STOCK PURCHASE AGREEMENT
between
PLD TELEKOM INC.
and
CABLE AND WIRELESS PLC
Dated April 19, 1998
TABLE OF CONTENTS
Page
ARTICLE I
SALE OF STOCK; CONSIDERATION..............................2
1.1. Sale by C&W.........................................2
1.2. Consideration for the Sale by C&W...................2
ARTICLE II
THE CLOSING...............................................2
2.1. Time and Place of Closing...........................2
2.2. Deliveries by C&W...................................3
2.3. Deliveries by Buyer.................................3
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF C&W.....................3
3.1. Organization.........................................3
3.2. Authority Relative to this Agreement.................4
3.3. Title...............................................4
3.4. Consents and Approvals; No Violation................4
3.5. Financial Statements; Undisclosed Liabilities.......5
3.6. Fees and Commissions................................5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER...........6
4.1. Organization. ......................................6
4.2. Authority Relative to this Agreement. ..............6
4.4. Consents and Approvals; No Violation; Receipt
of Information......................................6
4.5. Fees and Commissions................................7
ARTICLE V
COVENANTS OF THE PARTIES..................................7
5.1. Conduct of Business of CIBBV........................7
i
Page
5.2. Expenses............................................8
5.3. Further Assurances..................................8
5.4. Public Statements...................................8
5.5. Consents and Approvals..............................9
5.7. Supplements to Schedules...........................10
5.8. Xxxx-Xxxxx-Xxxxxx..................................10
5.9. Termination of Intercompany Agreements;
Settlement of Liabilities..........................10
5.10. Maintenance of Guarantee..........................11
5.11. Secondment........................................11
ARTICLE VI
CLOSING CONDITIONS.......................................11
6.1. Conditions to Each Party's Obligations to Effect
the Transactions Contemplated Hereby. ............11
6.2. Conditions to Obligations of Buyer.................12
6.3. Conditions to Obligations of C&W...................12
ARTICLE VII
TERMINATION AND ABANDONMENT..............................13
7.1. Termination........................................13
7.2. Procedure and Effect of Termination................14
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION.............14
8.1. Survival of Representations.........................14
8.2. C&W's Indemnification of Buyer.....................14
8.3. Buyer's Indemnification of C&W.....................15
8.4. Conditions of Indemnification......................15
8.5. Cushion............................................16
8.6. Limitation of Liability............................16
8.7. Remedies Cumulative................................17
ARTICLE IX
MISCELLANEOUS PROVISIONS.................................17
ii
Page
9.1. Amendment and Modification. .......................17
9.2. Waiver of Compliance; Consents.....................17
9.3. Notices............................................18
9.4. Assignment.........................................19
9.5. Confidentiality....................................19
9.6. Governing Law......................................20
9.7. Counterparts.......................................20
9.8. Interpretation.....................................20
9.9. Entire Agreement...................................20
iii
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), dated
April 19, 1998, by and between:
PLD Telekom Inc., a company incorporated under the
laws of the State of Delaware ("Buyer"), with an address at 000
Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and
Cable and Wireless plc, a company registered under the
laws of England under the number 238525 ("C&W"), with an address
at 000 Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX.
W I T N E S S E T H:
WHEREAS, C&W owns directly 100 shares of common stock,
par value NLG 400 per share, of CommStruct International
Byelorussia BV, a company organized under the laws of The
Netherlands ("CIBBV"), constituting 100% of the issued and
outstanding capital stock of CIBBV (the "CIBBV Shares"), which is
the owner of (i) fifty percent (50%) of the outstanding common
equity interests (the "Belcel Shares") in Belarus-Netherlands
Belcel Joint Venture ("Belcel") and (ii) one hundred percent
(100%) of the outstanding common equity interests (the "Baltic
Operations Shares") in Baltic Operations Ltd. - Latvia ("Baltic
Operations", and together with CIBBV and Belcel, the "CIBBV
Group"); and
WHEREAS, C&W desires to sell and transfer, or to cause
the sale and transfer, to Buyer, and Buyer desires to purchase,
the CIBBV Shares, as more specifically provided herein;
NOW, THEREFORE, in consideration of the premises and
the mutual covenants and agreements hereinafter set forth, the
parties, intending to be legally bound, hereby agree as follows:
ARTICLE I
SALE OF STOCK; CONSIDERATION
1.1. Sale by C&W. Upon the terms and subject to the
satisfaction of the conditions contained in this Agreement, C&W
agrees to sell, assign, transfer and deliver to Buyer, and Buyer
agrees to purchase and acquire, all of the right, title and
interest of C&W in and to the CIBBV Shares. In addition, C&W will
assign to Buyer or its designee the benefit of the Loan
Agreement, dated November 28, 1995, between C&W and CIBBV, as
amended (the "Loan Agreement").
1.2. Consideration for the Sale by C&W. On the Closing
Date (as hereinafter defined) and upon the terms and subject to
the satisfaction of the conditions contained in this Agreement,
Buyer will issue and deliver to C&W an aggregate of 500,000
newly-issued, fully paid and non-assessable shares of Common
Stock (the "Buyer Shares"), par value $0.01 per share, of Buyer,
registered in the name of C&W or its designee or nominee,
allocated as follows :
(a) an aggregate of 200,000 shares of Common
Stock of Buyer in consideration of the aforesaid sale,
assignment, transfer and delivery of the CIBBV Shares
(b) an aggregate of 300,000 shares of Common
Stock of Buyer in consideration of the aforesaid assignment of
the Loan Agreement.
ARTICLE II
THE CLOSING
2.1. Time and Place of Closing. Subject to the terms
and conditions of this Agreement, the consummation of the
transaction contemplated hereby (the "Closing") shall take place
at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 on the third Business
Day (as defined herein) after Buyer shall have delivered to C&W
written notice that the conditions set forth in Section 6.2
hereof have been satisfied (the "Closing Date") or at such other
time and place as shall be determined by mutual agreement of the
parties.
2
2.2. Deliveries by C&W. At the Closing, C&W will
deliver or cause to be delivered the following to Buyer:
(a) duly certified evidence, acceptable to Buyer,
of one or more entries in the share registry of CIBBV evidencing
the transfer of title to the CIBBV Shares to Buyer, together with
any other documents that are necessary to transfer to Buyer good
and marketable title to the CIBBV Shares;
(b) duly executed documentation, in form and
substance reasonably acceptable to Buyer, evidencing the
assignment of the benefit of the Loan Agreement to Buyer or its
designee;
(c) the Officer's Certificate referred to in
Section 6.2(e) hereof; and
(d) such other documents, instruments and
writings as are reasonably required to be delivered by C&W at or
prior to the Closing Date pursuant to this Agreement or otherwise
reasonably required in connection herewith.
2.3. Deliveries by Buyer. At the Closing, Buyer will
deliver the following to C&W:
(a) one or more stock certificates, registered in
the name of C&W or its nominee or designee, representing the
Buyer Shares;
(b) the Officer's Certificate referred to in
Section 6.3(c) hereof; and
(c) such other documents, instruments and
writings as are reasonably required to be delivered by Buyer at
or prior to the Closing Date pursuant to this Agreement or
otherwise reasonably required in connection herewith.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF C&W
C&W represents and warrants to Buyer as follows:
3.1. Organization.
(a) C&W is a public limited company duly
organized and validly existing under the laws of England and has
all requisite power to enter into this Agreement and to dispose
of the CIBBV Shares in accordance with this Agreement and to
perform the transactions contemplated hereby.
3
(b) CIBBV is a company duly organized and validly
existing under the laws of The Netherlands. C&W has heretofore
delivered to Buyer complete and correct copies of the
organizational documents of CIBBV as currently in effect.
3.2. Authority Relative to this Agreement. C&W has
full corporate power and authority to execute, deliver and
perform its obligations under this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery
of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by C&W,
and no other corporate proceedings on the part of C&W are
necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by C&W, and assuming that this
Agreement constitutes a valid and binding agreement of Buyer,
constitutes a valid and binding agreement of C&W, enforceable
against C&W in accordance with its terms, except that such
enforceability may be limited by applicable bankruptcy,
insolvency, moratorium or other similar laws affecting or
relating to enforcement of creditors' rights generally or general
principles of equity.
3.3. Title.
(a) C&W directly owns the CIBBV Shares that are
the subject of this Agreement free and clear of all pledges,
security interests, liens, charges, encumbrances, claims, options
or limitations affecting its ability to vote such shares or to
transfer such shares to Buyer or to exercise any other rights
appurtenant thereto. The CIBBV Shares that are the subject of
this Agreement are the only shares or other equity interests in,
or agreements, contracts, instruments, arrangements or
understandings enabling a party upon exercise or conversion to
acquire shares or other equity interests in, CIBBV. At the
Closing, Buyer will acquire good title to the CIBBV Shares, free
and clear of all pledges, security interests, liens, charges,
encumbrances, claims, options or limitations of any nature
whatsoever. There is no subscription, option, warrant, call,
right, agreement or understanding for the sale, delivery,
assignment or transfer by C&W of the CIBBV Shares.
(b) Subject, in the case of the Belcel Shares, to
the provisions of the charter of Belcel, CIBBV owns the Belcel
Shares and the Baltic Operations Shares free and clear of all
pledges, security interests, liens, charges, encumbrances,
claims, options or limitations affecting its ability to vote such
shares or to exercise any other rights appurtenant thereto.
4
3.4. Consents and Approvals; No Violation.
(a) Except as set forth in Schedule 3.4, neither
the execution and delivery of this Agreement by C&W, nor the sale
by C&W of the CIBBV Shares pursuant to this Agreement, will (i)
conflict with or result in any breach of any provision of the
Articles of Incorporation or Bylaws, or similar charter
documents, of C&W or Belcel or (ii) require any consent,
approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority to be
made or obtained by C&W or CIBBV.
(b) Except as set forth in Schedule 3.4, C&W is
not required to make or obtain any declaration, filing or
registration with, or notice to, or authorization, consent or
approval of any governmental or regulatory body or authority for
the consummation by C&W of the transactions contemplated hereby.
3.5. Financial Statements; Undisclosed Liabilities.
(a) C&W has previously furnished to Buyer copies
of CIBBV's unaudited (i) balance sheets as of December 31, 1997
and (ii) related unaudited statements of income and retained
earnings and changes in financial position of CIBBV for the
fiscal year then ended. To the knowledge of C&W, such financial
report presents fairly the financial information purported to be
set forth therein as of the dates, or for the periods, described
therein, all in conformity with the accounting principles
described therein. Notwithstanding the foregoing, C&W is making
no representation as to whether the receivables set out in the
financial statements are or will be collectible.
(b) Except as set forth in Schedule 3.5, to the
knowledge of C&W, CIBBV has not incurred any material liability
or obligation, secured or unsecured (whether absolute, accrued,
contingent or otherwise, and whether due or to become due), of a
nature required by generally accepted accounting principles to be
reflected in a corporate balance sheet or disclosed in the notes
thereto, which are not accrued or reserved against in the
financial reports referred to in Section 3.5(a) hereof or
disclosed in the notes thereto in accordance with generally
accepted accounting principles whether at or after the date of
the financial report referred to in Section 3.5(a) hereof, except
those which were incurred in the ordinary course of business in
line with past practice.
3.6. Fees and Commissions. No broker, finder or other
person is entitled to any brokerage fees, commissions or finder's
fees in connection with the transaction contemplated hereby by
reason of any action taken by C&W. C&W hereby covenants that it
will pay to Buyer or otherwise discharge, and will indemnify and
hold Buyer harmless from and against, any and all claims or
liabilities for all brokerage fees,
5
commissions and finder's fees (other than as described above)
incurred by reason of any action taken by C&W.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to C&W as follows:
4.1. Organization. Buyer is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Delaware. Buyer has heretofore delivered to C&W
complete and correct copies of its Certificate of Incorporation
and Bylaws as currently in effect.
4.2. Authority Relative to this Agreement. Buyer has
full power and authority to execute, deliver and perform all
obligations under this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by
Buyer and no other proceedings on the part of Buyer are necessary
to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly
executed and delivered by Buyer, and assuming that this Agreement
constitutes a valid and binding agreement of C&W, constitutes a
valid and binding agreement of Buyer, enforceable against Buyer
in accordance with its terms, except that such enforceability may
be limited by applicable bankruptcy, insolvency, moratorium or
other similar laws affecting or relating to enforcement of
creditors' rights generally or general principles of equity.
4.3. Buyer Shares. The Buyer Shares, when issued in
accordance with the terms and conditions of this Agreement, will
be validly issued, fully paid and non-assessable shares of Common
Stock of Buyer, free and clear of all pledges, security
interests, liens, charges, encumbrances, claims, options or
limitations affecting C&W's ability to vote such shares or to
exercise any other rights appurtenant thereto
4.4. Consents and Approvals; No Violation; Receipt of
Information.
(a) Except as set forth in Schedule 4.4, neither
the execution and delivery of this Agreement by Buyer nor the
purchase by Buyer of the CIBBV Shares pursuant to this Agreement
will (i) conflict with or result in any breach of any provision
of the organizational documents of Buyer, (ii) require any
consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, or
(iii) result in a default (or give rise to any right of
termination,
6
cancellation or acceleration) under any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, agreement,
lease or other instrument or obligation to which Buyer or any of
its subsidiaries are a party or by which any of their respective
assets may be bound, except for such defaults (or rights of
termination, cancellation or acceleration) as to which requisite
waivers or consents have been obtained.
(b) No declaration, filing or registration with,
or notice to, or authorization, consent or approval of any
governmental or regulatory body or authority is necessary for the
consummation by Buyer of the transactions contemplated hereby.
(c) Buyer or its counsel, accountants or other
advisers have requested, received, reviewed and considered all
information deemed relevant by them, including, without
limitation, information regarding currency and taxation issues,
in making the decision to enter into this Agreement and to
acquire the CIBBV Shares on the terms and conditions set forth
herein.
4.5. Fees and Commissions. No broker, finder or other
person is entitled to any brokerage fees, commissions or finder's
fees in connection with the transaction contemplated hereby by
reason of any action taken by Buyer making such representation.
Buyer hereby covenants that it will pay to C&W or otherwise
discharge, and will indemnify and hold C&W harmless from and
against, any and all claims or liabilities for all brokerage
fees, commissions and finder's fees (other than as described
above) incurred by reason of any action taken by Buyer.
ARTICLE V
COVENANTS OF THE PARTIES
5.1. Conduct of Business of CIBBV. Except as described
in Schedule 5.1, during the period from the date of this
Agreement to the Closing Date, C&W covenants that CIBBV will
conduct its business and operations according to its ordinary and
usual course of business consistent with past practice. Without
limiting the generality of the foregoing, and, except as
contemplated in this Agreement or as described in Schedule 5.1,
prior to the Closing Date, without the prior written consent of
Buyer, C&W will not permit CIBBV to:
(a) (i) create, incur or assume any amount of
indebtedness for money borrowed, other than in the ordinary
course of business in line with past practice, or (ii) assume,
guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations
of any other person except in the ordinary course of business in
line with past practice; provided, CIBBV may endorse
7
negotiable instruments in the ordinary course of business and may
enter into the proposed guarantee set forth on Schedule 3.5;
(b) declare, set aside or pay any dividend or
other distribution (whether in cash, stock or property or any
combination thereof) in respect of its capital stock, or redeem
or otherwise acquire any shares of its capital stock;
(c) enter into any agreement, commitment or
transaction (including without limitation any borrowing, capital
expenditure or capital financing), except agreements, commitments
or transactions in the ordinary course of business in line with
past practice or as contemplated herein; or
(d) enter into any contract, agreement,
commitment or arrangement, whether written or oral, with respect
to any of the transactions set forth in the foregoing paragraphs
(a) through (c).
5.2. Expenses. Whether or not the transactions
contemplated hereby are consummated, all costs and expenses
incurred in connection with this Agreement and the transactions
contemplated hereby shall be borne by the party incurring such
costs and expenses.
5.3. Further Assurances. Subject to the terms and
conditions of this Agreement, each of the parties hereto will use
all reasonable efforts to take, or cause to be taken, all action,
and to do, or cause to be done, all things reasonably necessary,
proper or advisable under applicable laws and regulations to
consummate and make effective the sale, assignment, transfer and
delivery of the CIBBV Shares to Buyer and the issuance and
delivery of the Buyer Shares to C&W pursuant to this Agreement.
From time to time after the date hereof, without further
consideration, C&W will, at its own expense, execute and deliver
such documents to Buyer as Buyer may reasonably request in order
more effectively to vest in Buyer good title to the CIBBV Shares
and to assign the benefit of the Loan Agreement (and any other
liabilities to be assigned to Buyer or its designee pursuant to
Section 5.9 hereof) to Buyer or its designee. From time to time
after the date hereof, without further consideration, Buyer will,
at its own expense, execute and deliver such documents to C&W as
C&W may reasonably request in order more effectively to
consummate the issuance and delivery of the Buyer Shares pursuant
to this Agreement.
5.4. Public Statements. The parties shall consult with
each other prior to issuing any public announcement, statement or
other disclosure with respect to this Agreement or the
transactions contemplated hereby and shall not issue any such
public announcement, statement or other disclosure prior to such
consultation, unless legally compelled (by deposition,
interrogatory, request for documents, subpoena, civil
8
investigative demand or similar process, or by order of a court
or tribunal of competent jurisdiction), or in order to comply
with applicable rules or requirements of any stock exchange,
government department or agency or other regulatory authority, or
by requirements of any securities law or regulation or other
legal requirement in circumstances where such consultation would
not be practicable.
5.5. Consents and Approvals.
(a) C&W and Buyer shall (i) promptly prepare and
file all necessary documentation, (ii) effect all necessary
applications, notices, petitions and filings and execute all
agreements and documents, (iii) use all reasonable efforts to
obtain all necessary permits, consents, approvals and
authorizations of all governmental bodies and (iv) use all
reasonable efforts to obtain all necessary permits, consents,
approvals and authorizations of all other parties, in the case of
C&W, as specified on Schedule 3.4 and, in the case of Buyer, as
specified on Schedule 4.4 (including without limitation any
approval required from the shareholders of Buyer and the holders
of the debt of the Buyer), together with any other approvals or
consents identified by the parties after the signing of this
Agreement as being required in order, respectively, for C&W to
sell, and for Buyer to acquire, the CIBBV Shares, and,
respectively, for Buyer to issue to C&W, and for C&W to acquire,
the Buyer Shares. Each of Buyer and C&W shall provide reasonable
assistance to the other in order to obtain the consents and
approvals referred to herein. Each of C&W and Buyer shall have
the right to review and be consulted in advance as to all
characterizations of the information relating to the transactions
contemplated by this Agreement which appear in any filing made in
connection with the transactions contemplated hereby. The parties
hereto agree that they will consult with each other with respect
to the obtaining of all such necessary permits, consents,
approvals and authorizations of all third parties and
governmental bodies.
(b) The parties hereto shall consult with each
other prior to proposing or entering into any stipulation or
agreement with any foreign or United States governmental
authority or agency or any third party in connection with any
foreign or United States governmental consents and approvals
legally required for the consummation of the transactions
contemplated hereby and shall not propose or enter into any such
stipulation or agreement without the other party's prior written
consent, which consent shall not be unreasonably withheld.
5.6. Completion of Ancillary Agreements. Subject to
the terms and conditions of this Agreement, each party will use
all reasonable efforts to take or cause to be taken, all action,
and do or cause to be done all things reasonably necessary,
proper or advisable to ensure the completion of, in the case of
C&W, the Share Purchase
9
Agreement, and in the case of Buyer, the Asset Exchange
Agreement, dated the date hereof, between Buyer and News America
(the "Asset Exchange Agreement") and the Directors Nomination
Agreement, between Buyer and News America, each in the form as
executed on the date hereof, and to perform all of their
respective obligations thereunder.
5.7. Supplements to Schedules. C&W, on the one hand,
and Buyer, on the other hand, shall have the right from time to
time prior to the Closing to supplement or amend its Schedules
with respect to any matter hereafter arising which if existing or
known at the date of this Agreement would have been required to
be set forth or described in such Schedules. Any such
supplemental or amended disclosure shall be deemed to have cured
any breach of any representation or warranty made in this
Agreement for purposes of this Agreement, but will not be deemed
to have cured any such breach made in this Agreement and to have
been disclosed as of the date of this Agreement for purposes of
determining whether or not the conditions set forth in Article VI
hereof have been satisfied.
5.8. Xxxx-Xxxxx-Xxxxxx. Buyer shall use its best
efforts to assist News America Incorporated ("News America") in
the prompt preparation and filing of the filing required to be
made by News America under Title II of the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"),
with respect to the transactions contemplated by the share
purchase agreement, dated as of the date hereof, between C&W and
News America (the "Share Purchase Agreement"), and Buyer shall
promptly, and in any event within five (5) Business Days (as
defined herein) from the date of this Agreement, make the filing
required to be made by Buyer under the HSR Act with respect to
the transactions contemplated by the Share Purchase Agreement.
5.9. Termination of Intercompany Agreements;
Settlement of Liabilities. At the Closing Date, the benefit of
the Loan Agreement shall be assigned to Buyer or its designee
pursuant to the terms of this Agreement. In addition, at or prior
to the Closing Date, all intercompany agreements relating to
loans or other indebtedness for money borrowed (including, for
the avoidance of doubt, on a "current account" basis), between
C&W or its subsidiaries or affiliates controlled by C&W (other
than the CIBBV Group), on the one hand, and and CIBBV, Belcel or
Baltic Operations, on the other hand, other than the Loan
Agreement, shall have either been terminated or assigned to Buyer
or its designee, in either case without any residual liability on
the part of CIBBV, Belcel or Baltic Operations thereunder to C&W
or any of its subsidiaries or affiliates controlled by C&W
outside of the CIBBV Group as of the Closing Date, and vice
versa. For the avoidance of doubt, this provision does not apply
to any amounts that might be required to be paid by Belcel to any
of C&W's subsidiaries or affiliates
10
controlled by C&W in relation to lines leased through the
Ministry of Transport of Belarus, Beltelekom or the Republican
Exchange.
5.10. Maintenance of Guarantee. Following completion
of the transactions contemplated hereby, C&W shall maintain, in
full force and effect, its corporate guarantee (the "Guarantee")
in relation to the obligations of Belcel under the Loan
Agreement, dated February 21, 1995, between Belcel and Nordbanken
until the earlier of the expiration of its obligations under the
Loan Agreement or until another guarantee is put in place,
provided that in no event shall C&W be required to increase or
extend its liabilities under the existing form of the Guarantee.
To the extent that C&W is called to perform its obligations under
the Guarantee in full or in part, Buyer shall indemnify C&W for
the full amount actually paid by C&W under the Guarantee. In
addition, Buyer shall not, and shall ensure that Belcel does not,
make further drawdowns under such Loan Agreement and shall use
best efforts to put a substitute guarantee in place.
5.11. Secondment. C&W shall use its best efforts to
second Xxxxxxx Xxxxxxxx and Xxx Xxxxx to Buyer under the terms of
the existing Agreement for the Provision of Support Services,
dated November 27, 1996, between C&W and Buyer, at cost plus
7.2%, for a period of six months from the Closing Date.
ARTICLE VI
CLOSING CONDITIONS
6.1. Conditions to Each Party's Obligations to Effect
the Transactions Contemplated Hereby. The respective obligations
of each party to effect the transactions contemplated hereby
shall be subject to the fulfillment at or prior to the Closing
Date of the following conditions:
(a) No preliminary or permanent injunction or
other order or decree by any federal, state, local or foreign
court which prevents the consummation of the transactions
contemplated hereby shall have been issued and remain in effect
(each party agreeing to use its reasonable best efforts to have
any such injunction, order or decree lifted) and no statute, rule
or regulation shall have been enacted by any federal, state,
local, or foreign government or governmental agency which
prohibits the consummation of the transactions contemplated
hereby;
(b) All foreign and United States federal, state
and local government consents and approvals required for the
consummation of the transactions contemplated hereby shall have
become Final Orders (a "Final Order" means a final
11
order after all opportunities for rehearing are exhausted
(whether or not any appeal thereof is pending)) and shall not be
subject to terms and conditions; and-
(c) All approvals and consents specified on
Schedules 3.4 and 4.4 hereto, together with any necessary
approvals or consents identified by the parties hereto following
the date of this Agreement as being required in order for C&W to
sell, and for Buyer to acquire, the CIBBV Shares, and for Buyer
to issue to C&W, and for C&W to acquire, the Buyer Shares shall
have been obtained.
6.2. Conditions to Obligations of Buyer. The
obligation of Buyer to effect the transactions contemplated by
this Agreement shall be subject to the fulfillment at or prior to
the Closing Date of the following additional conditions:
(a) C&W shall have performed and complied with in
all material respects the covenants and agreements contained in
this Agreement required to be performed and complied with by it
at or prior to the Closing Date, and the representations and
warranties of C&W set forth in this Agreement, giving effect to
the amendment or supplement of any schedule pursuant to Section
5.6 hereof, shall be true and correct in all material respects as
of the date of this Agreement and as of the Closing Date as
though made at and as of the Closing Date;
(b) the transactions contemplated hereby shall
have been approved by all necessary corporate actions by CIBBV;
(c) the conditions to the closing of the Share
Purchase Agreement (other than the issuance of the Buyer Shares
to C&W pursuant to this Agreement) shall have been met, and C&W
and News America shall be prepared to close the transactions
contemplated by the Share Purchase Agreement immediately after
the closing of the transactions contemplated hereby;
(d) Buyer shall have received duly certified
evidence, acceptable to Buyer, of one or more entries in the
share registry of CIBBV evidencing the transfer of title to the
CIBBV Shares to Buyer, together with any other documents that are
necessary to transfer to Buyer good and marketable title to the
CIBBV Shares; and
(e) Buyer shall have received a certificate from
an authorized officer of C&W, dated the Closing Date, to the
effect that to the officer's knowledge, the conditions set forth
in Section 6.2(a) and (b) have been satisfied.
6.3. Conditions to Obligations of C&W. The obligations
of C&W to effect the transaction contemplated by this Agreement
shall be subject to the fulfillment at or prior to the Closing
Date of the following additional conditions:
12
(a) one or more stock certificates representing
the Buyer Shares shall have been delivered to C&W or its nominee
or designee;
(b) Buyer shall have performed and complied with
in all material respects the covenants and agreements contained
in this Agreement required to be performed and complied with by
it at or prior to the Closing Date, and the representations and
warranties of Buyer set forth in this Agreement, giving effect to
the amendment or supplement of any schedule pursuant to Section
5.6 hereof, shall be true and correct in all material respects as
of the date of this Agreement and as of the Closing Date as
though made at and as of the Closing Date; and
(c) C&W shall have received a certificate from an
authorized officer of Buyer, dated the Closing Date, to the
effect that to the officer's knowledge, the conditions set forth
in Section 6.3(b) have been satisfied.
ARTICLE VII
TERMINATION AND ABANDONMENT
7.1. Termination.
(a) This Agreement may be terminated at any time
prior to the Closing Date, by mutual written consent of Buyer and
C&W.
(b) This Agreement may be terminated by Buyer, on
the one hand, or C&W, on the other hand, if the transactions
contemplated hereby shall not have been consummated on or before
June 30, 1998; provided, however, that the right to terminate
this Agreement pursuant to this Section 7.1(b) shall not be
available to any party whose failure to perform any of its
covenants or obligations under this Agreement has been the cause
of or resulting in the failure of the transactions contemplated
by this Agreement to occur on or prior to the aforesaid date.
(c) This Agreement may be terminated by either
Buyer, on the one hand, or C&W, on the other hand, if (i) any
governmental or regulatory body, the consent of which is a
condition to the obligations of C&W and Buyer to consummate the
transactions contemplated hereby, shall have determined not to
grant its consent and all appeals of such determination shall
have been taken and have been unsuccessful, or (ii) any court of
competent jurisdiction shall have issued an order, judgment or
decree permanently restraining, enjoining or otherwise
prohibiting the transactions contemplated hereby and such order,
judgment or decree shall have become final and nonappealable.
13
(d) This Agreement may be terminated by Buyer, on
the one hand, or C&W, on the other hand, if there has been a
material violation or breach of any agreement, representation or
warranty contained in this Agreement which violation or breach
has not been waived by the non-breaching party or otherwise
rectified. Without limiting the generality of the foregoing, the
failure by Buyer to file the HSR filing to be made by Buyer, as
set forth in Section 5.8 and within the time period set forth in
Section 5.8, shall constitute a material breach of this Agreement
by Buyer.
7.2. Procedure and Effect of Termination. In the event
of termination of this Agreement and abandonment of the
transactions contemplated hereby by either or both of the parties
pursuant to Section 7.1, written notice thereof shall forthwith
be given by the terminating party to the other party and this
Agreement shall terminate and the transactions contemplated
hereby shall be abandoned, without further action by any of the
parties hereto, without prejudice to any claims of a party to
this Agreement arising prior to the date of such termination out
of any breach of any agreement, representation or warranty
contained in this Agreement and Article VIII shall continue in
respect of such claims. In addition, the obligations of the
parties hereto under Section 5.4 and Article IX shall survive
termination of this Agreement. If this Agreement is terminated as
provided herein all filings, applications and other submissions
made pursuant to this Agreement, to the extent practicable, shall
be withdrawn from the agency or other person to which they were
made.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
8.1. Survival of Representations. All representations
and warranties of the parties, being those in Articles III and
IV, including the schedules thereto, shall survive the Closing
until one (1) year after the Closing.
8.2. C&W's Indemnification of Buyer. Subject to the
conditions of this Article VIII, C&W hereby agrees that it shall
indemnify, defend and hold harmless Buyer and any parent,
subsidiary and affiliate of Buyer (collectively, the "Buyer
Group") from and against all demands, claims, actions or causes
of action, assessments, losses, damages, liabilities, costs and
expenses, including, without limitation, interest, penalties and
reasonable attorneys' fees and expenses (collectively,
"Damages"), asserted against, resulting to, imposed upon or
incurred by any of the Buyer Group, directly or indirectly,
arising out of or resulting from a breach of any representation,
warranty or agreement of C&W contained in or made pursuant to
this Agreement or any facts or circumstances constituting such a
breach (collectively, "Buyer's Indemnifiable
14
Claims"); provided, however, that the indemnification obligation
of C&W with respect to any breach of any of the representations
or warranties made by C&W in this Agreement shall arise only in
the event that C&W had knowledge of such breach on or before the
Closing. For purposes of this Agreement, "knowledge" of C&W shall
mean the knowledge of Xxxxx Xxxxxxxx, Xxxxxx Xxxx and Xxxx
Xxxxxxxxxx (collectively, the "Designated Persons"). C&W
represents and warrants that the Designated Persons are the only
current management personnel of C&W or CIBBV who have substantial
executive, management or financial responsibilities for CIBBV who
would be reasonably likely to be aware of facts or circumstances
that could cause a representation or warranty made by C&W in this
Agreement to be false in any material respect.
8.3. Buyer's Indemnification of C&W. Subject to the
conditions of this Article VIII, Buyer hereby agrees that it
shall indemnify, defend and hold harmless C&W and any parent,
subsidiary and affiliate of C&W (collectively, the "C&W Group")
from and against all Damages asserted against, resulting to,
imposed upon or incurred by any of the C&W Group, directly or
indirectly, arising out of or resulting from a breach of any
representation, warranty or agreement of Buyer contained in or
made pursuant to this Agreement or any facts or circumstances
constituting such a breach ("C&W Indemnifiable Claims"; C&W's
Indemnifiable Claims and Buyer's Indemnifiable Claims are
collectively referred to herein as the "Indemnifiable Claims");
provided, however, that the indemnification obligation of Buyer
with respect to any breach of any of the representations or
warranties made by Buyer in this Agreement shall arise only in
the event that Buyer had knowledge of such breach on or before
the Closing. For purposes of this Agreement "knowledge" of Buyer
shall mean actual knowledge on the part of any member of
management of Buyer or actual knowledge of such circumstances
that would lead a person not negligent to investigate and, more
likely than not, obtain actual knowledge.
8.4. Conditions of Indemnification. The obligations
and liabilities of C&W under Section 8.2 or Buyer under Section
8.3, respectively, with respect to Indemnifiable Claims resulting
from the assertion of liability by third parties shall be subject
to the following terms and conditions:
(a) The member of the C&W Group or the Buyer
Group, as the case may be, asserting the existence of an
Indemnifiable Claim (the "Indemnified Party") will give notice of
any such Indemnifiable Claim to the party from whom
Indemnification is sought (the "Indemnifying Party"), and the
Indemnifying Party shall undertake the defense thereof by
representation of their choosing, and will consult with the
Indemnified Party concerning such defense during the course
thereof.
15
(b) In the event that the Indemnifying Party
within a reasonable time after notice of any Indemnifiable Claim,
fails to defend, the Indemnified Party against which such
Indemnifiable Claim has been asserted will (upon further notice
to the Indemnifying Party) have the right to undertake the
defense, compromise or settlement of such Indemnifiable Claim on
behalf of and for the account and risk of the Indemnifying Party.
(c) Anything in this Section 8.4 to the contrary
notwithstanding, (i) if there is a reasonable probability that an
Indemnifiable Claim may materially and adversely affect the
Indemnified Party other than as a result of money damages or
other money payments (for example, as a result of injunctive or
other equitable relief), the Indemnified Party shall have the
right to defend, compromise or settle such Indemnifiable Claim,
provided that the Indemnifying Party will not be bound by any
determination concerning any Indemnifiable Claim so defended or
any compromise or settlement effected without the consent of the
Indemnifying Party, such consent not to be unreasonably withheld,
and (ii) the Indemnifying Party not shall not, without the
Indemnified Party's written consent, settle or compromise any
Indemnifiable Claim or consent to entry of any judgment in
respect thereof, unless (A) the Indemnifying Party delivers to
the Indemnified Party in advance its written agreement
satisfactory to the Indemnified Party which provides that amounts
paid and incurred or to be incurred by the Indemnified Party in
connection with such Indemnifiable Claim shall be repaid promptly
by the Indemnifying Party to the Indemnified Party (subject to
the limitations of this Article VIII), and (B) such settlement,
compromise or consent includes as an unconditional term thereof
the giving by the claimant or the plaintiff to the Indemnified
Party, as the case may be, a release from all liability in
respect to such Indemnifiable Claim.
8.5. Cushion. The provisions for indemnity contained
in Section 8.2 and Section 8.3 hereof shall only be effective
with respect to an Indemnifiable Claim (or, if more than one
Indemnifiable Claim is asserted, with respect to all
Indemnifiable Claims) to the extent the amount (or aggregate
amount, in the case of more than one Indemnifiable Claim) of
damages sustained in connection therewith exceeds Three Hundred
Thousand dollars (USD$300,000), but to the extent that the amount
or amounts of damages in respect of Indemnifiable Claims exceeds
$300,000, the indemnity provisions hereunder shall apply to all
such damages, without regard to the $300,000 limit; provided,
however, that no cushion shall apply under this Agreement to the
indemnification by Buyer of C&W pursuant to Section 5.10 hereof.
8.6. Limitation of Liability. Anything in this
Agreement to the contrary notwithstanding, the liability of
either party in respect of any breach of any
16
representation, warranty or agreement under this Agreement shall
be limited to claims as to which written notice shall have been
given to the Indemnifying Party on or prior to the first
anniversary date of the Closing Date, whether or not the
Indemnified Party has actually settled or incurred any expense
with respect to such Damages. Furthermore, anything in this
Agreement to the contrary notwithstanding, (a) the liability of
C&W pursuant to this Agreement shall be limited to the aggregate
market value on the Closing Date of the Buyer Shares received by
C&W (calculated based on the last sale price of the Common Stock
of Buyer on The Nasdaq Stock Market on the Closing Date (the
"Market Value")), as reduced by any amounts actually paid or
required to be paid by C&W in respect of all liabilities of C&W
arising out of the transactions contemplated under the Share
Purchase Agreement,whether under Article VIII of such Agreement
or otherwise, and (b) the liability of Buyer pursuant to this
Agreement shall be limited to twenty-five percent (25%) of the
Market Value of the Buyer Shares; provided, however, that, such
cap on the liability of Buyer shall not apply to the
indemnification by Buyer of C&W pursuant to Section 5.10 hereof.
8.7. Remedies Cumulative. The remedies provided herein
shall be cumulative and shall not preclude the assertion by Buyer
of any other rights or the seeking of any other remedies against
the other party, as the case may be; provided, however, all
claims under this Agreement shall be governed by this Article
VIII and provided further that the cushion provided in Section
8.6 hereof and the limitation of liability provided in Section
8.7 hereof shall also apply to all liabilities arising out of the
transactions contemplated hereby but grounded in a legal or
equitable theory other than a breach of representation, warranty
or agreement set forth in this Agreement.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1. Amendment and Modification. Subject to applicable
law, this Agreement may be amended, modified or supplemented only
by written agreement signed by all of the parties hereto.
9.2. Waiver of Compliance; Consents. Except as
otherwise provided in this Agreement, any failure of any of the
parties to comply with any obligation, covenant, agreement or
condition herein may be waived by the party entitled to the
benefits thereof only by a written instrument signed by the party
granting such waiver, but such waiver shall not operate as a
waiver of, or estoppel with respect to, any subsequent or other
failure.
17
9.3. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed effectively
given upon personal delivery to the party to be notified, on the
next Business Day after delivery to an internationally recognized
overnight courier service, upon confirmation of a facsimile
transmission, or five days after deposit with the United States
Post Office or the Royal Mail, by registered or certified mail
(return receipt requested), postage prepaid, to the parties at
the following addresses (or at such other address for a party as
shall be specified by like notice; provided that notices of a
change of address shall be effective only upon receipt thereof):
If to C&W, to:
Cable and Wireless plc
000 Xxxxxxxxx Xxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Facsimile: (00) 000 000 0000
Attention: Company Secretary
(with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxxxx 0, Xxxx Xxxxx Xxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Facsimile: (00) 000-000-0000
Attention: Xxxxxx X. Xxxxxx)
If to Buyer, to:
PLD Telekom Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxx
In the case of notices given to C&W or Buyer, a copy
thereof shall simultaneously be given to News America at:
18
News America Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
(with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.)
9.4. Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and
permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by
any party hereto, including by operation of law without the prior
written consent of the other party, nor is this Agreement
intended to confer upon any other person except the parties
hereto any rights or remedies hereunder.
9.5. Confidentiality. Each of the Parties hereto will
hold, and will use its reasonable, good faith efforts to cause
its respective shareholders, partners, members, directors,
officers, employees, accountants, counsel, consultants, agents
and financial or other advisors (collectively "Agents") to hold,
in confidence all information (whether oral or written),
including this Agreement and the documents contemplated herein,
concerning the transactions contemplated by this Agreement
furnished to such Party by or on behalf of any other Party in
connection with such transactions, unless legally compelled (by
deposition, interrogatory, request for documents, subpoena, civil
investigative demand or similar process, or by order of a court
or tribunal of competent jurisdiction), or in order to comply
with applicable rules or requirements of any stock exchange,
government department or agency or other regulatory authority, or
by requirements of any securities law or regulation or other
legal requirement to disclose any such information or documents,
and except to the extent that such information or documents can
be shown to have been (a) previously known on a nonconfidential
basis by such Party, (b) in the public domain through no fault of
such Party or (c) acquired by such Party on a nonconfidential
basis from sources not known by such Party to be bound by any
obligation of confidentiality in relation thereto.
Notwithstanding the foregoing
19
provisions of this Section 9.5, each Party may disclose such
information to its Agents in connection with the transactions
contemplated by this Agreement so long as such Agents are
informed by such Party of the confidential nature of such
information and are required by such Party to treat such
information confidentially, and to certain governmental agencies
in connection with the procurement of the governmental
authorizations contemplated by this Agreement. The obligation of
each Party to hold any such information in confidence shall be
satisfied if such Party exercises the same care with respect to
such information as it would take to preserve the confidentiality
of its own similar information. If this Agreement is terminated,
each Party will, and will use its reasonable, good faith efforts
to cause its respective Agents to, destroy or deliver to the
other Party, upon request, all documents and other materials, and
all copies thereof, obtained by such Party or on its behalf from
the other Party hereto in connection with this Agreement that are
subject to such confidence.
9.6. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New
York (regardless of the laws that might otherwise govern under
applicable New York principles of conflicts of law) as to all
matters, including but not limited to matters of validity,
construction, effect, performance and remedies.
9.7. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
9.8. Interpretation. The article and section headings
contained in this Agreement are solely for the purpose of
reference, are not part of the agreement of the parties and shall
not in any way affect the meaning or interpretation of this
Agreement. As used in this Agreement, (a) the term "person" shall
mean and include an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization and a
governmental entity or any department or agency thereof, (b) the
term "subsidiary" when used in reference to any other person
shall mean any corporation of which outstanding securities having
ordinary voting power to elect a majority of the Board of
Directors of such corporation are owned directly or indirectly by
such other person, (c) the terms "affiliate" and "parent" shall
have the meanings set forth in Rule 12b-2 of the Exchange Act and
(d) the term "Business Day" shall mean any day other than a
Saturday, Sunday or other day on which banks in the State of New
York are authorized or required to be closed..
9.9. Entire Agreement. Subject to the proviso in the
final sentence of this Section, this Agreement, including the
documents, schedules and certificates referred to herein, embody
the entire agreement and understanding of the parties hereto
20
in respect of the transactions contemplated by this Agreement.
There are no restrictions, promises, representations, warranties,
covenants or undertakings, other than those expressly set forth
or referred to herein or therein. This Agreement supersedes all
prior agreements and understandings between the parties with
respect to such transactions; provided, that, notwithstanding the
foregoing, the Confidentiality and Non-Disclosure Agreement,
dated September 6, 1996, between the parties hereto shall
survive, in full force and effect, the execution and delivery of
this Agreement.
21
IN WITNESS WHEREOF, C&W and Buyer have caused this
agreement to be signed by their respective duly authorized
officers as of the date first above written.
PLD TELEKOM INC.
By: /s/ Xxxxx X.X. Xxxx
--------------------------------
Name: Xxxxx X.X. Xxxx
Title:
CABLE AND WIRELESS PLC
By: /s/ X.X. Xxxxxxxx
--------------------------------
Name: X.X. Xxxxxxxx
Title: Director, Global Business
22
CABLE AND WIRELESS PLC
SCHEDULES TO
STOCK PURCHASE AGREEMENT, DATED APRIL 19, 1998
BETWEEN PLD TELEKOM INC. AND CABLE AND WIRELESS PLC
Schedule 3.4 Consents and Approvals; No Violation
Approval of the shareholders of CIBBV of the transfer of
the CIBBV Shares
Cable and Wireless will need to file an amendment to its
Schedule 13D filing with the United States Securities and
Exchange Commission on signature of this Agreement,
together will all necessary documents.
Schedule 3.5 Undisclosed Liabilities
CIBBV is contemplating issuing a letter of guarantee (and
which may be issued prior to the closing of the
transactions contemplated by this Agreement), substantially
in the form previously disclosed to PLD Telekom Inc., in
favor of Belcel in respect of the delivery of certain
equipment to Belcel. The liability of CIBBV under such
guarantee will be stated to be subject to a cap of no more
than 13 billion Belarus roubles.
Schedule 5.1 Conduct of the Business
As set out in Schedule 3.5 above.
23
PLD TELEKOM INC.
SCHEDULES TO
STOCK PURCHASE AGREEMENT, DATED APRIL 19, 1998
BETWEEN PLD TELEKOM INC. AND CABLE AND WIRELESS PLC
Schedule 4.4 Consents and Approvals
Filing under Xxxx-Xxxxx-Xxxxxx Anti-Trust Improvement Act
of 1976 with respect to the transactions contemplated by
the Share Purchase Agreement between Cable and Wireless plc
and News America Incorporated.
Filing with The Nasdaq Stock Market of a Notification Form
for Listing of Additional Shares with respect to the Buyer
Shares
Approval by shareholders of PLD Telekom Inc., if required
by Nasdaq
If shareholder approval is required, the filing of
preliminary and definitive proxy statements with the
Securities and Exchange Commission
If required, approval from the holders of PLD's (i)
$123,000,000 14% senior discount notes due 2004, (ii)
$26,000,000 9% convertible subordinated notes due 2006 and
(iii) $12,400,000 12% Series A Revolving Credit Notes due
1998 and $3,100,000 12% Series B Revolving Credit Notes due
1998
24
