (including Non-Voting Shares) of
the Company and, for purposes of determining such percentage,
any dilution attributable to the issuance by the Company of
Shares either to Deraso Holdings B.V. and Deraso Holdings B.V.'s
shareholders and affiliates in exchange for shares in Mobifon
S.A. or the proceeds of which are used principally by the
Company to acquire such shares in Mobifon S.A., shall be
disregarded, and (B) in the case of Telesystem, 5% of the issued
and outstanding Shares (including Non-Voting Shares) of the
Company.
(e) MINIMUM CONDITION 2: For purposes of Section 3.2(1)(c)(ii),
Minimum Condition 2 will be satisfied by a Nominating Party if
and whenever and for so long as it owns at least 13% of the
issued and outstanding Shares (including Non-Voting Shares) of
the Company.
(f) ADJUSTMENTS: The Parties acknowledge and agree that the number
of Shares (including Non-Voting Shares) referred to in Section
3.2(1)(d) and Section 3.2(1)(e) shall be equitably adjusted as
necessary to reflect any consolidation, subdivision,
reclassification, capital reorganization of or other change to
the outstanding Shares (including Non-Voting Shares), or any
payment by the Company of a stock dividend, in each case
occurring after the date hereof. Such adjustment shall be
effected by the Company upon the consent of all of the
Investors, failing which it shall be decided by a nationally
recognized independent firm of chartered accountants in Canada,
whose decision shall be final and binding upon the Parties.
(g) REQUIRED VOTING: Each Investor covenants and agrees with the
other Investors to vote all of its Shares in favour of the
nominees put forward for election by each Nominating Party and
the Board in accordance with Section 3.2(1)(b) at each of the
Company's duly constituted shareholders' meetings at which
members of the Board are to be elected, and each Investor and
the Company shall use their respective best efforts to cause any
vacancy on the Board to be filled by a nominee of the Nominating
Party, or the Board, as the case may be, entitled to fill that
vacancy. For greater certainty, nothing in this Agreement shall
require a Party to grant a proxy in favour of another Party or
to management of the Company.
(h) DIRECTOR QUALIFICATIONS: Only individuals qualified to act as
directors of the Company under applicable law, except as to
Canadian residency, shall be nominated to the Board by any
Nominating Party or the Board. Unless otherwise
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agreed by JPMP, EEIF and UFI, Telesystem, CDPQ and the Board
shall put forward among their nominees such number of resident
Canadians as may be required to satisfy the resident Canadian
director requirements under the CBCA.
(i) BOARD VACANCIES: In the event that there shall be any vacancy on
the Board resulting from the resignation, death or incapacity of
a director selected hereunder by a Nominating Party or the
Board, or if a nominee of a Nominating Party or the Board
hereunder fails to stand for election or re-election as director
for whatever reason, the Parties shall take whatever reasonable
action is within their control to appoint or elect or cause to
be appointed or elected to the Board as soon as possible a
successor or a nominee, as the case may be, selected by such
Nominating Party or the Board, as the case may be.
(j) CONTINUED PARTICIPATION ON BOARD: If a Nominating Party does not
satisfy Minimum Condition 1, it may nevertheless request and the
Board shall consider, whether a nominee of such Nominating Party
will be permitted to serve as a member of the Board. For the
avoidance of doubt, nothing in this Section 3.2(1)(j) shall
oblige any Investor, the Company or the members of the Board to
vote for or appoint any such nominee to the Board.
(2) MAJOR DECISIONS
All decisions of the Board, save as follows, shall be decided by a
majority of votes cast (or by such greater percentage of votes as may
be required by the CBCA) by the directors present and eligible to cast
votes at a duly constituted meeting of the Board. The taking of any of
the decisions or actions or the implementation of any of the matters
listed or described in Schedule 3.2 shall, in addition to any other
approval required by law, require the approval of (A) in the case of
those items listed or described in part (A) of Schedule 3.2, not less
than two - thirds (2/3) of the votes cast by the directors present and
eligible to cast votes at a duly constituted meeting of the Board, and
(B) in the case of those items listed or described in part (B) of
Schedule 3.2, not less than three - quarters (3/4) of the votes cast by
the directors present and eligible to cast votes at a duly constituted
meeting of the Board.
For greater certainty, in respect of all references in this Section
3.2(2) and Schedule 3.2 to minimum numbers of votes to be cast at Board
meetings which would, with respect to any such vote, result in a
fraction of a vote, such fraction shall be deemed to be rounded up to
the next highest whole vote.
The Company agrees that it will not, and each Investor agrees that it
will use its best efforts to cause the Company not to, act on any
decision of the Board which has not been passed in accordance with this
Section 3.2(2).
(3) CHAIRPERSON
The Board will appoint as Chairperson of the Board a nominee of
Telesystem. In no
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circumstances shall the Chairperson of the Board have a casting vote.
SECTION 3.3 CONVERSION OF NON-VOTING SHARES
During the term of this Agreement, any Investor holding Non-Voting Shares shall,
prior to any conversion thereof (in whole or in part) (a "NVS CONVERSION") into
common or other voting Shares of the Company in accordance with the terms
thereof, deliver to the Company and the other Investors a notice (the "NVS
CONVERSION NOTICE"), stipulating the number of Non-Voting Shares to be converted
under the NVS Conversion, together with the proposed closing date thereof. Such
Investor shall consult with the other Investors and the Company in order to
collectively determine whether such NVS Conversion (i) would trigger a Potential
Group Determination, as defined in the Organizational Documents, or (ii) would
create a Regulatory Problem. If within ten days of receipt of the NVS Conversion
Notice the Investors and the Company have not agreed with such Investor to
permit the NVS Conversion, such matter shall be finally determined by a
committee of the Board consisting of those independent members designated
pursuant to Section 3.2(1)(b)(ii).
SECTION 3.4 VOTING RIGHTS OTHERWISE UNAFFECTED.
Other than in respect of the matters referred to in this Article 3, this
Agreement shall have no effect on any voting rights attaching to the Shares and,
for greater certainty, each Investor shall otherwise retain the right to consent
to or to vote in person or by proxy the Shares, on any item of business,
resolution, matter, question or proposition whatsoever that may come before the
shareholders of the Company in its sole discretion.
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 4.1 REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
(1) Each Investor, severally and not jointly and severally and not
solidarily, represents and warrants as the date hereof (and in respect
of itself and none of the other Investors) as follows to the other
Investors and acknowledges and confirms that each such other Investor
is relying on such representations, warranties and covenants in
connection with the entering into of this Agreement:
(a) OWNERSHIP OF SHARES, ETC. - Schedule 4.1(a) lists, in respect of
each Investor, the number of Shares of the Company of which such
Investor is, on the date hereof, the beneficial owner, directly
or indirectly, or on which it has direction and control over or
otherwise has the right to vote or deal with, or direct the
voting or dealing with. Except as disclosed on Schedule 4.1(a),
such Investor does not own on the date hereof directly or
indirectly, or otherwise has direction and control over or the
right to vote or deal with, or direct the voting or dealing
with, any other voting securities or securities convertible or
exchangeable or exercisable into voting securities of the
Company. In respect of any Investor, references in this Section
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4.1(1)(a) to "direction" or "directing the voting or dealing
with" shall be limited to those circumstances in which such
Investor possesses or enjoys an affirmative right, pursuant to
an agreement, to direct votes of or otherwise deal with common
shares of the Company.
(b) NO VOTING ARRANGEMENTS - Except as set out in this Agreement,
such Investor has no written or oral agreement, or any right or
privilege (whether by Law, pre-emptive or contractual) capable
of becoming an agreement, relating to or restricting the
exercise of any of the voting rights attaching to the Shares
and, for greater certainty, such Investor has and will have with
respect to after-acquired Shares the unfettered and absolute
right to exercise the votes attaching to such Investor's Shares.
(c) NO CONTRAVENTION - The fulfillment of such Investor's
obligations hereunder does not and will not breach, contravene
or constitute a default under any contract, agreement or
instrument to which such Investor is a party or by which it is
bound.
(d) NO ACTIONS - Such Investor knows of no action, proceeding or
investigation, pending or threatened, involving such Investor
which places in question the validity or enforceability of this
Agreement.
SECTION 4.2 REQUESTS
Each Investor (a "REQUESTING INVESTOR") has the right, exercisable at any time,
to request in writing from each other Investor a disclosure, by way of statutory
declaration:
(a) as to the number of Shares beneficially owned, directly or
indirectly, by it and any of its Subsidiaries or Affiliates; and
(b) if a Board nominee of the Requesting Investor has not been
elected in accordance with the terms hereof at a duly
constituted shareholders' meeting, as to the manner in which
such other Investor's Shares were voted at such meeting (but
only in respect of votes cast to elect directors),
and such Investor shall provide such information in writing, within five (5)
Business Days of receipt of such request.
ARTICLE 5
REGULATORY MATTERS (JPMP)
SECTION 5.1 CO-OPERATION OF OTHER INVESTORS
Subject to Section 5.3, each Investor agrees to cooperate with the Company in
all reasonable respects in complying with the terms and provisions of the letter
agreement between the Company and JPMP, a duly executed copy of which is
attached as Schedule 5.1, regarding regulatory matters (the "REGULATORY
SIDELETTER"), including without limitation voting to approve
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any amendment to the Company's Articles of Incorporation, the Company's By-laws
or other comparable corporate documents (collectively the "ORGANIZATIONAL
DOCUMENTS") or this Agreement in a manner reasonably acceptable to UFI,
Telesystem, EEIF, CDPQ and JPMP or any Affiliate of JPMP entitled to make such
request pursuant to the Regulatory Sideletter in order to remedy a Regulatory
Problem (as defined in the Regulatory Sideletter) in the manner provided in the
Regulatory Sideletter. Anything contained in this Section 5.1 to the contrary
notwithstanding, no Investor shall be required under this Section 5.1 to take
any action that would adversely affect in any material respect such Investor's
rights, obligations or liabilities under this Agreement or as a shareholder of
the Company.
SECTION 5.2 COVENANT NOT TO AMEND
Subject to Section 5.3, the Company and each Investor (other than JPMP) agree to
provide JPMP with notice of its or their intention to amend, or effectively
amend by permanently foregoing its rights under, the voting or other provisions
of any Organizational Document or this Agreement and agree not to amend, or
effectively amend by permanently foregoing its rights under, the voting or other
provisions of any Organizational Document or this Agreement until JPMP
determines that such amendment, or such effective amendment, would not itself,
or would not following the exercise by JPMP or its Affiliates of commercially
reasonable efforts, cause JPMP or any of its Affiliates to have a Regulatory
Problem (as defined in the Regulatory Sideletter). JPMP agrees to notify the
Company and each other Investor as to whether or not it would have a Regulatory
Problem within ten (10) Business Days after JPMP has received notice of such
proposed amendment or such effective amendment.
SECTION 5.3 REIMBURSEMENT
JPMP shall be fully responsible for and shall reimburse each of the Company,
UFI, EEIF, Telesystem and CDPQ, as the case may be, for all of their respective
costs and documented and incurred losses or expenses associated with (i) any
action requested to be taken by JPMP, or (ii) any action caused to be taken by
JPMP, in each case by the Company, UFI, EEIF, Telesystem and CDPQ respectively,
in connection with or pursuant to Section 5.1 or Section 5.2.
ARTICLE 6
CO-SALE RIGHTS
SECTION 6.1 CO-SALE RIGHTS
(1) If an Investor, either individually or as part of a group (the "CO-SALE
GROUP") of two or more Investors acting jointly and in concert (such
individual Investor or Co-Sale Group member being the "CO-SALE
OFFEREE") proposes to Transfer, or receives an offer to Transfer (that
it wishes to accept), to any Third Party (the "CO-SALE OFFEROR") Shares
of such Investor that either alone, or together with any other Co-Sale
Offeree, represent more than 15% of the total equity securities of the
Company issued and outstanding as of the date of such offer, the
Co-Sale Offeree, either for itself or on behalf of the Co-Sale Group,
shall, at least ten (10) Business Days before such Transfer, deliver a
notice (the "CO-SALE NOTICE") to each other Investor that sets forth:
(A) the number of Shares to
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which the offer relates (the "OFFERED SHARES") and the name and address
of the Co-Sale Offeror, (B) the name and address of the proposed
Co-Sale Offeree(s), (C) the proposed amount and type of consideration
(including without limitation, if the consideration consists in whole
or in part of noncash consideration, such information available to the
Co-Sale Offeree(s) as may be reasonably necessary for the Company and
each Investor to properly analyze the economic value and investment
risk of such non-cash consideration) and (D) the terms and conditions
of payment offered by the Co-Sale Offeror; provided, however, that such
Co-Sale Notice shall indicate that the Co-Sale Offeror has been
informed of the co-sale rights provided for in this Section 6.1(1) and
has agreed in writing to purchase Shares in accordance with the terms
hereof.
(2) No Co-Sale Offeree shall Transfer any Shares to the Co-Sale Offeror
unless each Investor (other than any Co-Sale Offeree) who desires to do
so is permitted to Transfer its respective Pro Rata Amount (based upon
the aggregate number of Shares of the Company outstanding at such time
and held by all Investors) of the aggregate number of Shares to which
the Co-Sale Offer relates.
(3) Within ten (10) Business Days after delivery of the Co-Sale Notice,
each Investor may elect to participate in the proposed Transfer by
delivering to such Co-Sale Offeree a notice (the "TAG-ALONG NOTICE")
specifying the number of Shares (up to its Pro Rata Amount) with
respect to which each Investor shall exercise its rights under this
Section 6.1(3).
(4) Any Shares specified in a Tag-Along Notice shall be Transferred on the
same terms and conditions as are set forth in the Co-Sale Notice in
respect of the Offered Shares.
(5) The provisions of this Article 6 (i) shall not apply to Permitted
Transfers and (ii) shall apply to all Shares including Non-Voting
Shares.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1 ASSIGNMENT; SUCCESSORS
This Agreement shall not be assigned by any Investor without the prior written
consent of the other Parties, except that each Investor may assign its rights
and obligations hereunder to any Subsidiary or Affiliate of such Investor which
owns or receives Shares, provided that such Subsidiary or Affiliate agrees to be
bound by the terms hereof. Subject as aforesaid, this Agreement shall be binding
upon and enure to the benefit of the Investors and their respective heirs,
executors, administrators, successors and permitted assigns, as the case may be.
The Company shall not, directly or indirectly, enter into any merger,
consolidation or reorganization in which the Company shall not be the surviving
entity unless all the Investors shall, prior to such merger, consolidation or
reorganization, have agreed in writing upon the rights and obligations, if any,
which will govern their relationship as security holders of the
13
surviving entity.
SECTION 7.2 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
Quebec and the federal laws of Canada applicable therein. Any legal action or
proceeding with respect to this Agreement may be brought exclusively in the
courts of the Province of Quebec. Each Party hereby irrevocably accepts for
itself and in respect of its property and assets, generally and unconditionally
the jurisdiction of the aforesaid courts.
SECTION 7.3 SEVERABILITY
Any provision or provisions of this Agreement which contravene any applicable
law or which are found to be unenforceable shall, to the extent of such
contravention or unenforceability, be deemed severable and shall not cause this
Agreement to be held invalid or unenforceable or affect any other provision or
provisions of this Agreement.
SECTION 7.4 COUNTERPARTS
This Agreement may be executed in any number of counterparts, including
counterparts by facsimile, and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
SECTION 7.5 SPECIFIC PERFORMANCE
Each Party hereby recognizes and acknowledges that a breach by it of any
covenants or agreements contained in this Agreement will cause the other Parties
to sustain damages for which they would not have adequate remedy at law for
money damages, and, therefore, each Party agrees that in the event of any such
breach, the aggrieved Party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or in
equity.
SECTION 7.6 NOTICES
(1) Any notice, direction or other communication to be given under this
Agreement shall be in writing and given by delivering it or sending it
by telecopy or other similar form of recorded communication but not by
e-mail, addressed as follows:
(a) If to the Company, to it at:
1250 blvd. Xxxx-Xxxxxxxx Xxxx
00xx Xxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Chief Financial Officer, and
the General Counsel and Secretary
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
14
(b) If to UFI, to it at:
U.F. Investments (Barbados) Ltd.
The Ernst & Young Building
Xxxx Xxxx Bay Street
Bridgetown, Barbados
Attention: The Managing Director
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(c) with a copy to:
Xxxxxxxxx Whampoa Limited
22nd Floor, Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxx Xxxx
Xxxxxxxxx: Company Secretary
Telephone: (000) 0000-0000
Telecopier: (000) 0000-0000
(d) if to JPMP,to it at:
c/o X.X. Xxxxxx Partners, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Official Notices Clerk
(FBO: Xxxxxxx X. Xxxxxx)
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(e) with a copy to:
X'Xxxxxx & Xxxxx LLP
Times Square Tower
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(f) if to Telesystem, to it at:
0000 Xxxx-Xxxxxxxx Xxxx. Xxxx
00xx Xxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Senior Vice-President and CFO
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
15
(g) if to EEIF, to it at:
Emerging Markets Partnership (Europe) Limited
000, Xxxxxxxx Xxxx
Xxxxxx XX0 0XX
Attention: Xxxxx Xxxxxx
Telephone: x00 00 00000000
Telecopier: x00 00 00000000
with a copy:
Xxxxxx, Xxxx & Xxxxxxxx LLP
Xxxxxxxxx Xxxxx
0-0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Xxxxx XX XxXxxxx
Telephone: x00 00 0000 0000
Telecopier: x00 00 0000 0000
(h) if to CDPQ, to it at:
Caisse de depot et placement du Quebec
c/o CDP Capital Amerique
0000, Xxxxx Xxxx-Xxxx-Xxxxxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0, Xxxxxx
Attention: Vice-President, Investments Communications
Telephone: 000-000-0000
Telecopier: 000-000-0000
with a copy to:
XxXxxxxx Xxxxxxxx LLP
0000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxx
Any such communication shall be deemed to have been validly and
effectively given (i) if personally delivered, on the date of such
delivery if such date is a Business Day and such delivery was made
prior to 4:00 p.m. (local time in the place of the recipient) and
16
otherwise on the next Business Day, or (ii) if transmitted by telecopy
or similar means of recorded communication on the Business Day
following the date of transmission. Any Party may change its address
for service from time to time by notice given in accordance with the
foregoing and any subsequent notice shall be sent to such Party at its
changed address.
SECTION 7.7 LANGUAGE
The Parties acknowledge and are satisfied that this Agreement be initially drawn
up in the English language. Notwithstanding the foregoing, the Company
undertakes to have this Agreement translated into the French language and to
circulate such translated version among all Investors forthwith following the
date hereof and in any event by no later than May 27, 2004, whereupon all
Investors shall have 15 days to comment thereon in writing to the Company and
all other Investors (such comments to be limited to issues of translation only
and not of substance). Upon agreement as to the final French translation of this
Agreement by the Company and all Investors, each of whom shall act diligently
and in good faith in respect thereof, the English and French versions of this
Agreement shall together be deemed to constitute one and the same agreement.
IN WITNESS WHEREOF the Parties have caused this Third Amended and Restated
Investor Rights Agreement to be executed effective as described herein.
TELESYSTEM INTERNATIONAL WIRELESS INC.
By:
--------------------------------------------
Authorized Signing Officer
By:
--------------------------------------------
Authorized Signing Officer
U.F. INVESTMENTS (BARBADOS) LTD.
By:
--------------------------------------------
Authorized Signing Officer
17
X.X. XXXXXX PARTNERS (BHCA), L.P.
By: JPMP Master Fund Manager, L.P.
its General Partner
By: JPMP Capital Corp.
its General Partner
By:
--------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
JPMP TIW EH, L.P.
By: JPMP TIW EH GP, LLC
its General Partner
By: X.X. Xxxxxx Partners (BCHA), L.P.
its Sole Member
By: JPMP Master Fund Manager, L.P.
its General Partner
By: JPMP Capital Corp.
its General Partner
By:
--------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
AOF INVESTMENT N.V.
By:
--------------------------------------------
Name:
Title:
CEA INVESTMENT N.V.
By:
--------------------------------------------
Name:
Title:
18
CAIP INVESTMENT N.V.
By:
--------------------------------------------
Name:
Title:
XXXXXX XX XXXXX XX XXXXXXXXX XX XXXXXX
By:
--------------------------------------------
Authorized Signing Officer
By:
--------------------------------------------
Authorized Signing Officer
CAPITAL COMMUNICATIONS CDPQ INC.
By:
--------------------------------------------
Authorized Signing Officer
By:
--------------------------------------------
Authorized Signing Officer
EEIF MELVILLE B.V.
By:
--------------------------------------------
Authorized Signing Officer
By:
--------------------------------------------
Authorized Signing Officer
EMERGING EUROPE INFRASTRUCTURE FUND C.V.
By:
--------------------------------------------
Authorized Signing Officer
EEIF CZECH N.V.
By:
--------------------------------------------
Authorized Signing Officer
By:
--------------------------------------------
Authorized Signing Officer
19
TELESYSTEM LTD.
By:
--------------------------------------------
Authorized Signing Officer
0000-0000 XXXXXX INC.
By:
--------------------------------------------
Authorized Signing Officer
20
SCHEDULE "A"
INVESTORS
UFI
U.F. Investments (Barbados) Ltd.
JPMP
X.X. Xxxxxx Partners (BCHA), L.P.
JPMP TIW EH, L.P.
AOF Investment N.V.
CEA Investment N.V.
CAIP Investment N.V.
TELESYSTEM
Telesystem Ltd.
0000-0000 Xxxxxx Inc.
CDPQ
Caisse de depot et placement du Quebec
Capital Communications CDPQ Inc.
EEIF
EEIF Melville B.V.
Emerging Europe Infrastructure Fund C.V.
EEIF Czech N.V.
21
SCHEDULE 3.2
MAJOR DECISIONS
(A) DECISIONS TO BE APPROVED BY NOT LESS THAN TWO THIRDS (2/3) OF VOTES
CAST BY DIRECTORS PRESENT AND ELIGIBLE TO CAST VOTES AT A DULY
CONSTITUTED BOARD MEETING:
Except as specifically provided for in the Business Plan and consistent with the
Strategic Direction:
(1) the issuance of any rights, warrants, options or underlying securities
or other equity securities (other than such securities as may be
granted or securities issued pursuant to the Company Stock Incentive
Plan, as amended, in force on the date hereof), the issuance of equity
or equity-linked securities, any redemption of any equity or
equity-linked securities, repurchase or acquisition of equity or
equity-linked securities, or the repricing (or adjustment of the
strike/exercise price) of any rights, warrants or options, in each case
by the Company or any Subsidiary (including Subsidiaries of
Subsidiaries);
(2) material changes in the Articles of Incorporation or By-laws (or
comparable constating documents) of the Company or any Subsidiary;
(3) incurring any debt or pledging of assets of the Company or any
Subsidiary;
(4) the creation of any Subsidiary by the Company (or any Subsidiary),
except for the creation of any such Subsidiary which is wholly-owned by
the Company (or any such Subsidiary, as applicable);
(5) the entering into by the Company or any Subsidiary of any contract or
agreement for an amount in excess of Cdn. $200,000 in any calendar year
with any Affiliate, officer, director, stockholder, consultant or
employee of the Company or any Subsidiary, or any Affiliate of any
officer, director, stockholder, consultant or employee of the Company
or any Subsidiary, including, without limitation, for the sale or
repurchase of any of the Company's or any Subsidiary's outstanding
capital stock, or rights, warrants or options therefor (other than (A)
existing repurchase rights, (B) any contract or agreement entered into
with such person on an arms-length basis or (C) equity-based
compensation approved pursuant to A(1) above);
(6) the granting of any exclusive rights to any intellectual property of
the Company or any Subsidiary;
(7) the granting of any exclusive distribution or offtake rights by the
Company or any Subsidiary;
22
(8) any material changes in the Company's or any Subsidiary's accounting
methods or policies (other than as required by U.S. or Canadian
generally accepted accounting principles), and any change in the
Company's or any Subsidiary's auditors;
(9) any other matter which pursuant to the CBCA, is to be approved by a
special resolution of shareholders of the Company;
(10) the sale of the Company (whether by sale of assets, stock or merger) in
circumstances in which the subject transaction or transactions do not,
in the respective opinions of each Investor (and by written notice
thereof to the Board), treat such Investor in a fair and equitable
manner; and
(11) the Company or any Subsidiary, as applicable, agreeing, or offering, as
the case may be, to take any of the foregoing actions.
(B) DECISIONS TO BE APPROVED BY NOT LESS THAN THREE QUARTERS (3/4) OF VOTES
CAST BY DIRECTORS PRESENT AND ELIGIBLE TO CAST VOTES AT A DULY
CONSTITUTED BOARD MEETING:
(1) The approval of the Business Plan or any modification of the Business
Plan and/or of the Strategic Direction;
Except as specifically provided for in the Business Plan and consistent with the
Strategic Direction:
(2) the repurchase of debt by the Company or any Subsidiary (other than out
of the proceeds of a sale of businesses or assets, in which case such
repurchase of debt shall be subject to the approval required by part
(A) of Schedule 3.2, provided such approval will not be withheld if the
failure to so repurchase debt would result in a breach of the Company's
existing debt covenants);
(3) any investment, acquisition, capital expenditure or development project
by the Company or any Subsidiary;
(4) the modification of the dividend policy of the Company (as stated in
the Business Plan);
(5) the discontinuance of the Company's status as a public company with
disclosure and filing obligations under the Securities Exchange Act of
1934, as amended, or any comparable Canadian law and/or otherwise stop
or impair trading in the Company's securities on The Toronto Stock
Exchange, or any other nationally recognized securities exchange in
Canada;
(6) commencing or effecting a tender or exchange offer made by the Company
or any Subsidiary for all or a portion of the securities of the Company
or any Subsidiary;
23
(7) the Company or any Subsidiary commencing or terminating the employment
of, or amending or revising the terms of any employment or other
compensation agreement with, the CEO and, on the recommendation of the
CEO or Chairman, any of the other executive officers named in a
management proxy circular mailed in connection with any Annual General
Meeting; and
(8) the Company or any Subsidiary, as applicable, agreeing, or offering, as
the case may be, to take any of the foregoing actions.
24
SCHEDULE 4.1(A)
OWNERSHIP OF SHARES, ETC.
UFI
U.F. Investments (Barbados) Ltd.
- 12,782,630 common shares
JPMP
JPMP TIW EH, LP.
- 18,625,699 common shares
XX Xxxxxx Partners (BHCA), LP.
- 4,384 common shares
AOF Investment N.V.
- 56,860 common shares
CEA Investment N.V.
- 88,595 common shares
CAIP Investment N.V.
- 31,735 common shares
TELESYSTEM
Telesystem Ltd.
- 3,968,535common shares, of which:
(i) 159,388 have been pledged in favour of Capital
Communications CDPQ Inc. to secure a debenture exchangeable
into 159,388 common shares, and
(ii) all remaining common shares that are not subject to
conversion or exchange pursuant to the debenture mentioned in
(i) above have been hypothecated in favour of Capital
Communications CDPQ Inc. to secure (x) a non-convertible
debenture issued by the parent company of Telesystem which is
payable at maturity on March 30, 2005, and (y) in certain
circumstances, the obligations of 0000-0000 Xxxxxx Inc. owed
to Capital Communications CDPQ Inc.
25
0000-0000 Xxxxxx Inc.
- 6,834,547 common shares, all of which have been hypothecated
in favour of Capital Communications CDPQ Inc. to secure (i) a
loan made to 0000-0000 Xxxxxx Inc. which is payable at
maturity on March 30, 2005 and (ii) in certain circumstances,
the obligations under the non-convertible debenture issued by
the parent company of Telesystem.
CDPQ
Caisse de depot et placement du Quebec
- 10,715,651 common shares
Capital Communications CDPQ Inc. ("Capcom")
- 159,388 common shares have been hypothecated by Telesystem
Ltd. in favour of Capcom to secure a debenture exchangeable
into 159,388 common shares;
- all shares owned by Telesystem Ltd. have been hypothecated in
favour of Capcom to secure (x) a non-convertible debenture
issued by the parent company of Telesystem which is payable at
maturity on March 30, 2005, and (y) in certain circumstances,
the obligations of 0000-0000 Xxxxxx Inc. owed to Capcom, and
- 6,834,547 common shares owned by 0000-0000 Xxxxxx Inc. have
been hypothecated in favour of Capcom to secure (i) a loan
made to 0000-0000 Xxxxxx Inc. which is payable at maturity on
March 30, 2005 and (ii) in certain circumstances, the
obligation under the non-convertible debenture issued by the
parent company of Telesystem Ltd.
EEIF
EEIF Melville B.V.
- 10,343,460 common shares
Emerging Europe Infrastructure Fund C.V.
- 299,095 common shares
EEIF Czech N.V.
- 1,017,127 common shares
26
SCHEDULE 5.1
REGULATORY SIDELETTER
