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Exhibit 2.1
DATED MAY 4, 2001
MANNESMANN EUROKOM GMBH,
EKOM TELECOMMUNICATIONS HOLDING AG
and
EHG EINKAUFS- UND HANDELS GmbH
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AGREEMENT FOR THE SALE AND PURCHASE
OF 100% OF THE SHARES IN TELE.RING TELEKOM SERVICE GmbH,
100% OF THE PARTNERSHIP INTEREST IN
TELE.RING TELEKOM SERVICE GMBH & CO KEG AND FOR THE CALL-OPTION
REGARDING THE SALE AND PURCHASE OF
100% OF THE SHARES IN MANNESMANN 3G MOBILFUNK GMBH
--------------------------------------------------------------------------------
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxxxxxxxxxxxxxxxx 0
0000 Xxxxxx
Xxxxxxx
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CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation ...................................... 5
2. Sale and Purchase.................................................... 9
3. Conditions........................................................... 9
4. Further Assurances .................................................. 10
5. Closing ............................................................. 10
6. EKOM Option Agreement................................................ 11
7. Representations and Warranties regarding the Sale of the Shares...... 14
8. Remedies, Limitations on Liability .................................. 14
9. Remedies and Waivers................................................. 15
10. Entire Agreement..................................................... 15
11. Notices.............................................................. 15
12. Announcements........................................................ 17
13. Confidentiality...................................................... 17
14. Costs and Expenses/Taxes............................................. 18
15. Counterparts ........................................................ 19
16. Severability......................................................... 19
17. Language............................................................. 19
18. Governing Law........................................................ 20
19. Dispute Resolution................................................... 20
Schedule 1 Conditions to Closing
Schedule 2 Merger Control and Regulatory Approval
Schedule 3 Closing Arrangements
Schedule 4 Representations and Warranties of the Vendors
Schedule 5 Representations and Warranties of the Purchaser
Schedule 6 Vendors' Limitation on Liability
Schedule 7 Purchaser's Limitation on Liability
Schedule 8 Material Litigation
Schedule 9 Employees and Employee Benefits
Schedule 10 Financial Plan
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Schedule 11 Data Room Index
Schedule 12 Certain Intra-Group Agreements
Schedule 13 Determining Consolidated Closing Net Working Capital
Schedule 14 Form of Loan Agreement
Schedule 15 Form of Loan Guarantee
Schedule 16 Form of Letter by Western Wireless International
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Exhibit 2.1
THIS AGREEMENT is made this fourth day of May 2001
BETWEEN:
(1) Mannesmann Eurokom XxxX, Xxxxxxxxxxxx 0, 00000 Xxxxxxxxxx, Xxxxxxx, a
company duly organized and validly existing under the laws of Germany
("MEU")
AND
(2) EKOM Telecommunications Holding AG, Xxxxxxxxxxxxxx 0, 0000 Xxxx,
Xxxxxxx, a company duly organized and validly existing under the laws of
Austria ("EKOM", and together with MEU, the "VENDORS")
AND
(3) EHG Einkaufs- und Handels GmbH, Prinz Xxxxxxxxxxxx 00, 0000 Xxxx, a
company duly organized and validly existing under the laws of Austria
("PURCHASER") and a wholly owned indirect subsidiary of Western Wireless
International Corporation ("Western Wireless").
WHEREAS, MEU is a company organized under the laws of Germany and a
wholly owned indirect subsidiary of Vodafone Group Plc ("VODAFONE"), a company
organized under the laws of England;
WHEREAS, EKOM is a company organized under the laws of Austria and a
wholly owned direct subsidiary of MEU;
WHEREAS, tele.ring Telekom Service GmbH ("TELE.RING GmbH") is a company
organized under the laws of Austria with a stated share capital of
E60,000,000.-- (Euro sixty million) and MEU is the legal and beneficial owner of
a share quota representing 0,0478% of the stated share capital of tele.ring GmbH
and EKOM is the legal and beneficial owner of a share quota representing 0,0127%
of the stated share capital of tele.ring GmbH (collectively, the "TELE.RING
SHARES");
WHEREAS, tele.ring Dienstleistungs GmbH is a 100% subsidiary of
tele.ring GmbH;
WHEREAS, tele.ring Telekom Service GmbH & Co KEG ("TELE.RING KEG") is a
limited partnership organized under the laws of Austria, in which MEU has a
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79% interest and EKOM has a 21% interest (the "TELE.RING KEG PARTNERSHIP
INTERESTS")
WHEREAS, tele.ring KEG holds a 99.9395% interest in tele.ring GmbH, the
general partner (Komplementar) of tele.ring KEG;
WHEREAS, Mannesmann 3G Mobilfunk GmbH ("MM3G") is a company organized
under the laws of Austria with a stated share capital of E35,000.-- (Euro
thirty-five thousand) and MEU is the legal and beneficial owner of a share quota
representing 100% of the stated share capital of MM3G (the "MM3G SHARES");
WHEREAS, MEU desires to sell all of its right, title and interest in the
tele.ring Shares and the tele.ring KEG Partnership Interests (collectively, the
"SHARES") to Purchaser and Purchaser desires to purchase such Shares from MEU;
WHEREAS, EKOM desires to sell all of its right, title and interest in
the tele.ring Shares and tele.ring KEG Partnership Interests to Purchaser and
Purchaser desires to purchase such Shares from EKOM; and
WHEREAS, MEU desires to grant a call-option to Purchaser regarding the
purchase of all of its right, title and interest in the MM3G Shares;
WHEREAS, the Management Board and Supervisory Board of each of MEU and
EKOM, and the Management Board of Purchaser, have on or prior to the date
hereof, adopted resolutions approving the transactions contemplated herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Parties hereto agree as follows:
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1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement unless the context otherwise requires:
"AFFILIATE" means any person controlled by, who controls
or is under common control with another
person;
"AGREEMENT" means this Sale and Purchase Agreement;
"BUSINESS DAY" means a day on which banks are ordinarily
open for the transaction of banking business
in Vienna, Austria;
"CLOSING" means the completion of the sale and
purchase of the Shares as contemplated in
this Agreement;
"CLOSING DATE" means the date of the Closing as set forth
in Clause 5.1 of this Agreement;
"CONDITIONS" means the conditions specified in Schedule 1
(Conditions to Closing) and any references
to "Condition 1", "Condition 2", "Condition
3", "Condition 4", "Condition 5" means
whichever of the Conditions is so numbered
in that schedule;
"CONSOLIDATED CLOSING
NET WORKING CAPITAL" means the difference, as at the Closing
Date, between (a) the consolidated liquid
assets (Umlaufvermogen) (as defined in
Section 224 (2) B. of the Austrian
Commercial Code, and (b) the consolidated
accruals (Ruckstellungen) as defined in
Section 224 (3) C 3 and 4 of the Austrian
Commercial Code, plus the consolidated
liabilities (Verbindlichkeiten) as defined
in Section 224 (3) D of the Austrian
Commercial Code, plus all consolidated
pre-paid income (Rechnungsabgrenzungsposten)
as defined in Section 224 (3) E of the
Austrian Commercial Code , in each case with
a term of twelve months or less, of
tele.ring GmbH and
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tele.ring KEG that would have to be
reflected on a consolidated balance sheet as
at the Closing Date;
"DRAWN THIRD PARTY
LOANS" shall have the meaning ascribed to it in
Section 6 of Schedule 4 to this Agreement;
"EKOM" means EKOM Telecommunications Holding AG,
Xxxxxxxxxxxxxx 0, 0000 Xxxx, Xxxxxxx, a
company duly organized and validly existing
under the laws of Austria;
"EKOM-CALL OPTION" means Purchaser's right to acquire stock in
EKOM pursuant to Clause 6.1;
"EKOM CALL PERIOD" means the time period specified in Clause
6.1 during which Purchaser has the right to
exercise the EKOM-Call Option;
"EKOM NOTICE" means the notice given by Purchaser to
exercise the EKOM Call Option;
"EKOM OPTION
EXERCISE DATE" means the date on which the sale and
purchase of the EKOM-Shares pursuant to the
EKOM-Call Option shall take place;
"EKOM OPTION
EXERCISE PRICE" means the consideration specified in Clause
6.1 of this Agreement for acquiring the
EKOM-Shares pursuant to the EKOM-Call
Option;
"EKOM-SHARES" shall have the meaning as defined in Clause
6.1;
"FINANCIAL PLAN" shall have the meaning as defined in clause
4.3;
"GSM LICENCE" means licence no. K 39/98-118 granted by
Telekom-Control-Kommission on 3 May 1999;
"INDEBTEDNESS" shall have the meaning ascribed to it in
Section 6 of Schedule 4 to this Agreement;
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"INTRA-GROUP DEBT" shall have the meaning ascribed to it in
Section 6 of Schedule 4 to this Agreement;
"LOAN AGREEMENT" means the term loan agreement entered into
by tele.ring GmbH and EKOM on the date
hereof;
"LOAN GUARANTEE" means the letter of guarantee as attached in
Schedule 15 hereto;
"MM3G" means Mannesmann 3G Mobilfunk GmbH,
Xxxxxxxxxxxxxxxxxx 0, 0000 Xxxxxx, Xxxxxxx,
a company duly organized and validly
existing under the laws of Austria;
"MM3G-CALL OPTION" means Purchaser's right to acquire stock in
MM3G pursuant to Clause 7.1;
"MM3G CALL PERIOD" means the time period specified in Clause
7.1 during which Purchaser has the right to
exercise the MM3G-Call Option;
"MM3G NOTICE" means the notice given by Purchaser to
exercise the MM3G Call Option;
"MM3G OPTION
EXERCISE DATE" means the date on which the sale and
purchase of the MM3G-Shares in accordance
with and subject to Clause 7 shall take
place;
"MM3G OPTION
EXERCISE PRICE" means the consideration specified in Clause
7.1 of this Agreement;
"PARTY", "PARTIES" means MEU, EKOM, and Purchaser individually
or collectively;
"PRE-CONTRACTUAL-
STATEMENT" means a draft, agreement, undertaking,
representation, warranty, promise, assurance
or arrangement of any nature whatsoever,
whether
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or not in writing, relating to the Share
Purchase Documents or any of them made or
given by a Party to any of the Share
Purchase Documents or any other person at
any time prior to execution of the Share
Purchase Documents;
"PURCHASE PRICE" means the purchase price specified in Clause
2.2 of this Agreement;
"PURCHASER'S COUNSEL" means Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP;
"PURCHASER'S WARRANTIES" means the representations and warranties set
forth in Schedule 5 (Representations and
Warranties of the Purchaser) given by the
Purchaser;
"SHARES" means the tele.ring Shares and the tele.ring
KEG Partnership Interests;
"SHARE PURCHASE
DOCUMENTS" means this Agreement, including Schedules,
the Loan Agreement and the notarial deeds of
even date and any other documents referred
to in this Agreement;
"TELE.RING GMBH" means tele.ring Telekom Service GmbH,
Xxxxxxxxxxxxxxxxx 00, 0000 Xxxxxx, Xxxxxxx,
a company duly organized and validly
existing under the laws of Austria and
tele.ring Dienstleistungs GmbH,
Xxxxxxxxxxxxxxxxx 00, 0000 Xxxxxx, Xxxxxxx,
a company duly organized and validly
existing under the laws of Austria;
"TELE.RING KEG" means tele.ring Telekom Service GmbH & Co
KEG, Xxxxxxxxxxxxxxxxx 00, 0000 Xxxxxx,
Xxxxxxx, a limited partnership duly
organized and validly existing under the
laws of Austria;
"TELE.RING SHARES" means the share quotas held by MEU and EKOM,
respectively, in tele.ring Telekom Service
GmbH;
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"TELEKOM-CONTROL-
KOMMISSION" means the commission of that name
established under the Austrian
Telecommunications Act
(Telekommunikationsgesetz);
"UMTS LICENCE" means licence no. K 15/00-67 by
Telekom-Control-Kommission on 20 November
2000;
"VENDORS' COUNSEL" means Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP;
"VENDORS' WARRANTIES" means the representations and warranties set
forth in Clause 6 (EKOM Option Agreement),
Clause 7 (MM3G Option Agreement) and
Schedule 4 (Representations and Warranties
of the Vendors) given by the Vendors;
"VIENNA CARTEL COURT" means the Vienna Upper Regional Court as
Cartel Court (Oberlandesgericht Wien als
Kartellgericht);
"VODAFONE" means Vodafone Group Plc., The Courtyard 0-0
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxx, XX00 0XX,
Xxxxxx Xxxxxxx, a company duly organized and
validly existing under the laws of England;
and
"WORKING HOURS" means 9:30 a.m. to 5:30 p.m. on a Business
Day.
1.2. In this Agreement, unless otherwise specified:
(a) references to clauses, sub-clauses, paragraphs, sub-paragraphs
and schedules are to clauses, sub-clauses, paragraphs,
sub-paragraphs of, and schedules to, this Agreement;
(b) a reference to any statute or statutory provision shall be
construed as a reference to the same as it may have been, or may
from time to time be, amended, modified or re-enacted;
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(c) references to a "COMPANY" shall be construed so as to include any
company, corporation or other body corporate, wherever and
however incorporated or established;
(d) references to a "PERSON" shall be construed so as to include any
individual, firm, company, government, state or agency of a state
or any joint venture, association or partnership (whether or not
having separate legal personality);
(e) references to writing shall include any modes or reproducing
words in a legible and non-transitory form;
(f) references to times of the day are to Central European Time;
(g) words importing the singular include the plural and vice versa,
words importing a gender include every gender;
(h) the contents table and the descriptive headings to clauses,
schedules and paragraphs are for convenience only and shall not
limit, expand or otherwise affect the construction or
interpretation of any provision of this Agreement;
(i) the schedules and any attachments form part of this Agreement and
shall have the same force and effect as if expressly set out in
the body of this Agreement, and any reference to this Agreement
shall include the schedules and any attachments;
(j) references to any legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, court,
official, or any legal concept or thing shall in respect of any
jurisdiction other than Austria be deemed to include what most
nearly approximates in that jurisdiction to the legal term.
2. SALE AND PURCHASE
2.1 At the Closing and effective as of the Closing Date and subject to the
terms and conditions set forth herein, the Vendors shall sell and
transfer, and the Purchaser shall purchase and accept from the Vendors,
all right, title and interest in the Shares with all the rights attached
or accruing to them at Closing, provided, however, that the sale and
transfer of the tele.ring KEG Partnership Interests shall take place
effective as of the time of registration of
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Purchaser as limited partner of tele.ring KEG in the Commercial Register
(Firmenbuch).
2.2 In consideration for such sale and transfer, at the Closing and
effective as of the Closing Date, Purchaser shall pay in cash (A) E9 to
MEU and (B) E 1 to EKOM. The Purchaser shall be entitled to exercise all
rights attached or accruing to the Shares including, without limitation,
the right to receive all dividends, distributions or any return of
capital declared, paid or made by tele.ring GmbH or tele.ring KEG,
respectively, on or after the Closing date.
2.3 Each of the Vendors hereby waives all rights of pre-emption over, and
all rights of first refusal regarding, any of the Shares whether arising
out of the corporate organizational documents of tele.ring GmbH,
tele.ring KEG or otherwise.
3. CONDITIONS
3.1 The obligation of the Parties to consummate the transactions
contemplated herein shall in all respects be subject to the satisfaction
or waiver, at or prior to the Closing, of the conditions set forth in
Schedule 1. In procuring the fulfillment of such conditions, the Parties
shall proceed as set forth in Schedule 2 (Merger Control and Regulatory
Approval).
3.2 Purchaser and the Vendors shall use their commercially reasonable
efforts to procure the fulfillment of the conditions in accordance with
the provisions set forth in Schedule 2 hereto.
4. FURTHER ASSURANCES
4.1 Each Party shall upon the request of the other at their own respective
cost, now or at any time in the future, do or procure the doing of all
such acts and/or execute or procure the execution of all such documents
in a form satisfactory to the requesting Party as the requesting Party
may reasonably consider necessary for giving full effect to this
Agreement.
4.2 The Vendors covenant and agree that between the date of this Agreement
and the Closing, they shall cause each of tele.ring GmbH and tele.ring
KEG to conduct its respective business until Closing in accordance with
and in the manner contemplated by the financial plan (the "Financial
Plan") attached hereto as Schedule 10, subject, however, to the
provisions of Clause 4.3. In the event that the Closing does not occur
on or before June 30, 2001, the Vendors covenant and agree to cause each
of tele.ring GmbH and tele.ring
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KEG to conduct its respective business until Closing in accordance with
and in the manner contemplated by the Financial Plan.
4.3 Between the date hereof and the Closing Date, Vendors shall cause
tele.ring GmbH and tele.ring KEG not to perform any of the acts or enter
into any contract, arrangement or understanding, written or oral, to
perform any of the following acts:
(a) make any investments in infrastructure or other capital
expenditures (other than necessary repairs) except less than
E10,000 per occurrence and E2,000,000 in the aggregate per month;
(b) enter into, renew, amend, terminate or extend any contracts,
arrangement or understanding other than in the ordinary course of
business consistent with the Financial Plan;
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(c) hire any new employee or consultant;
(d) enter into any new lease with a term of more than six months or
renew, amend, terminate or extend any existing lease;
(e) adopt any new rate plan other than to the extent provided for in
the Financial Plan;
(f) change the amount of subsidy on handsets other than as
contemplated by the Financial Plan;
(g) dispose of any assets other than inventory in the ordinary course
of business;
(h) enter into any barter transaction;
(i) change any accounting policy;
(j) change the level of compensation of any employee or consultant
except in the case of employees pursuant to (i) standard annual
review, or (ii) legal requirements;
(k) enter into any new collective bargaining agreement or renew,
extend, amend or terminate any collective bargaining agreement
except as required by applicable laws;
(l) enter into, renew, extend, amend or terminate any contract,
arrangement or understanding with Vodafone or any if its
affiliates; or
(m) enter into, modify, renew, extend, amend or terminate any
severance arrangements or benefit plans for employees.
4.5 Vendors covenant and agree that from and after the date hereof until the
Closing, they shall cause tele.ring GmbH and tele.ring KEG to grant to
Purchaser and its authorized representatives reasonable access to all
then existing facilities at normal business hours, permit them to review
all books, accounts and records of such entities, permit them to consult
with management and, subject to Vendors' prior consent (which shall not
be unreasonably withheld) with respect to the procedure, all employees
and consultants of such entities, provided that Purchaser and its
representatives shall in no event unreasonably interfere with the
business or operations of such entities.
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4.6 Intra-Group Agreements: Vendors shall use their reasonable best efforts
to ensure that any material agreements, understandings and practices
which either tele.ring GmbH or tele.ring KEG have entered into with the
Vendors or any majority owned, directly or indirectly, Affiliate of
Vodafone will not be terminated prior to one year after Closing at the
earliest, except for the arrangements contemplated under items 1 (1),
(2) and (3) of Schedule 12, which will not be terminated prior to 18
months after Closing at the earliest and services provided under these
agreements shall continue to be provided to tele.ring GmbH to the extent
(i) reasonably required for maintaining an orderly operation of the
business, and (ii) the provision of these services to third party
customers does not conflict with or violate any laws, rules, regulations
or agreements to which the Vendors or any majority owned, directly or
indirectly, Affiliate of Vodafone, as the case may be, have committed
themselves prior to the date hereof; provided, however, that Vendors or
the majority owned Affiliates of Vodafone shall only be obligated to do
so if compensated in a reasonable (consistent with past practice
together with any incremental cost to Vodafone incurred directly as a
result of tele.ring GmbH no longer being part of the Vodafone group) and
timely manner.
4.7 Upon execution of this Agreement, Vendors shall cause to be delivered to
Freshfields Bruckhaus Xxxxxxxx special local counsel to Purchaser, a
true and complete set of the Disclosure Documents (including all
schedules and confidential information). Such Documents shall be
retained by such counsel and only made available to Purchaser or its
advisers (subject in each case to the provisions of Clause 14.) In the
event that Closing does not occur, such Documents shall promptly be
returned to Vendors.
5. CLOSING
5.1 The transactions contemplated in this Agreement shall be completed at
the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP at Vienna, at
the option of Vendors either (i) on the fifth Business Day after all the
Conditions have been fulfilled or waived, or (ii) on the last day of the
calendar month in which the date referred to in (i) falls, or such other
place and date as may be mutually agreed upon between the Parties.
5.2 At Closing, the Vendors shall take all actions set forth in Sections 1,
2 and 4 of Schedule 3 and Purchaser shall take all actions set forth in
Sections 2, 3 and 4 of Schedule 3 (Closing Arrangements).
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5.3 In the event that all the Conditions have not been fulfilled on or prior
to the first anniversary of the date hereof, unless such date has been
extended by mutual consent, the Purchaser, on the one hand or the
Vendors, on the other hand, may terminate this Agreement upon written
notice to the other Parties. Notwithstanding the foregoing, a Party that
has failed to satisfy or has prevented a Condition to be satisfied by it
shall not be entitled to terminate this Agreement.
5.4 Following the Closing the Parties shall ensure that all necessary
measures are taken so that the Purchaser will be registered in the
Commercial Register (Firmenbuch), without undue delay, as shareholder of
tele.ring GmbH and as limited partner of tele.ring KEG, with the latter
registration to be applied for such that the Commercial Register will
show the Purchaser to be individual successor (Einzelrechtsnachfolger)
of the Vendors.
5.5 The procedure the Parties shall follow for determining whether
Consolidated Closing Net Working Capital is zero and any necessary
adjustments is set forth in Schedule 13.
6. EKOM OPTION AGREEMENT
6.1 Subject to the terms of this Clause 6, the Purchaser shall have the
right at any time after January 1, 2002 and prior to May 4, 2011 (the
"EKOM-Call Period") to acquire 100% of the outstanding stock in EKOM
(the "EKOM-Shares"), all of which is held by MEU, for a purchase price
of E1 (the "EKOM Option Exercise Price") (the "EKOM-Call Option"). The
right of the Purchaser to exercise the EKOM-Call Option and the legal
effectiveness of this Clause 6 shall be subject to fulfillment of each
of the following conditions:
(a) With the exception of settling any amounts due under the Loan
Agreement, Purchaser shall have completed the liquidation of
tele.ring GmbH pursuant to Sections 89 et seq. of the Austrian
Limited Liabilities Companies Act (GmbH Gesetz); and
(b) Purchaser shall have provided MEU with a certification of one of
the Big Five accounting firms satisfactory in form and substance
to MEU that no liabilities are outstanding other than the loan
facility provided by EKOM and that once the EKOM-Call Option is
exercised and EKOM has waived its right of repayment of the loan
facility tele.ring GmbH can be de-registered from the commercial
register with immediate effect.
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The EKOM-Call Option may be exercised by Purchaser by giving notice of
exercise to MEU (the "EKOM Notice"). The EKOM Notice shall specify a
date not less than 30 days and not more than 60 days from the date
thereof on which the sale and purchase of the EKOM-Shares shall take
place (the "EKOM Option Exercise Date"). Upon giving notice, Purchaser
shall be obligated to purchase and MEU shall be obligated to sell and
transfer the EKOM-Shares at the EKOM Option Exercise Price on the EKOM
Option Exercise Date to Purchaser, subject to (a) the conditions set
forth in this Clause 6.1 and (b) the procedures described in Clauses 6.2
through 6.5 hereof.
6.2 Any such EKOM Notice shall be given in writing and addressed to MEU as
provided in Clause 12.3 and, if so addressed, shall be deemed to be duly
given or made as follows:
(a) if sent by personal delivery, upon delivery to the address of
MEU;
(b) if sent by international commercial courier, upon delivery; and
(c) if sent by facsimile, when dispatched, but only so long as the
facsimile communication is followed immediately by dispatch by
international commercial courier;
provided that if, in accordance with the above provisions, any such
notice or other communication would otherwise be deemed to be given or
made outside Working Hours, such notice or other communication shall be
deemed to be given or made at the start of Working Hours the next
Business Day.
6.3 Subject to Clause 6.1 (a) and (b) at the EKOM Option Exercise Date, MEU
shall sell, transfer and deliver to Purchaser all of its right, title
and interest and in and to the EKOM-Shares.
Subject to Clause 6.1 (a) and (b) MEU represents and warrants to the
Purchaser as of the EKOM Option Exercise Date as follows:
(a) Organization. EKOM is a corporation duly organized and validly
existing under the laws of Austria.
(b) Corporate Power. EKOM has all required corporate power and
authority to own, lease and operate their respective assets,
properties and businesses and to carry on their respective
businesses as conducted at the signing of this Agreement.
(c) Binding Commitment. This commitment constitutes a valid and
binding obligation of MEU in accordance with its respective
terms.
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(d) Ownership of the EKOM-Shares. MEU owns beneficially and of
record, and has good and valid title to, all of the EKOM-Shares
free and clear of liens, encumbrances and options.
(e) Capitalization EKOM. All of the issued and outstanding shares in
EKOM have been duly authorized and are validly issued and fully
paid up or contributed in kind. No further share capital,
non-voting stock, option rights, commercial papers, convertible
bonds or other equity or similar instruments of EKOM have been
issued or agreed to be issued; the EKOM-Shares are not subject to
any liabilities for further capital calls. No intra-group debt
between Vodafone and its affiliates on the one hand and EKOM on
the other exists.
The sole asset of EKOM at the EKOM Option Exercise Date shall be
a cash reserve to be determined as follows: if the unused portion
of the Commitment under the Loan Agreement is smaller than or
equal to E15,000,000 (Euro 15 million), the full amount of the
unused portion of the Commitment; if the unused portion of the
Commitment is greater than E15 million and smaller than or equal
to E45,000,000 (Euro forty-five million), an amount of
E15,000,000 (Euro fifteen million); or, if the unused portion of
the Commitment is greater than E45,000,000 (Euro forty-five
million), an amount of E15,000,000 (Euro fifteen million) plus 50
(fifty)% of the difference by which the unused portion of the
Commitment exceeds the amount of E45,000,000 (Euro forty-five
million). There shall be no other assets or liabilities (whether
contingent or otherwise), in EKOM at the Exercise Date.
The representations and warranties in this Clause 6.3, except for
the aforegoing paragraph (sole asset of EKOM), shall be subject
to the limitations set forth in Schedule 6.
6.4 On the EKOM Option Exercise Date, Purchaser shall pay to MEU the EKOM
Option Exercise Price.
6.5 MEU agrees to be bound by and to sell and transfer the EKOM-Shares in
accordance with this Clause 6 and specifically waives any rights to
challenge or otherwise contest the sufficiency or adequacy of the
consideration to be paid for such shares pursuant to this Clause 6. The
applicability of Section 936 ABGB is herewith excluded for this EKOM
Call Option as well as for the Parties' obligations to sell and purchase
the EKOM Shares in the event that the EKOM Call Option is exercised
within the Exercise Period.
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6.6 The rights of Purchaser hereunder may in no event be assigned without
the prior written approval of MEU.
7. MM3G OPTION AGREEMENT
7.1 Subject to the terms and conditions of this Clause 7, the Purchaser
shall have the right at any time after the Closing and thirteen months
prior to (i) the earlier of the dates specified in condition 8 (2) of
the UMTS Licence, as amended from time to time, or (ii) the date on
which pursuant to any condition on such UMTS Licence which may be
imposed on MM3G after the date hereof, penalty payments could be
demanded for the first time, whichever date is earlier (the "MM3G-Call
Period") to acquire 100% of the MM3G Shares, all of which are held by
MEU, for a purchase price of E1 (the "MM3G Exercise Price") (the "MM3G
Call Option"). The legal validity of the MM3G Call Option, including the
obligation of MEU to sell and transfer the MM3G Shares to Purchaser
shall be subject to the fulfillment of each of the following conditions:
(a) Regulatory Approval. MM3G shall have received a Decree (Bescheid)
of Telekom-Control-Kommission approving the changes in ownership
contemplated in this Clause 7 pursuant to condition 12 of the
UMTS Licence without conditions unless such conditions are
acceptable to Purchaser at its discretion.
(b) Letter of Guarantee. Telekom-Control-Kommission shall have (i)
returned to Vodafone the original of the letter of guarantee
dated 11 September 2000 and (ii) confirmed to Vodafone in form
and substance reasonably satisfactory to Vodafone that Vodafone
has no further obligations under such letter of guarantee.
(c) No Liquidation of tele.ring GmbH. Purchaser shall have delivered
to MEU a duly executed officer's certificate certifying that none
of tele.ring GmbH or any of its successors shall, on or before
the MM3G Exercise Date, (i) enter into, or have entered into,
voluntary or involuntary liquidation, including, without
limitation, liquidation pursuant to Sections 89 et seq. of the
Austrian Limited Liabilities Companies Act (GmbH Gesetz), and
(ii) be, or have been, subject to insolvency proceedings,
including, without limitation, insolvency or debt recomposition
proceedings within the meaning of Sections 63 et seq.
Konkursordnung (Austrian Bankruptcy Code) and Sections 1 et
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seq. Ausgleichsordnung (Austrian Settlement and Recomposition of
Debts Act).
The MM3G Call Option may be exercised by Purchaser by giving notice of
exercise to MEU (the "MM3G Notice"). The MM3G Notice shall specify a
date not less than 30 days and not more than 60 days from the date
thereof on which the sale and purchase of the MM3G-Shares shall take
place. The date later to occur of (i) the date specified in the MM3G
Notice, and (ii) the date on which all of the conditions contained in
subsections (a) through (c) of this Clause 7.1 shall be the "MM3G
Exercise Date." If the MM3G Exercise Date has, for any, or without any,
reason other than the breach by MEU of any of its obligations under this
Clause 7., not occurred on or prior to the 180th day following the date
of the MM3G Notice, this Clause 7., including, without limitation, the
MM3G Call Option, shall be null and void and none of the Parties shall
have any claim whatsoever against the other Party under this Clause 7.
Upon giving notice, Purchaser shall be obligated to purchase and MEU
shall be obligated to sell, in each case subject to the conditions
contained in subsections (a) through (c) of this Clause 7.1, the
MM3G-Shares at the MM3G Exercise Price. The sale and purchase of
MM3G-Shares pursuant to this Clause shall be effected in accordance with
the following provisions. The applicability of Section 936 of the
Austrian General Civil Code [ABGB] is herewith excluded for this MM3G
Call Option as well as for the parties' obligations to sell and to
purchase the MM3G shares in the event that the MM3G Call Option is
exercised within the exercise period.
7.2 Any such MM3G Notice shall be given in writing and addressed to MEU as
provided in Clause 12.3 and, if so addressed, shall be deemed to be duly
given or made as follows:
(a) if sent by personal delivery, upon delivery to the address of
MEU;
(b) if sent by international commercial courier, upon delivery; and
(c) if sent by facsimile, when dispatched, but only so long as the
facsimile communication is followed immediately by dispatch by
international commercial courier;
provided that if, in accordance with the above provisions, any such
notice or other communication would otherwise be deemed to be given or
made outside Working Hours, such notice or other communication shall be
deemed to be given or made at the start of Working Hours the next
Business Day.
7.3 MEU shall use its commercially reasonable endeavors to cooperate with
Purchaser in order to obtain the Decree of Telekom-Control-Kommission in
accordance with Section 7.1 (a) hereof. On or before the date specified
in the
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MM3G Notice, Purchaser shall use commercially reasonable endeavors to
procure that the conditions set forth in Section 7.1 (b) hereof are
fulfilled.
7.4. Subject to Clause 7.1 (a), (b) and (c), MEU shall, on the MM3G Exercise
Date, sell, transfer and deliver to Purchaser all of its right, title
and interest and in and to the MM3G-Shares.
The sale and purchase shall be made without any representations and
warranties of MEU, express or implied, other than the following
representations and warranties to the Purchaser as of the MM3G Exercise
Date:
(a) Organization. MM3G is a corporation duly organized and validly
existing under the laws of Austria.
(b) Corporate Power. MM3G has all required corporate power and
authority to own, lease and operate their respective assets,
properties and businesses and to carry on their respective
businesses as conducted at the signing of this Agreement.
(c) Binding Commitment. This commitment constitutes a valid and
binding obligation of MEU enforceable in accordance with its
respective terms.
(d) Ownership of the MM3G-Shares. MEU owns beneficially and of
record, and has good and valid title to, all of the MM3G-Shares
free and clear of liens, encumbrances and options.
(e) Capitalization MM3G. All of the issued and outstanding shares in
MM3G have been duly authorized and are validly issued and fully
paid up or contributed in kind. No further share capital,
non-voting stock, option rights, commercial papers, convertible
bonds or other equity or similar instruments of MM3G have been
issued or agreed to be issued; the MM3G-Shares are not subject to
any liabilities for further capital calls.
(f) Absence of Liabilities. At the Exercise Date, aggregate
liabilities of MM3G shall not exceed E500,000 (Euro five hundred
thousand). Purchaser acknowledges and agrees that in case of a
breach of this warranty, the total aggregate liability of MEU
shall not in any event exceed E10 million (Euro ten million).
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The above representations and warranties in this Clause 7.4 shall be
subject to the limitations set forth in Schedule 6 hereto.
7.5 Covenants
(a) From the Date hereof until the Closing of the purchase of the
MM3G shares, MEU shall cause MM3G not to sell, transfer, assign,
pledge or in any way encumber the MM3G shares.
(b) Vendors shall keep Purchaser informed about factual and
regulatory developments regarding the UMTS Licence and of its own
intentions concerning the licence in a timely manner.
(c) MM3G shall not sell, transfer, assign, dispose of or surrender
the MM3G Licence to any person, including but not limited to any
governmental entity, prior to the end of the MM3G-Call Period
unless all the following conditions are satisfied:
(i) any regulatory entity that maintains jurisdiction over the
MM3G Licence (A) has imposed upon MM3G or an affiliate thereof
the requirement that an additional payment be made in order for
MM3G to retain any of its rights under the MM3G Licence or (B)
has notified MM3G that it will impose a material penalty upon
MM3G unless MM3G or an affiliate takes some material action by a
date certain; or (C) has notified MM3G or one of its affiliates
that the guarantee issued by Vodafone Group Plc is about to be
drawn upon; and
(ii) MM3G shall have given prompt written notice to the Purchaser
of the action referred to in (i) above and informed Purchaser
that it intends to either waive or transfer the MM3G Licence and
the Purchaser shall not have advised MM3G that it wants to
exercise the option within 14 days after receipt of such notice
(or such shorter period of time as may be required by the
regulatory authority within which MM3G must make a decision
required by such regulatory authority). In case Purchaser
declares that it intends to exercise the MM3G option and requests
that MM3G take any action or forbear from taking action with
respect to the UMTS Licence, Purchaser shall indemnify Vendors
and MM3G GmbH as well as Vodafone, against any claim arising
directly from the action or forbearance requested by Purchaser.
(d) MEU agrees to cause MM3G to promptly provide the Purchaser copies
of all correspondence and other communications between it
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and any regulatory entity that maintains jurisdiction over the
MM3G Licence. MM3G agrees to cooperate with Purchaser and not
hinder any of Purchaser's efforts to get the benefits of the UMTS
Licence.
7.6 On the MM3G Exercise Date, Purchaser shall pay to MEU the MM3G Exercise
Price.
7.7 MEU agrees to be bound by and to sell the MM3G-Shares subject to the
terms and conditions of this Clause 7 and specifically waives any rights
to challenge or otherwise contest the sufficiency or adequacy of the
consideration to be paid for such shares pursuant to this Clause 7.
7.8 The rights of Purchaser hereunder may be assigned to an affiliate of
Purchaser, but may not otherwise be assigned without the prior written
approval of MEU; provided, that the Purchaser may not assign any rights
hereunder to an affiliate unless such affiliate agrees to comply with
the regulations set forth in this Agreement.
8. REPRESENTATIONS AND WARRANTIES REGARDING THE SALE OF THE SHARES
8.1 The Vendors jointly and severally represent and warrant to the Purchaser
that each of the Vendors' Warranties as set forth in Schedule 4 is
accurate as of the Closing.
8.2 The Purchaser acknowledges and agrees that there are no representations
and warranties by or on behalf of the Vendors or any of their affiliates
or any member of the Vendors' group to the Purchaser other than the
Vendors' Warranties as set forth in Schedule 4.
8.3 The Purchaser represents and warrants to each of the Vendors that each
of the Purchaser's Warranties as set forth in Schedule 5 is accurate as
of the Closing.
8.4 The Vendors acknowledge and agree that there are no representations and
warranties by or on behalf of Purchaser or any of its affiliates or any
member of Purchaser's group to the Vendors other than the Purchaser's
Warranties as set forth in Schedule 5.
9. REMEDIES, LIMITATIONS ON LIABILITY
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9.1 If the Purchaser becomes aware that there has been a material breach of
the Vendors' Warranties or any other term of this Agreement, the
Purchaser shall not be entitled to rescind or avoid this Agreement or
treat this Agreement as terminated but shall only be entitled to claim
damages or exercise any other right, power or remedy under this
Agreement subject to the limitations set forth in Schedule 6. At the
option of Purchaser, Vendors shall be obligated to either grant
restitution in kind or to put Purchaser in as good a position as
Purchaser would have been if no breach had occurred. For the avoidance
of doubt, all remedies of Purchaser hereunder shall be subject to the
limitations set forth in Schedule 6.
9.2 If the Vendors become aware that there has been a material breach of the
Purchaser's Warranties or any other term of this Agreement, the Vendors
shall not be entitled to rescind or avoid this Agreement or treat this
Agreement as terminated but shall only be entitled to claim damages or
exercise any other right, power or remedy under this Agreement subject
to the limitations set forth in Schedule 7. At the option of Vendors,
Purchaser shall be obligated to either grant restitution in kind or to
put Vendors in as good a position as Vendors would have been if no
breach had occurred. For the avoidance of doubt, all remedies of Vendors
hereunder shall be subject to the limitations set forth in Schedule 7.
10. REMEDIES AND WAIVERS
10.1 No delay or omission on the part of any Party to this Agreement in
exercising any right, power or remedy provided by law or under this
Agreement or any other documents referred to in it shall:
(a) impair such right, power or remedy; or
(b) operate as a waiver thereof.
10.2 The single or partial exercise of any right, power or remedy provided by
law (unless excluded by this Agreement) or under this Agreement shall
not preclude any other or further exercise thereof or the exercise of
any other right, power or remedy.
11. ENTIRE AGREEMENT
11.1 The Share Purchase Documents constitute the entire agreement between the
Parties relating to the sale and purchase of the Shares.
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11.2 Except to the extent repeated in any of the Share Purchase Documents,
the Share Purchase Documents supersede and extinguish any
Pre-contractual Statement relating thereto.
11.3 Each Party acknowledges that in entering into the Share Purchase
Documents or any of them on the terms set out therein, it is not relying
upon any Pre-contractual Statement which is not expressly set out
therein.
11.4 None of the Parties shall have any right of action against any other
Party to this Agreement arising out of or in connection with any
Pre-contractual Statement (except in the case of fraud).
11.5 This Agreement may only be varied in writing signed by each of the
Parties.
12. NOTICES
12.1 Any notice or other communication given or made under or in connection
with the matters contemplated by this Agreement shall be in writing.
12.2 Any such notice or other communication shall be addressed as provided in
Clause 12.3 and, if so addressed, shall be deemed to have been duly
given or made as follows:
(a) if sent by personal delivery, upon delivery at the address of the
relevant Party;
(b) if sent by international commercial courier, upon delivery; and
(c) if sent by facsimile, when dispatched, but only so long as the
facsimile communication is followed immediately by dispatch by
international commercial courier;
provided that if, in accordance with the above provisions, any such
notice or other communication would otherwise be deemed to be given or
made outside Working Hours, such notice or other communication shall be
deemed to be given or made at the start of Working Hours on the next
Business Day.
12.3 The relevant addressee, address and facsimile number of each Party for
the purposes of this Agreement, subject to Clause 12.4, are:
Name of Party Address Facsimile No.
------------- ------- -------------
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Mannesmann Eurokom Mannesmannufer 2 x00-000-000-0000
GmbH 40213 Dusseldorf
Attn: Xxxxxxxxx Xxxxxx Germany
EKOM Telekommunications Mannesmannufer 2 49-211-820-2493
Holding AG 40213 Dusseldorf
Attn: Xxxxxxxxx Xxxxxx Germany
EHG Einkaufs- und Handels GmbH
c/o Western Wireless International Corporation
0000 000xx Xxxxxx X.X. 000-000-000-0000
Attn: Xxxxxxx Xxxxxxx Xxxxx 000 Xxxxxxxx, XX 00000
12.4 A Party may notify the other Party or Parties to this Agreement of a
change to its name, relevant addressee, address or facsimile number for
the purposes of Clause 12.3 provided that such notification shall only
be effective on:
(a) the date specified in the notification as the date on which the
change is to take place; or
(b) if no date is specified or the date specified is less than 5
(five) clear Business Days after the date on which notice is
given, the date falling 5 (five) clear Business Days after notice
of any such change has been given.
13. ANNOUNCEMENTS
13.1 Subject to Clause 13.2, no announcement concerning the sale of the
Shares or any ancillary matter shall be made by any Party without the
prior written approval of the other Party or Parties, such approval not
to be unreasonably withheld or delayed.
13.2 Any Party may make an announcement or filing with a securities exchange
or regulatory or governmental body concerning the sale of the Shares or
any ancillary matter if required by:
(a) the law of any relevant jurisdiction;
(b) any securities exchange or regulatory or governmental body to
which either Party is subject or submits, wherever situated,
whether or not
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the requirement has the force of law, in which case the Party
concerned shall take all such steps as may be reasonable and
practicable in the circumstances to agree the contents of such
announcement or filing with the other Party or Parties before
making such announcement or filing.
13.3 The restrictions contained in this clause shall continue to apply after
Closing without limit in time.
14. CONFIDENTIALITY
14.1 Subject to Clause 14.2, each Party shall treat as strictly confidential
all information received or obtained as a result of entering into or
performing this Agreement which relates to:
(a) the provisions of this Agreement;
(b) the negotiations relating to this Agreement;
(c) the subject matter of this Agreement; or
(d) the other Party or Parties.
14.2 Any Party may disclose information which would otherwise be confidential
if and to the extent:
(a) required by the law of any relevant jurisdiction;
(b) required by any rule or regulation issued by any securities
exchange or regulatory or governmental body to which either Party
is subject or submits, wherever situated, whether or not any such
rule or regulation for information has the force of law;
(c) disclosed to the professional advisers, auditors and bankers of
each Party, provided that the disclosing Party shall ensure that
such advisers, auditors and bankers are bound by materially
identical confidentiality obligations;
(d) the information has come into the public domain through no fault
of that Party; or
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(e) the other Party has or the other Parties have given prior written
approval to the disclosure, such approval not to be unreasonably
withheld or delayed,
provided that any such information disclosed pursuant to paragraph (a)
or (b) shall be disclosed only after notice to the other Party.
14.3 The restrictions contained in this clause shall continue to apply after
Closing of the sale and purchase of the Shares under this Agreement
without limit in time.
15. COSTS AND EXPENSES/TAXES
15.1 Each Party shall pay its own costs and expenses including the fees of
its professional advisers in relation to the investigation and
negotiation of the sale of the Shares and to the preparation, execution
and carrying into effect of this Agreement and all other documents
referred to in it.
15.2 All costs, duties, transfer taxes (Verkehrssteuern) and fees incurred in
connection with this Agreement, including, but not limited to notarial
fees and registration fees in connection with this Agreement, shall be
borne by Purchaser. All taxes due as a result of the funding of EKOM
shall be borne by the Vendors or Vodafone, as the case may be, and on or
before the EKOM Option Exercise Date, Vendors or Vodafone shall
indemnify EKOM from any liabilities arising out of or in connection with
such taxes.
16. COUNTERPARTS
16.1 This Agreement may be executed in any number of counterparts, and by the
Parties on separate counterparts, but shall not be effective until each
Party has executed at least one counterpart.
16.2 Each counterpart shall constitute an original of this Agreement, but all
the counterparts shall together constitute but one and the same
instrument.
17. SEVERABILITY
Should any provision of this Agreement be or become wholly or in part
invalid or unenforceable, the validity and enforceability of all
remaining provisions of this Agreement shall not be affected thereby.
The invalid or
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unenforceable provision shall be deemed replaced by such valid and
enforceable provision which serves best the economic interests of the
Parties originally pursued with the invalid or unenforceable provision.
The same shall apply in case of an omission in this Agreement.
18. LANGUAGE
18.1 With the exception of the notarial deeds required to give effect to the
transaction contemplated hereunder, each notice, demand, request,
statement, instrument, certificate, or other communication given,
delivered or made by one Party to another under or in connection with
this Agreement shall be:
(a) in English; or
(b) if not in English, accompanied by an English translation made by
a translator, and certified by such translator in a manner
approved by the receiving Party.
18.2 The receiving Party shall be entitled to assume the accuracy of, and to
rely upon, any English translation of any document provided pursuant to
Clause 18.1 (b).
19. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of Austria without regard to the principles of conflict of laws
thereof.
20. DISPUTE RESOLUTION
20.1 In the event of any dispute, controversy or claim arising out of or in
connection with this Agreement (including any schedule or attachment
hereto) or the breach, termination or validity of this Agreement, the
Parties shall use all reasonable endeavours to resolve the matter on an
amicable basis. If one Party serves formal written notice on the other
Party or Parties that a material dispute, controversy or claim of such a
description has arisen and the Parties are unable to resolve the dispute
within a period of thirty (30) days from the service of such notice,
then the dispute, controversy or claim shall be referred to the
respective senior executives of the Vendors and the Purchaser. No
recourse to arbitration by one Party against the other Party or
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Parties under this Agreement shall take place unless and until such
procedure has been followed.
20.2 If the senior executives of the Purchaser and the Vendors shall have
been unable to resolve any dispute, controversy or claim referred to
them under Clause 20.1 within a period of ten (10) days from referral to
the senior executives, that dispute, controversy or claim shall be
referred to and finally settled by arbitration under and in accordance
with the Rules of Arbitration of the International Chamber of Commerce
by three arbitrators appointed in accordance with those rules. The place
of arbitration shall be Zurich, Switzerland. The arbitration proceedings
shall be conducted, and the award shall be rendered, in the English
language.
20.3 The Parties hereby waive any rights of application and appeal to any
court or tribunal of competent jurisdiction (including without
limitation the courts of Germany, Austria, Switzerland, the United
States and England) to the fullest extent permitted by law in connection
with any question of law arising in the course of the arbitration or
with respect to any award made except for actions relating to
enforcement of the arbitration agreement or an arbitral award and except
for actions seeking interim or other provisional relief in aid of
arbitration in any court of competent jurisdiction.
IN WITNESS whereof the parties have entered into this Agreement the day
and year first before written.
/s/ XXXXXXX XXXXXXXXXXX /s/ XXXXXXX XXXXXXXXXXX
----------------------------- ------------------------------------
Mannesmann Eurokom GmbH EKOM Telecommunications Holding AG
/s/ XXXXXXX X. XXXXXXX
------------------------------
EHG Einkaufs- und Handels GmbH
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SCHEDULE 1
CONDITIONS TO CLOSING
REFERRED TO IN CLAUSE 3 (CONDITIONS)
1. AUSTRIAN MERGER CONTROL
The Parties shall have received confirmation, evidenced by a letter of Cartel
Court or a joint letter signed by Vendors' and Purchaser's Counsel that:
1.1 the time period set forth in Sec. 42b(1) of the Austrian Cartel Act
(Kartellgesetz) and, if the Cartel Court has scheduled a hearing
pursuant to Sec. 44a(3) of the Austrian Cartel Act (Kartellgesetz), the
time period set forth in Sec. 44a(3) of the Austrian Cartel Act
(Kartellgesetz) has expired without examination proceedings having been
initiated; or
1.2 the transactions contemplated in this Agreement do not constitute a
concentration pursuant to Sec. 41 of the Austrian Cartel Act
(Kartellgesetz); or
1.3 the transactions contemplated in this Agreement are not prohibited; or
1.4 if investigation proceedings have been initiated by the Cartel Court; a
period of 5 (five) months has expired after the filing of the
concentration with the Cartel Court.
2. REGULATORY APPROVAL
tele.ring GmbH shall have received a Decree (Bescheid) of
Telekom-Control-Kommission approving the changes in ownership contemplated in
this Agreement pursuant to condition 15 of the GSM Licence without any condition
that can not be satisfied by virtue of the existence of the Loan Agreement.
3. HSR
Purchaser to confirm that the applicable waiting period under the Xxxx Xxxxx
Xxxxxx Antitrust Improvements Act ("HSR"), as amended, has expired.
4. LOAN AGREEMENT AND LOAN GUARANTEE
The Loan Agreement shall have been duly executed by EKOM and delivered to
tele.ring GmbH. The Loan Guarantee shall have been delivered by Vodafone
Deutschland GmbH to tele.ring GmbH.
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5. DELIVERY OF DOCUMENTATION
Western Wireless International Corporation shall have executed and delivered to
the Vendors an original letter in conformity with Schedule 16. Further Purchaser
shall have delivered to Vendors a copy of the audited financial statements of
Western Wireless International Corporation, Delaware, as of December 31, 2000.
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SCHEDULE 2
MERGER CONTROL AND REGULATORY APPROVAL
REFERRED TO IN CLAUSE 3 (CONDITIONS)
1. MERGER CONTROL
Following the execution of this Agreement, the Purchaser shall, as soon as
possible, apply for the clearance of the transactions contemplated in this
Agreement to the Cartel Court and, if necessary, approval under HSR. Vendors
agree to cause tele.ring GmbH to provide all information reasonably necessary
for purposes of completing any relevant application to be prepared by Purchaser.
2. REGULATORY APPROVAL
Following the execution of this Agreement Vendors shall cause tele.ring GmbH, as
soon as possible, after the date hereof to notify Telekom-Control-Kommission of
the changes in the shareholder structure of tele.ring GmbH and tele.ring KEG
contemplated by this Agreement and to apply for the approval thereof under
condition 15 of the GSM Licence.
3. COOPERATION
The Parties undertake to use their commercially reasonable endeavors to ensure
that the approvals and/or clearances referred to in this Schedule are obtained
as soon as practicable and without undue delay. Upon request by the Purchaser
and at Purchaser's cost, the Vendors shall use their reasonable commercial
efforts to help Purchaser to comply with any conditions or obligations imposed
upon Purchaser or tele.ring GmbH, if and to the extent necessary to carry out
the transactions contemplated hereunder.
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SCHEDULE 3
CLOSING ARRANGEMENTS
REFERRED TO IN CLAUSE 5 (CLOSING)
At Closing:
1. Vendors shall deliver to the Purchaser or the Purchaser's Counsel:
(a) evidence reasonably satisfactory to Purchaser of the approval of the
transactions contemplated in this Agreement by the partners' meeting of
tele.ring KEG in accordance with its articles of association;
(b) evidence reasonably satisfactory to Purchaser of the approval of the
transactions contemplated in this Agreement by
Telekom-Control-Kommission in accordance with Condition 2.
(c) (i) audited balance sheets as of December 31, 1999 and 2000 (ii)
audited income statements for the three-year period ended December 31,
2000 (or since inception, if shorter)
2. Vendors and Purchaser shall sign all necessary documents to effect the
sales and transfers set forth in Clause 2.1 of this Agreement.
3. Purchaser shall pay to Vendors the Purchase Price.
4. An application to the commercial register for registration of the
Purchaser as the new limited partner has been signed providing for the
registration of the Purchaser as the individual successor of the
Vendors.
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SCHEDULE 4
REPRESENTATIONS AND WARRANTIES OF THE VENDORS
REFERRED TO IN CLAUSE 1 (DEFINITIONS AND INTERPRETATION)
The Vendors represent and warrant to the Purchaser as follows:
1. Organization. tele.ring GmbH and MM3G each are corporations duly
organized and validly existing under the laws of Austria. tele.ring KEG
is a limited partnership duly organized and validly existing under the
laws of Austria.
2. Corporate Power. tele.ring GmbH, tele.ring KEG and MM3G each have all
requisite corporate or partnership power and authority to own, lease and
operate their respective assets, properties and businesses and to carry
on their respective businesses as now conducted.
3. Binding Agreement. This Agreement constitutes and the other documents
executed by the Vendors which are to be delivered at Closing will when
executed, constitute legal, valid and binding obligations of the Vendors
in accordance with their respective terms.
4. Ownership and Transfer of the Shares. The Vendors own beneficially and
of record, and have good and valid title to, all of the Shares free and
clear of liens, encumbrances and options. Each Vendor has the corporate
power and authority to transfer the Shares being transferred by it to
Purchaser at the Closing.
5. Capitalization tele.ring GmbH, MM3G. The issued and outstanding shares
in tele.ring GmbH and MM3G owned by MEU, EKOM and tele.ring KEG,
respectively, are all of the issued and outstanding shares of tele.ring
GmbH and MM3G, have been duly authorized and are validly issued and
fully paid up or contributed in kind. No further share capital,
non-voting stock, option rights, commercial papers, convertible bonds or
other equity or similar instruments of tele.ring GmbH or MM3G have been
issued or agreed to be issued; the Shares are not subject to any
liabilities for further capital calls. MEU and EKOM are the only limited
partners of tele.ring KEG; their stated capital contributions have been
fully paid up or contributed in kind.
6. Indebtedness. At Closing, with the exception of any debt incurred
pursuant to the Loan Agreement, no intra-group debt ("Intra-group Debt")
between Vodafone and its affiliates on the one hand and tele.ring KEG or
tele.ring GmbH on the other hand exists. Other than trade payables to
suppliers, tele.ring GmbH has not taken out other third party loans
("Drawn Third Party
36
Loans") prior to the Closing Date. The Consolidated Closing Net Working
Capital of tele.ring GmbH and tele.ring KEG is equal to or in excess of
_ 0 (in words: EURO zero) (The Consolidated Closing Net Working Capital,
collectively with Intra-group Debt and Drawn Third Party Loans, is the
"Indebtedness").
7. No Violations. None of the execution and the delivery of this Agreement
by the Vendors, the consummation by the Vendors of the transactions
contemplated hereby or compliance by the Vendors with any of the
provisions hereof will conflict with or result in any breach or
violation of any provisions of the articles of association or any other
governing document of the Vendors, tele.ring GmbH or tele.ring XXX.
0. Litigation. Neither tele.ring GmbH nor tele.ring KEG or any of their
subsidiaries are involved in any litigation or arbitration or
administrative law proceedings relating to claims or amounts which, if
decided adversely for tele.ring GmbH or tele.ring KEG, would have a
material adverse effect on their respective businesses other than those
disclosed in Schedule 8 or adequately provided for on the respective
balance sheets for the financial year ended 31 December 2000.
9. Employees and Employee Benefits. Except as disclosed in Schedules 9 and
11, neither tele.ring GmbH nor tele.ring KEG or any of their respective
subsidiaries have entered into any material collective bargaining
agreements, material written company works agreements or similar
material written agreements with any labour or employee association or
organization with respect to any of their respective employees.
10. No Violation of Law. None of the business activities carried out by
tele.ring GmbH and tele.ring KEG as of Closing materially conflicts with
or results in any material violation of Austrian law directly applicable
to the business.
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SCHEDULE 5
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
REFERRED TO IN CLAUSE 1 (DEFINITIONS AND INTERPRETATION)
The Purchaser represents and warrants to the Vendors as follows:
1. Organization. The Purchaser is a corporation duly organized and validly
existing under the laws of Austria.
2. Corporate Power. The Purchaser has the full power and authority to
execute and deliver this Agreement, and, upon fulfillment of the
Conditions, to consummate the transactions contemplated hereby.
3. Binding Agreement. This Agreement constitutes and the other documents
executed by the Purchaser which are to be delivered at Closing will,
when executed, constitute valid and binding obligations of the Purchaser
in accordance with their respective terms.
4. No Violations. None of the execution and the delivery of this Agreement
by the Purchaser, the consummation by the Purchaser of the transactions
contemplated hereby or compliance by the Purchaser with any of the
provisions hereof will conflict with or result in any breach or
violation of any provisions of the articles of association or any other
governing document of the Purchaser.
5. Disclosure.
(a) The Purchaser has relied solely on its own enquiries and the
documentation provided for in a data room as scheduled in the attached
data room index (Schedule 11) in entering into this Agreement and
without limiting the generality of the foregoing, the Purchaser has not
relied on any representation with respect to any future matter
(including profit forecasts, predictions and projections).
(b) The Purchaser has had independent legal, financial and technical
advice relating to the evaluation of this Agreement and the information
and documents disclosed to him.
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SCHEDULE 6
VENDORS' LIMITATION ON LIABILITY
REFERRED TO IN CLAUSES 6.3, 7.3 AND 8 (REMEDIES, LIMITATIONS ON LIABILITY)
1. Limitation on quantum
(a) The Purchaser shall not be entitled in any event to damages or other
payment in respect of any claim or claims under the Vendors' Warranties
in respect of any claim (i) that is less than E50,000 for any individual
breach of the Vendor's Warranties, or (ii) unless the aggregate of
Purchaser's claims individually exceeding E50,000 is more than E10
million (deductible). In the event that the aggregate of claims of
Purchaser within the meaning of subsection (ii) of this Clause 1(a)
exceeds the deductible of E10 million, then Purchaser shall, subject to
the other limitations contained in this Schedule 6, be entitled to
damages in respect of the amount that exceeds the E10 million
deductible.
(b) The total aggregate liability of the Vendors under the Vendors'
Warranties, which liability shall be joint and several shall not in any
event exceed an amount equal to E40 million. This limitation shall not
apply to the representation as to the Indebtedness of tele.ring GmbH and
tele.ring KEG contained in Section 6 of Schedule 4 to the Agreement.
2. Time limits for bringing claims
No claim shall be brought against the Vendors in respect of any of the
Vendors' Warranties unless the Purchaser shall have given to the Vendors
written notice of such claim specifying in reasonable detail the matter
which gives rise to the claim, the nature of the claim and the amount
claimed in respect thereof on or before the date which is twenty-one
months after the Closing Date.
3. Previous Vendors
If and to the extent a breach of any of the Vendors' Warranties at the
same time constitutes a breach of a representation of previous vendors
of shares to the Vendors, Purchaser's remedies shall be limited to the
assignment of
39
Vendors' claims against such previous vendors (or the distribution of
the proceeds thereof). Vendors shall use their best efforts to assist
Purchaser to recover from previous Vendors under such assigned claims.
4. Disclosure
The Purchaser shall not be entitled to claim that any fact, matter or
circumstance causes any of the Vendors' Warranties to be breached if in relation
to any fact, matter or circumstance forming the basis of the claim:
(a) the Purchaser had actual knowledge of it on or before the date of
this Agreement or
(b) such fact, matter or circumstance was fully and fairly disclosed in
the documents provided to Purchaser, and for this purpose "fully and
fairly disclosed" means disclosed in such a manner and in such detail as
to enable a reasonable purchaser to make an informed and accurate
assessment of the fact, matter or circumstance concerned.
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SCHEDULE 7
PURCHASER'S LIMITATION ON LIABILITY
REFERRED TO IN CLAUSE 9 (REMEDIES, LIMITATIONS ON LIABILITY)
1. Exclusion of further claims
All claims of the Purchaser not based on the breach of the Vendors' Warranties
shall be excluded, whether they be claims for a reduction of the Purchase Price,
for cancellation (Wandlung) or rescission of the Agreement, for payment of
damages or other legal consequences, and regardless of the legal basis
(including without limitation liability for defects, liability for imperfection
in title, culpa in contrahendo and voidability). Any claims for specific
performance (Erfullungsanspruche) and claims arising from the violation of
obligations expressly assumed in this Agreement shall not be affected.
Any claims of the Purchaser based upon the intentional misconduct of the Vendors
shall not be limited by the provisions of this Schedule 7.
2. Limitation on quantum
The Vendors shall not be entitled in any event to damages or other payment in
respect of any claim or claims under the Purchaser's Warranties in respect of
any individual claim for less than E50,000.
No claim shall be brought by the Vendors under any of the Purchaser's Warranties
unless the aggregate liability of the Purchaser in respect of all claims exceeds
E10 million, in which event the Vendors shall be entitled to damages in respect
of the amount in excess of E10 million.
The total aggregate liability of the Purchaser under the Purchaser's Warranties
shall not in any event exceed an amount equal to E40 million.
3. Time limits for bringing claims
No claim shall be brought against the Purchaser in respect of any of the
Purchaser's Warranties unless the Vendors shall have given to the Purchaser
written notice of such claim specifying in reasonable detail the matter which
gives rise to the claim, the nature of the claim and the amount claimed in
respect thereof on or before the date which is twelve months after the Closing
Date.
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SCHEDULE 8
MATERIAL LITIGATION
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SCHEDULE 9
EMPLOYEES AND EMPLOYEE BENEFITS
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SCHEDULE 11
DATA ROOM INDEX
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SCHEDULE 12
CERTAIN INTRA-GROUP AGREEMENTS
Services provided by Vodafone Telecommerce:
1. Use of the Dusseldorf-based (Ratingen) hardware for the billing engine,
CBAT (customer care and billing) - contract until 2002 - batch
operations
2. Use of the Dusseldorf-based Datawarehouse Amdocs
3. Use of billing software (NASS)
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SCHEDULE 13
CLOSING DATE BALANCE SHEET PROCEDURES
A. Draft Balance Sheet
1. Not less than three days prior to Closing, Vendors shall cause tele.ring
GmbH to prepare a consolidated balance sheet of tele.ring GmbH and
tele.ring KEG as at the most recent date practicable (the "Draft Balance
Sheet") on the assumption that all debt from Vodafone or any of its
Affiliates and any third-party debt have been contributed to the capital
of such entities. After preparation of the Draft Balance Sheet, it shall
be promptly delivered to Purchaser together with such back up
information that shall enable Purchaser to verify the accuracy thereof.
Within two days after receipt of the Draft Balance Sheet, Vendor and
Purchasers shall meet and shall agree on the amount of Consolidated
Closing Net Working Capital as of the date of the Draft Balance Sheet.
2. Within two days after agreement upon the Draft Balance Sheet, Vendors
shall provide to tele.ring GmbH the amount by which Consolidated Closing
Net Working Capital as at the date of Draft Balance Sheet is a negative
number.
B. Closing Date Balance Sheet
1. Not more than 30 days after Closing, Purchaser shall cause a Balance
Sheet to be prepared as at the Closing Date ("Closing Balance Sheet") in
order to verify whether or not the Consolidated Closing Net Working
Capital is zero. After preparation of the Closing Balance Sheet,
Purchaser shall promptly deliver a copy thereof to Vendors together with
such back-up information that shall enable Vendors to verify the
accuracy thereof.
2. In the event that the Closing Date Balance Sheet shows that Consolidated
Closing Net Working Capital is a negative number, Vendors shall within
10 days after receipt of the Closing Balance Sheet pay the amount
thereof to Purchasers, unless prior to the end of such 10 day period
Vendors give written notice to Purchaser that Vendors disagree with the
method of preparation of the Closing Date Balance Sheet, which notice
shall specify in detail the reasons therefore. In the event that Vendors
fail to give such timely notice, Vendors shall be deemed to have agreed
with the Closing Balance Sheet and shall, within two days thereafter pay
by wire transfer the amount by which such Consolidated Closing Net
Working Capital was negative or if the Consolidated Closing Net Working
Capital was a positive number, Purchasers shall cause tele.ring GmbH to
pay to Vendors such amount.
46
3. In the event that Vendors disagree with the manner in which the Closing
Balance Sheet was prepared, the parties shall meet in order to attempt
to resolve any differences. If such resolution cannot be achieved within
5 days, either party may, by notice to the other, designate a Big 5
accounting firm (the "First Firm") to determine whether the Closing
Balance Sheet was properly prepared. The First Firm shall promptly
determine whether the Closing Balance Sheet was properly prepared unless
the other Party elects, within 3 days after receipt of the notice, to
designate another Big 5 accounting firm (the "Second Firm") by giving
notice to the Party which designated the First Firm. If Vendors so
elect, the First and Second Firms shall within 3 days of the appointment
of the Second Firm select a Third Big 5 accounting firm (the "Third
Firm") to make such determination.
4. If the First Firm and the Second Firm fail to mutually agree on the
Third Firm within 3 days, the Third Firm shall be appointed by the
President of the Vienna Chamber of Accountants upon request from either
Vendors or Purchaser.
5. The Third Firm shall make such determination as promptly as practicable
but in any event within 10 days of its appointment. The determination of
the Third Firm shall be final and binding on the parties and not subject
to further review or appeal.
6. The difference between zero and the actual amount of Consolidated
Closing Net Working Capital shall be paid by the appropriate party to
the other taking into consideration any payments made pursuant to Clause
A.2 of this Schedule 13.
7. Each party shall pay the costs of the firm that it designated and the
cost of the Third Firm shall be shared equally.
