Exhibit 3
ASSET EXCHANGE AGREEMENT
between
NEWS AMERICA INCORPORATED
and
PLD TELEKOM INC.
Dated April 19, 1998
TABLE OF CONTENTS
Page
ARTICLE I
EXCHANGE OF STOCK
1.1. Exchange of Holdings Shares . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
THE CLOSING
2.1. Time and Place of Closing . . . . . . . . . . . . . . . . . . . . 3
2.2. Deliveries by News America. . . . . . . . . . . . . . . . . . . . 3
2.3. Deliveries by PLD . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PLD
3.1. Organization; Qualification . . . . . . . . . . . . . . . . . . . 4
3.2. Capitalization of PLD and PeterStar . . . . . . . . . . . . . . . 5
3.3. Authority Relative to this Agreement . . . . . . . . . . . . . . 5
3.4. Consents and Approvals; No Violation . . . . . . . . . . . . . . 6
3.5. Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.6. Financial Statements . . . . . . . . . . . . . . . . . . . . . . 7
3.7. Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . 7
3.8. Absence of Certain Changes or Events . . . . . . . . . . . . . . 7
3.9. Certain Disclosure Matters. . . . . . . . . . . . . . . . . . . . 9
3.10. Legal Proceedings, etc. . . . . . . . . . . . . . . . . . . . . . 9
3.11. Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF NEWS AMERICA
4.1. Organization. . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.2. Authority Relative to this Agreement. . . . . . . . . . . . . . 10
4.3. Consents and Approvals; No Violation . . . . . . . . . . . . . . . 11
4.4. Fees and Commissions. . . . . . . . . . . . . . . . . . . . . . . 11
4.5. Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.6. Investment Intent; Private Placement. . . . . . . . . . . . . . . 12
ARTICLE V
COVENANTS OF THE PARTIES
5.1. Conduct of Business of PLD and PeterStar. . . . . . . . . . . . . 12
5.2. Access to Information . . . . . . . . . . . . . . . . . . . . . . 13
5.3. Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.4. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . 14
5.5. Public Statements . . . . . . . . . . . . . . . . . . . . . . . . 15
5.6. Consents and Approvals. . . . . . . . . . . . . . . . . . . . . . 15
5.7. Supplements to Schedules. . . . . . . . . . . . . . . . . . . . . 16
5.8. Completion of Ancillary Agreements. . . . . . . . . . . . . . . . 16
ARTICLE VI
CLOSING CONDITIONS
6.1. Conditions to Each Party's Obligations to Effect the
Transactions Contemplated Hereby . . . . . . . . . . . . . . . 16
6.2. Conditions to Obligations of News America. . . . . . . . . . . . 17
6.3. Conditions to Obligations of PLD . . . . . . . . . . . . . . . . 19
ARTICLE VII
REGISTRATION RIGHTS
7.1. Registration on Request. . . . . . . . . . . . . . . . . . . . . 20
7.2. Incidental Registration . . . . . . . . . . . . . . . . . . . . . 22
7.3. Registration Procedures . . . . . . . . . . . . . . . . . . . . . 24
7.4. Provision of Information; Transfer of Shares After
Registration . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.5. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.6. Transfer of Registration Rights . . . . . . . . . . . . . . . . . 30
ARTICLE VIII
TERMINATION AND ABANDONMENT
8.1. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
8.2. Procedure and Effect of Termination . . . . . . . . . . . . . . . 31
ARTICLE IX
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
9.1. Survival of Representations. . . . . . . . . . . . . . . . . . . 31
9.2. Statements as Representations. . . . . . . . . . . . . . . . . . 31
9.3. PLD's Indemnification of News America. . . . . . . . . . . . . . 31
9.4. News America's Indemnification of PLD. . . . . . . . . . . . . . 32
9.5. Conditions of Indemnification. . . . . . . . . . . . . . . . . . 32
9.6. Cushion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.7. Limitation of Liability. . . . . . . . . . . . . . . . . . . . . 33
9.8. Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . 34
9.9. Assignment of Certain Representations, Warranties and
Indemnification Obligations . . . . . . . . . . . . . . . . . . 34
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Amendment and Modification. . . . . . . . . . . . . . . . . . . 35
10.2. Waiver of Compliance; Consents . . . . . . . . . . . . . . . . . 35
10.3. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
10.4. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
10.5. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . 36
10.6. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 37
10.7. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 37
10.8. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . 37
10.9. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . 38
ASSET EXCHANGE AGREEMENT
ASSET EXCHANGE AGREEMENT (this "Agreement"), dated April 19,
1998, by and between:
NEWS AMERICA INCORPORATED, a corporation organized under the laws
of the State of Delaware ("News America"), with an address at 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and
PLD TELEKOM INC., a corporation organized under the laws of
Delaware ("PLD"), with an address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
W I T N E S S E T H:
WHEREAS, PLD is a provider of local, long distance and
international telecommunications services in the Russian Federation and
Kazakstan; and
WHEREAS, News America and Cable and Wireless Plc, a company
registered under the laws of England under the number 238525 ("C&W"), are
substantially simultaneously with the execution and delivery of this
Agreement entering into that certain Stock Purchase Agreement (the "Stock
Purchase Agreement"), pursuant to which News America will purchase from (a)
Navona Communications Corporation Ltd. (a wholly owned subsidiary of C&W),
a corporation organized under the laws of Bermuda ("Navona"), (i)
10,555,739 shares of common stock, par value $.01 per share ("PLD Common
Stock"), of PLD, constituting as at April 16, 1998 approximately 31.21% of
the presently issued and outstanding capital stock of PLD (the "PLD
Shares"), and (ii) 12,000 shares of common stock, par value USD$1.00 per
share, of PLD Holdings Ltd., a limited liability company organized under
the laws of Bermuda ("Holdings"), constituting 100% of the issued and
outstanding capital stock of Holdings (the "Holdings Shares"), which is the
owner of eleven percent (11%) of the outstanding common equity interests in
PeterStar Company Limited, a closed joint stock company organized under the
laws of the Russian Federation ("PeterStar") and (b) C&W, a warrant dated
June 28, 1995, conferring on C&W the right to purchase up to 250,000 shares
(subject to adjustment on the occurrence of certain events) of PLD Common
Stock at an exercise price of 11.3125 Canadian dollars per share, expiring
on June 22, 1999 a copy of which is attached hereto as Exhibit A (the "PLD
Warrant"; the PLD Warrant and the PLD Shares are collectively referred to
herein as the "PLD Interest") and
WHEREAS, PLD deems it to be advisable and in the best interests
of PLD and its shareholders to facilitate the acquisition of the PLD
Interest and the Holdings Shares by News America; and
WHEREAS, News America has advised PLD and C&W that it does not
wish to hold the Holdings Shares and that it is not willing to consummate
the acquisition of the PLD Interest and the Holdings Shares unless it can
substantially simultaneously therewith exchange the Holdings Shares with
PLD for additional shares of PLD Common Stock; and
WHEREAS, PLD deems it advisable and in the best interests of PLD
and its shareholders to acquire the Holdings Shares in exchange for shares
of PLD Common Stock; and
WHEREAS, PLD presently owns sixty percent (60%) of the equity
interest in PeterStar; and
WHEREAS, immediately prior to the consummation of the transaction
contemplated hereby, PLD shall have acquired, pursuant to a Share Purchase
Agreement between PLD and C&W (the "CIBBV Purchase Agreement"), 100 shares
of common stock, par value 000 Xxxxxxxxxxx Guilders per share, of
CommStruct International Byelorussia BV, a closed limited liability company
organized under the laws of The Netherlands ("CIBBV"), constituting 100% of
the issued and outstanding capital stock (the "CIBBV Shares") of CIBBV,
which is the owner of fifty percent (50%) of the outstanding common equity
interests in Belarus-Netherlands Belcel Joint Venture ("Belcel") and one
hundred percent (100%) of the outstanding common equity interests in Baltic
Operations Ltd. - Latvia, from C&W in exchange for 200,000 shares of PLD
Common Stock plus 300,000 shares of PLD Common Stock in consideration for
the assignment of certain liabilities of CIBBV to PLD or its designee; and
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
EXCHANGE OF STOCK
1.1. Exchange of Holdings Shares.
(a) On the Closing Date and substantially simultaneously
with, and subject to, the purchase of the Holdings Shares by News America
as described in the Stock Purchase Agreement, News America agrees to sell,
assign, transfer and deliver to PLD, and PLD agrees to purchase and acquire
from News America, all of News America's right, title and interest to the
Holdings Shares.
(b) On the Closing Date and against delivery of the
Holdings Shares as set forth above, PLD will issue and deliver to News
America 3,705,631 newly-issued, fully paid and nonassessable shares of PLD
Common Stock (the "New PLD Shares"), registered in the name of News America
or its designee or nominee.
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 on the third business day after News America shall have
delivered to PLD 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. Deliveries by News America. At the Closing, News America
will deliver or cause to be delivered the following to PLD:
(a) Immediately upon (and subject to) the receipt thereof
from C&W, the stock certificates or other instruments representing all of
the Holdings Shares, duly endorsed in blank or accompanied by duly executed
instruments of transfer, together with any other documents that are
necessary to transfer to PLD all of News America's right, title and
interest in and to the Holdings Shares theretofore acquired from C&W or its
affiliates;
(b) the Officer's Certificate referred to in Section 6.3(d)
hereof;
(c) the Opinion of Counsel referred to in Section 6.3(e)
hereof; and
(d) such other documents, instruments and writings as are
required to be delivered by News America at or prior to the Closing Date
pursuant to this Agreement or otherwise required in connection herewith.
2.3. Deliveries by PLD. At the Closing, PLD will deliver the
following to News America:
(a) stock certificates, registered in the name of News
America or its nominee or designee, representing 3,705,631 shares of duly
issued, fully paid and nonassessable PLD Common Stock, and any other
documents that are necessary to transfer to News America good and
marketable title to such shares;
(b) the Officer's Certificate referred to in Section 6.2(f)
hereof;
(c) the Opinion of Counsel referred to in Section 6.2(g)
hereof; and
(d) such other documents, instruments and writings as are
required to be delivered by News America at or prior to the Closing Date
pursuant to this Agreement or otherwise required in connection herewith.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PLD
PLD represents and warrants to News America as follows (for
purposes of Sections 3.7, 3.8, 3.9, 3.10 and 3.11 hereof, the term PLD, as
of the Closing Date, shall mean PLD and its subsidiaries taken as a whole,
including without limitation, the assets, liabilities, business and
operations of Belcel acquired pursuant to the CIBBV Purchase Agreement):
3.1. Organization; Qualification. PLD is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware, and has all requisite corporate power and authority to
own, lease, and operate its properties and to carry on its business as now
being conducted. PLD is duly qualified or licensed to do business as a
foreign corporation and is in good standing in each jurisdiction in which
the property owned, leased or operated by it or the nature of the business
conducted by it makes such qualification necessary. Schedule 3.1 sets
forth, as of the date of this Agreement, each jurisdiction in which PLD is
qualified to do business as a foreign corporation. PLD has heretofore
delivered to News America complete and correct copies of its Certificate of
Incorporation and Bylaws as currently in effect.
3.2. Capitalization of PLD and PeterStar. Set forth on Schedule
3.2 is the number of shares in the capital stock or other equity interests
of each of PLD and PeterStar which are issued and outstanding as of the
date of this Agreement. All such shares are validly issued, fully paid and
nonassessable. Other than this Agreement, or as set forth in Schedule 3.2,
there is no subscription, option, warrant, call, right, agreement or
commitment relating to the issuance, sale, delivery or transfer by PLD and
PeterStar of any shares of capital stock or other equity interest
(including any right of conversion or exchange under any outstanding
security or other instrument). There are no outstanding contractual
obligations of PLD and PeterStar to repurchase, redeem or otherwise acquire
any outstanding shares of capital stock or other equity interest of PLD or
PeterStar. There are no restrictions or limitations contained in the
organizational documents of PLD or in any contract, agreement, document or
other instrument to which PLD or any direct or indirect subsidiary is a
party or of which PLD or any direct or indirect subsidiary is aware that
restricts, or purports to restrict, the ability of C&W or any of its direct
or indirect subsidiaries to transfer the PLD Interest to News America or
that create or give rise to, by reason of the transfer of the PLD Interest
to News America, any pledge, security interest, lien, charge, encumbrance,
claim, option or limitation affecting the ability of News America to vote
such shares or to exercise any other rights appurtenant thereto under the
Stock Purchase Agreement. The New PLD Shares, taken together with the PLD
Shares, will represent an aggregate of not less than thirty-eight (38%) of
the outstanding PLD shares after giving effect to the issuance of the New
PLD Shares. The PLD Warrant is exercisable for shares of PLD Common Stock
in accordance with its terms.
3.3. Authority Relative to this Agreement. PLD has full
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and all ancillary agreements to which it
is a party and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and all ancillary
agreements to which it is a party and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized, by
the Board of Directors and, if required, shall be duly and validly
authorized by the shareholders of PLD prior to the Closing Date, and no
other corporate proceedings on the part of PLD are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby and
thereby. This Agreement and each such ancillary agreement to which PLD is
a party has been duly and validly executed and delivered by PLD, and
assuming that this Agreement constitutes a valid and binding agreement of
News America, constitutes a valid and binding agreement of PLD, enforceable
against PLD 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.
3.4. Consents and Approvals; No Violation. Except as set forth
in Schedule 3.4, the execution and delivery by PLD of this Agreement and
all ancillary agreements to which it is a party will not (i) conflict with
or result in any breach of any provision of the Certificate of
Incorporation or Bylaws, or similar charter documents, of PLD, (ii) require
any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, (iii) result in
a default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, agreement or other instrument or
obligation to which PLD is a party or by which PLD or any of its 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, or (iv) violate any order, writ, injunction, decree, statute,
rule or regulation applicable to PLD or any of its assets.
(b) Except as set forth in Schedule 3.4 and except for the
filings by News America and PLD required by Title II of the Xxxx-Xxxxx-
Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"), 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 PLD of the transactions contemplated
hereby.
3.5. Reports. Since January 1, 1997, PLD has, pursuant to the
Securities Act of 1933, as amended (the "Securities Act") and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), filed or
caused to be filed with the United States Securities and Exchange
Commission ("SEC") all material forms, statements, reports and documents
(including all exhibits, amendments and supplements thereto) required to be
filed by them with respect to the business and operations of PLD under each
of the Securities Act and the Exchange Act and the respective rules and
regulations thereunder, all of which complied in all material respects with
all applicable requirements of the appropriate act and the rules and
regulations thereunder in effect on the date each such report was filed.
True and complete copies of each of such forms, statements, reports and
documents, and such exhibits, have been delivered to News America.
3.6. Financial Statements. PLD has previously furnished to News
America copies of (a) PLD's audited consolidated and (b) PeterStar's
audited (i) balance sheets as of December 31, in each of the years 1997,
1996 and 1995 and (ii) related consolidated statements of income and
retained earnings and consolidated changes in financial position of PLD and
PeterStar for the fiscal years then ended, together with the respective
reports thereon of KPMG Peat Marwick LLP and KPMG, as independent auditors
of PLD for 1997, and 1996 and 1995, respectively, and KPMG, as independent
auditors of PeterStar. Each of the balance sheets included in the
financial statements referred to in this Section 3.6 (including the related
notes thereto) present fairly the financial information purported to be set
therein as of the dates thereof, and the other related statements included
therein (including the related notes thereto) present fairly the results of
operations and changes in financial position for the periods then ended,
all in conformity with generally accepted accounting principles applied on
a consistent basis, except as otherwise noted therein. For purposes of
this Agreement, the audited consolidated balance sheet of PLD and the
audited balance sheet of PeterStar as of December 31, 1997 are hereinafter
referred to as (the "Companies' Balance Sheets").
3.7. Undisclosed Liabilities. Except as set forth in Schedule
3.7, neither PLD nor PeterStar has 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 Companies' Balance Sheets or disclosed in the notes thereto
in accordance with generally accepted accounting principles.
3.8. Absence of Certain Changes or Events. Except as set forth
in Schedule 3.8 or in PLD's Annual Report on Form 10-K for the year ended
December 31, 1997, since the date of the Companies' Balance Sheets there
has not been:
(a) any material adverse change in the business, prospects,
operations, properties, assets, liabilities, competition, earnings, or
condition (financial or otherwise) of PLD or PeterStar, or any failure by
PLD or PeterStar to pay its debts when due;
(b) any event or condition of any character which either
individually or in the aggregate, might reasonably be expected to have a
material adverse effect on the business, prospects, operations, properties,
assets, liabilities, competition, earnings or condition (financial or
otherwise), of PLD or PeterStar;
(c) any damage, destruction or loss (regardless of whether
covered by insurance) that might reasonably be expected to have a material
adverse effect on the business, prospects, operation, properties, assets,
liabilities, competition, earnings, or condition (financial or otherwise),
of PLD or PeterStar;
(d) any declaration, setting aside or payment of any
dividend or other distribution (whether in cash, stock, property, or any
combination of the foregoing) with respect to the capital stock or other
equity interest of PLD or PeterStar except as specifically provided for in
this Agreement;
(e) any increase in the compensation paid, payable or to
become payable by PLD or PeterStar to its officers, directors or employees
(other than increases for employees in the ordinary course of business and
consistent with past practice), any hiring of new officers, directors or
employees (other than hiring of new employees in the ordinary course of
business consistent with past practice) or any increase in any bonus,
insurance, pension or other employee benefit plan, payments or arrangement
(including loans) made to, for or with any officers, directors, or
employees (other than increases for employees in the ordinary course of
business and consistent with past practice or other increases pursuant to
written employee benefit plans);
(f) any entry into, material amendment of, or termination
of, any material agreement, material commitment or material transaction by
PLD or PeterStar, including, without limitation, any (i) merger,
consolidation, share exchange, acquisition or disposition of assets or
stock or any financing transaction or capital expenditure, (ii) indenture,
mortgage, note, agreement or other instrument relating to the borrowing of
money (other than intercompany accounts), (iii) partnership or joint
venture agreement, (iv) material license agreement relating to intellectual
property (other than off-the-shelf software licenses), or (v) agreement to
amend its charter or other organizational documents or any other document,
contract, agreement, arrangement, undertaking or instrument relating to any
of the foregoing;
(g) any entry into, material change to the terms or
conditions of termination of, any license, permit, franchise, governmental
approval or decree pursuant to which PLD or PeterStar provides telephony,
data transmission or other telecommunications services;
(h) any notes or accounts receivable or portions of notes
or accounts receivable written off by PLD or PeterStar as uncollectible,
other than in the ordinary course of business and consistent with past
practice;
(i) any material obligation or material liability paid
(whether absolute, accrued, contingent or otherwise), or any lien or
encumbrance in connection therewith discharged, by PLD or PeterStar, other
than (i) in the ordinary course of business and consistent with past
practice, or (ii) current liabilities shown on the financial statements and
current liabilities incurred since their date;
(j) any properties or assets, real, personal or mixed,
tangible or intangible, of PLD or PeterStar mortgaged, pledged or subjected
to any security interest, lien or encumbrance;
(k) except as specifically provided for in this Agreement,
any sale, assignment, transfer, lease, dividend, distribution or other
disposition of any of property or assets by PLD or PeterStar, other than
sales of products in the ordinary course of business; or
(l) any agreement, understanding or undertaking to do any
of the foregoing by PLD or PeterStar.
3.9. Certain Disclosure Matters.
News America has been furnished with copies of each of the
documents, contracts, agreements, licenses, permits and other instruments
identified on Schedule 3.9 hereof (collectively, the "Written Disclosure
Materials"). All of the Written Disclosure Materials are true and complete
copies of each of the documents, contracts, agreements, licenses, permits
and other instruments that they purport to represent, and the Written
Disclosure Materials, together with the schedules attached hereto,
collectively represent a true, fair and complete portrayal of the material
business operations of PLD and PeterStar. None of the Written Disclosure
Materials contains an untrue statement of material fact or omits to state
any fact required to be stated therein or necessary, in light of the
circumstances under which such statements are made, so as not to be
misleading, except to the extent that such statements were later amended,
revised or updated by PLD or PeterStar.
3.10. Legal Proceedings, etc. Except as set forth in Schedule
3.10, there are no claims, actions, or proceedings pending or investigation
pending or, to PLD's knowledge, threatened against or relating to PLD or
PeterStar before any court, governmental or regulatory authority or body
acting in an adjudicative capacity. Except as set forth in Schedule 3.10,
none of PLD or PeterStar is subject to any outstanding judgment, rule,
order, writ, injunction or decree of any court, governmental or regulatory
authority.
3.11. Permits. Each of PLD and PeterStar has all material
permits, licenses, franchises and other governmental authorizations,
consents and approvals (collectively, "Permits") necessary to conduct its
business as presently conducted. Except as set forth in Schedule 3.11,
neither PLD nor PeterStar has received any written notification that it is
in violation of any of such Permits, or any law, statute, order, rule,
regulation, ordinance or judgment of any governmental or regulatory body or
authority applicable to it. Each of PLD and PeterStar is in compliance
with all material Permits, laws, statutes, orders, rules, regulations,
ordinances, or judgments of any governmental or regulatory body or
authority applicable to it.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF NEWS AMERICA
News America represents and warrants to PLD as follows:
4.1. Organization. News America is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware. News America has heretofore delivered to PLD complete
and correct copies of its organizational documents as currently in effect.
4.2. Authority Relative to this Agreement. News America has
full power and authority to execute, deliver and perform all obligations
under this Agreement and all ancillary agreements to which it is a party
and to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and all ancillary agreements to
which it is a party and the consummation of the transactions contemplated
hereby and thereby have been duly and validly authorized by News America
and no other proceedings on the part of News America are necessary to
authorize this Agreement or to consummate the transactions contemplated
hereby. This Agreement and all ancillary agreements to which it is a party
have been duly and validly executed and delivered by News America, and
assuming that this Agreement and each such ancillary agreement constitutes
a valid and binding agreement of PLD, constitutes a valid and binding
agreement of News America, enforceable against News America 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. Consents and Approvals; No Violation. (a) Except as set
forth in Schedule 4.3, neither the execution and delivery of this Agreement
by News America nor the exchange by News America of the Holdings Shares
pursuant to this Agreement will (i) conflict with or result in any breach
of any provision of the organizational documents of News America, (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, 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 News America 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) Except for the filings by News America and PLD
required by Title II of the HSR Act, 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 News America of the transactions contemplated hereby.
4.4. 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
News America. News America hereby covenants that it will pay to PLD or
otherwise discharge, and will indemnify and hold PLD 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 News America.
4.5. Title. News America makes no representations or warranties
regarding the title to the Holdings Shares (including the interest in
PeterStar) that are the subject of this Agreement or the business or
operation of PeterStar or any other matter relating to the Holdings Shares
or their provenance; provided, however, that News America shall represent
in writing to PLD on the Closing Date that News America shall have taken no
action with respect to the Holdings Shares that would interfere with the
transfer to PLD, and the receipt by PLD, of title to the Holdings Shares
which is of the same quality as the title thereto which News America
received from C&W. News America hereby assigns to PLD each of the
representations and warranties made by C&W to News America in the Stock
Purchase Agreement.
4.6. Investment Intent; Private Placement.
(a) News America is knowledgeable, sophisticated and
experienced in making, and is qualified to make, decisions with respect to
investments in equity securities presenting an investment decision like
that involved in the acquisition of the New PLD Shares. News America or
its counsel, accountants or other investment advisers have requested,
received, reviewed and considered all information deemed relevant by them
in making an informed decisions to acquire the New PLD Shares.
(b) News America is acquiring the New PLD Shares for
investment for its own account only and not with a view to, or for resale
in connection with, any "distribution" thereof within the meaning of the
Securities Act. News America has no present intention of selling, granting
any participation in, or otherwise distributing the New PLD Shares, except
in compliance with the Securities Act or pursuant to an available exemption
thereunder.
(c) News America understands that the New PLD Shares have
not been registered under the Securities Act or registered or qualified
under any state securities law in reliance on specific exemptions
therefrom, which exemptions may depend upon, among other things, the bona
fide nature of News America's investment intent as expressed herein. News
America is familiar with Rule 144 under the Securities Act, as presently in
effect, and understands the resale limitations imposed thereby and by the
Securities Act. News America further understands that the certificate(s)
representing the New PLD Shares shall bear the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY
APPLICABLE STATE SECURITIES LAWS. THE SHARES MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM.
ARTICLE V
COVENANTS OF THE PARTIES
5.1. Conduct of Business of PLD and PeterStar. Except as
described in Schedule 5.1, during the period from the date of this
Agreement to the Closing Date, PLD will, and will cause PeterStar to,
conduct their respective businesses and operations according to their
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 News America, PLD
will not, and will not permit PeterStar to:
(a) (i) create, incur or assume any amount of indebtedness
for money borrowed, other than in the ordinary course of business, 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; provided, PLD and
PeterStar may endorse negotiable instruments in the ordinary course of
business;
(b) declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any combination
thereof) in respect of their respective capital stock, or redeem or
otherwise acquire any shares of their respective 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 or as contemplated herein provided, that PLD may
nevertheless effect the public offering of shares of PLD Common Stock as
contemplated by the terms of (i) that certain Indenture, dated May 31,
1996, among the parties signatories thereto, relating to the $123,000,000
14% senior discount notes due 2004, (ii) that certain Indenture, dated May
31, 1996, among the parties signatories thereto, relating to the
$26,000,000 9% convertible subordinated notes due 2006 (each such Indenture
are collectively referred to herein as the "Indentures") and (iii) the
Revolving Credit Note and Warrant Agreement relating to PLD's $12,400,000
12% Series A Revolving Credit Notes due 1998 and $3,100,000 12% Series B
Revolving Credit Notes due 1998; 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. Access to Information. Between the date of this Agreement
and the Closing Date, PLD will, and will cause PeterStar, during ordinary
business hours and upon reasonable notice to, (i) give News America and its
accountants, counsel, financial advisors and other authorized
representatives (the "News America Representatives") reasonable access to
all books, records, plants, offices and other facilities and properties of
PLD and PeterStar to which News America is permitted access by law, (ii)
permit News America to make such reasonable inspections thereof as News
America may reasonably request; (iii) cause the officers and advisors of
PLD and PeterStar to furnish News America with such financial and operating
data and other information with respect to the business and properties of
PLD and PeterStar as News America may from time to time reasonably request;
(iv) cause the officers and advisors of PLD and PeterStar to furnish News
America a copy of each report, schedule or other document filed by them
with any governmental agency or authority, provided, however, that (A) any
such investigation shall be conducted in such a manner as not to interfere
unreasonably with the operation of the business of PLD and PeterStar or
PLD's relationship with the other shareholders of PeterStar, (B) PLD and
PeterStar shall not be required to take any action which would constitute a
waiver of the attorney-client privilege and (C) PLD and PeterStar need not
supply News America with any information which PLD or PeterStar is under a
legal obligation not to supply.
All information furnished to or obtained by News America and any
News America Representatives pursuant to this Section 5.2 shall be subject
to the confidentiality provisions set forth in Section 10.5 hereof.
5.3. 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.
5.4. 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 necessary, proper or advisable under applicable laws
and regulations to consummate and make effective the sale, assignment,
transfer and delivery of the PLD Interest, and the Holdings Shares and the
interest in PeterStar represented thereby, pursuant to this Agreement.
From time to time after the date hereof, without further consideration,
News America will, at its own expense, execute and deliver such documents
to PLD as PLD may reasonably request in order more effectively to vest in
PLD good title to the Holdings Shares. From time to time after the date
hereof, without further consideration, PLD will, at its own expense,
execute and deliver such documents to News America or its designee (which
may include C&W) as News America or such designee may reasonably request in
order more effectively to consummate the sale, assignment, transfer and
delivery of (a) the New PLD Shares pursuant to this Agreement and (b) the
PLD Interest and the Holdings Shares pursuant to the Stock Purchase
Agreement.
5.5. 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. Notwithstanding the foregoing, the
parties may make public announcements, statements or other disclosures with
respect to this Agreement and the transactions contemplated hereby without
such consultation to the extent and under the circumstances in which the
parties are 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) to do so, or in
order to comply with applicable rules or requirements of any stock
exchange, government department or agency or other regulatory authority, or
as required by any securities law or regulation or other legal requirement,
in any such case in circumstances where such consultation would not be
practicable.
5.6. Consents and Approvals.
(a) PLD and News America shall cooperate with each other
and (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 each of the foregoing clauses (i), (ii) and (iii),
necessary or advisable to consummate the transactions contemplated by this
Agreement or required by the terms of any note, bond, mortgage, indenture,
deed of trust, license, franchise, permit, concession, contract, lease or
other instrument to which PLD, Holdings, PeterStar or News America or any
of their subsidiaries are a party or by which any of them is bound. PLD
shall have the right to review and approve in advance all characteristics
of the information relating to PLD or PeterStar; and each of PLD and News
America shall have the right to review and approve in advance 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. Each of PLD and News America
shall designate separate counsel with respect to all applications, notices,
petitions and filings (joint or otherwise) relating to this Agreement and
the transactions contemplated hereby on behalf of PLD, on the one hand and
News America on the other hand, with all 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.
5.7. Supplements to Schedules. PLD, on the one hand, and News
America, 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 Article IX, 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. Completion of Ancillary Agreements. Each party will use
reasonable efforts to take or cause to be taken, all action, and do or
cause to be done all things reasonably necessary or advisable to perform
their respective obligations under, in the case of PLD, the CIBBV Exchange
Agreement and, in the case of News America, the Stock Purchase Agreement,
each in the form as executed on the date hereof.
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) The waiting period under the HSR Act applicable to the
consummation of the transactions contemplated hereby shall have expired or
been terminated;
(b) 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;
(c) 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 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
(d) If so required, a resolution shall have passed at the
annual meeting of stockholders (or, if applicable, at any special meeting
of stockholders) of PLD, convened after proper notice to and/or waiver of
such notice by the stockholders, with a quorum of the stockholders present
or represented, to approve the transaction contemplated hereby.
6.2. Conditions to Obligations of News America. The obligation
of News America 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) There shall not have occurred and be continuing any
event or events, either individually or in the aggregate, which would have
a material and adverse effect on the property, business, operations,
prospects or condition (financial or otherwise) of PLD;
(b) PLD 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 PLD set forth in this
Agreement 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;
(c) News America and C&W shall have closed the transactions
contemplated by the Stock Purchase Agreement simultaneously with the
transactions contemplated hereby;
(d) News America and PLD shall have executed and delivered
a Director Nomination Agreement containing terms and conditions
satisfactory to News America and PLD and such agreement shall be in full
force and effect;
(e) The common stock of PLD shall be quoted on The Nasdaq
Stock Market, and no action shall have been taken or shall be pending or
threatened in respect of the delisting of the common stock of PLD from
eligibility for such quotation;
(f) News America shall have received a certificate from an
authorized officer of PLD, 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; and
(g) News America shall have received an opinion from E.
Xxxxx Xxxxxxxx, Senior Vice President and General Counsel of PLD, dated the
Closing Date and satisfactory in form and substance to News America and its
counsel, substantially to the effect that:
(i) PLD is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
has the corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby; and the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by requisite corporate action
taken on the part of PLD;
(ii) this Agreement has been executed and delivered by
PLD and is a valid and binding obligation of the PLD enforceable against it
in accordance with its terms, except (A) that such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights, and
(B) that the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to certain equitable defenses and to the
discretion of the court before which any proceeding therefore may be
brought; and
(iii) the issuance and sale of the New PLD Shares to
News America pursuant to this Agreement are not required to be registered
under the Securities Act.
As to any matter contained in such opinion which involves the
laws of any jurisdiction other than the Federal laws of the United States
or the laws of the State of New York, such counsel may rely upon opinions
of counsel admitted in such other jurisdictions. Any opinions relied upon
by such counsel as aforesaid shall be delivered together with the opinion
of such counsel. Such opinion may expressly rely as to matters of fact
upon certificates furnished by PLD and appropriate officers and directors
of each of PLD and PeterStar and by public officials.
6.3. Conditions to Obligations of PLD. The obligations of PLD
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:
(a) News America 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 News America
set forth in this Agreement 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) PLD shall have received stock certificates representing
all of the Holdings Shares, duly endorsed in blank or accompanied by duly
executed instruments of transfer, together with any other documents that
are necessary to transfer to PLD good and marketable title to the Holdings
Shares;
(c) News America and C&W shall have closed the transactions
contemplated by the Stock Purchase Agreement, including the purchase by
News America from C&W of the Holdings Shares;
(d) PLD and C&W shall have closed the transactions
contemplated by the CIBBV Purchase Agreement, including the purchase by PLD
of the CIBBV shares;
(e) PLD shall have received from special Bermuda counsel to
C&W a reliance letter dated the Closing Date to the effect that PLD may
rely on such counsel's opinion to News America in connection with the Stock
Purchase Agreement and assuming that News America transfers to PLD the
Holdings Shares with the same quality of title that News America received
from C&W, PLD will be the beneficial and registered holder of the Holdings
Shares upon the consummation of the transactions contemplated hereby;
(f) PLD shall have received a certificate from an
authorized officer of News America, dated the Closing Date, to the effect
that to the officer's knowledge, the conditions set forth in Section 6.3(a)
have been satisfied; and
(g) PLD shall have received an opinion from Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, special counsel to News America, dated the
Closing Date and satisfactory in form and substance to PLD and its counsel,
substantially to the effect that:
(i) News America is a corporation organized and in
good standing under the laws of the State of Delaware and has the power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby; and the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by requisite action taken on the part of News America;
and
(ii) this Agreement has been executed and delivered by
News America and is a valid and binding obligation of News America,
enforceable against it in accordance with its terms, except (A) that such
enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights, and (B) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to certain
equitable defenses and to the discretion of the court before which any
proceeding therefore may be brought.
As to any matter contained in such opinion which involves the
laws of any jurisdiction other than the Federal laws of the United States
or the laws of the State of New York, such counsel may rely upon opinions
of counsel admitted in such other jurisdictions. Any opinions relied upon
by such counsel as aforesaid shall be delivered together with the opinion
of such counsel. Such opinion may expressly rely as to matters of fact
upon certificates furnished by News America and appropriate officers and
directors of News America and by public officials.
ARTICLE VII
REGISTRATION RIGHTS
7.1. Registration on Request.
(a) Request. Upon the written request of News America or
any permitted successor or assign requesting that PLD effect the
registration under the Securities Act of all or part of any of the PLD
Interest that is not registered under the Securities Act, the New PLD
Shares or any other security of PLD owned, from time to time, by News
America which is registrable under the applicable laws of the United States
(the "Registrable Securities") and specifying the intended method of
disposition thereof, PLD will, subject to the terms of this Agreement, use
its best efforts to effect the registration under the Securities Act of the
Registrable Securities which PLD has been so requested to register for
disposition in accordance with the intended method of disposition stated in
such request; provided, that the request for registration pursuant to this
Section 7.1 shall relate to the intention to dispose of not less than 25%
of the Registrable Securities then owned by News America or its
subsidiaries or affiliates or permitted successors or assigns. For
purposes of this Article VII, the term "News America" shall include, as the
context requires, all holders of Registrable Securities.
(b) Registration Statement Form. Registrations under this
Section 7.1 shall be on such appropriate registration form of the SEC (i)
as shall be selected by PLD and as shall be reasonably acceptable to News
America and (ii) as shall permit the disposition of such Registrable
Securities in accordance with the intended method or methods of disposition
specified in the request for such registration. If, in connection with any
registration under Section 7.1 which is proposed by PLD to be on Form S-3
or any similar short form registration statement which is a successor to
Form S-3, the managing underwriters, if any, shall advise PLD in writing
that in their opinion the use of another permitted form is of material
importance to the success of the offering, then such registration shall be
on such other permitted form.
(c) Expenses. PLD shall pay all Registration Expenses in
connection with only one (1) registration effected in accordance with this
Section 7.1; provided, however, that if at or prior to the fifth
anniversary of the date of this Agreement News America, its affiliates and
subsidiaries, and any permitted successors and assigns, collectively own
more than 50% of the aggregate Registrable Securities subject to this
Agreement (such number to take account of any stock splits, dividends,
combinations or other adjustments affecting any of the Registrable
Securities), then the holders of Registrable Securities shall be entitled
to one (1) additional registration effected in accordance with this Section
7.1 in respect of which PLD shall pay all Registration Expenses.
(d) Effective Registration Statement. A registration
requested pursuant to this Section 7.1 shall not be deemed to have been
effected (i) unless a registration statement with respect thereto has
become effective, provided that a registration which does not become
effective after PLD has filed a registration statement with respect thereto
solely by reason of the refusal to proceed of News America (other than a
refusal to proceed based upon the advice of counsel relating to a matter
with respect to PLD) shall be deemed to have been effected by PLD at the
request of News America unless News America shall have elected to pay all
Registration Expenses in connection with such registration, (ii) if, after
it has become effective, such registration becomes subject to any stop
order, injunction or other order or requirement of the SEC or other
governmental agency or court for any reason, or (iii) the conditions to
closing specified in the purchase agreement or underwriting agreement
entered into in connection with such registration are not satisfied, other
than by reason of some act or omission by News America.
(e) Selection of Underwriters. If a requested registration
pursuant to this Section 7.1 involves an underwritten offering, the
managing or lead underwriter or underwriters thereof shall be selected by
News America and shall be acceptable to PLD, which shall not unreasonably
withhold its acceptance of any such underwriters.
(f) Notwithstanding anything to the contrary contained
herein, PLD shall be entitled to postpone for a reasonable period of time
(but in no event more than 120 days) the filing of a registration statement
if, at the time it receives a request for such registration, (i) PLD
reasonably determines, on the basis of written advice to such effect from
outside counsel or an investment banking firm representing PLD, that such
registration and the offering and sales thereunder by News America would
materially interfere with any financing, acquisition, corporate
reorganization or other material transaction or development involving PLD
or any of its subsidiaries, and promptly gives News America notice of such
determination, (ii) PLD would be required to undergo a special interim
audit or to prepare and file with the SEC sooner than would otherwise be
required pro forma or other financial statements.
7.2. Incidental Registration.
(a) Right to Include Registrable Securities. If PLD at any
time proposes to register any of its securities under the Securities Act
(other than by a registration on Form S-8, or any successor form thereto,
relating to a stock option plan, stock purchase plan, managing directors'
plan, savings or similar plan and other than pursuant to Section 7.1),
whether or not for sale for its own account, it will each such time give
prompt written notice to News America of its intention to do so and of News
America's rights under this Section 7.2. Upon the written request of News
America made within 20 days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to be disposed of
by News America and the intended method of disposition thereof), PLD will,
subject to the terms of this Agreement, use its best efforts to effect the
registration under the Securities Act of all Registrable Securities which
PLD has been so requested to register by News America, to the extent
requisite to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities so to be
registered, by inclusion of such Registrable Securities in the registration
statement which covers the securities which News America proposes to
register, provided that if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, PLD
shall determine for any reason either not to register or to delay
registration of such securities, PLD may, at its election, give written
notice of such determination to News America and, thereupon, (i) in the
case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses
in connection therewith), without prejudice, however, to the rights of News
America to request that such registration be effected as a registration
under Section 7.1, and (ii) in the case of a determination to delay
registering, shall be permitted to delay registering any Registrable
Securities, for the same period as the delay in registering such other
securities. Except for the shares registered pursuant to this Section 7.2,
no registration effected under this Section 7.2 shall relieve PLD of its
obligation to effect any registration upon request under Section 7.1, nor
shall any such registration hereunder be deemed to have been effected
pursuant to Section 7.1. PLD will pay all Registration Expenses in
connection with each registration of Registrable Securities requested
pursuant to this Section 7.2.
(b) Priority in Incidental Registrations. If (i) a
registration pursuant to this Section 7.2 involves an underwritten offering
of the securities so being registered, whether or not for sale for the
account of PLD, to be distributed (on a firm commitment basis) by or
through one or more underwriters of recognized standing under underwriting
terms appropriate for such a transaction, (ii) the Registrable Securities
so requested to be registered for sale for the account of holders of
Registrable Securities are not also to be included in such underwritten
offering (either because PLD has not been requested so to include such
Registrable Securities pursuant to Section 7.4(b) or, if requested to do
so, is not obligated to do so under Section 7.4(b), and (iii) the managing
underwriter of such underwritten offering shall inform PLD and News America
of its belief that the distribution of all or a specified number of such
Registrable Securities concurrently with the securities being distributed
by such underwriters would interfere with the successful marketing of the
securities being distributed by such underwriters (such writing to state
the basis of such belief and the approximate number of such Registrable
Securities which may be distributed without such effect), then PLD may,
upon written notice to News America, reduce the number of such Registrable
Securities the registration of which shall have been requested by News
America so that the resultant aggregate number of such Registrable
Securities so included in such registration shall be equal to the number of
shares stated in such managing underwriter's letter.
7.3. Registration Procedures. If and whenever PLD is required
to effect the registration of any Registrable Securities under the
Securities Act as provided in Sections 7.1 and 7.2, PLD shall, as
expeditiously as possible:
(i) prepare and (in the case of a registration
pursuant to Section 7.1, such filing to be made within 60 days after
the request of News America) file with the SEC the requisite
registration statement to effect such registration (including such
audited financial statements as may be required by the Securities Act
or the rules and regulations promulgated thereunder) and thereafter
use its best efforts to cause such registration statement to become
and remain effective, provided however that PLD may discontinue any
registration of its securities which are not Registrable Securities
(and, under the circumstances specified in Section 7.2(a), its
securities which are Registrable Securities) at any time prior to the
effective date of the registration statement relating thereto,
provided further that before filing such registration statement or any
amendments thereto, PLD will furnish to the counsel selected by the
holders of Registrable Securities which are to be included in such
registration copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such registration statement until the earlier of such time
as all of such securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set
forth in such registration statement or (i) in the case of a
registration pursuant to Section 7.1, the expiration of 180 days after
such registration statement becomes effective, or (ii) in the case of
a registration pursuant to Section 7.2, the expiration of 90 days
after such registration statement becomes effective;
(iii) furnish to News America and each underwriter, if
any, of the securities being sold such number of conformed copies of
such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies
of the prospectus contained in such registration statement (including
each preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such other
documents, as News America and underwriter, if any, may reasonably
request in order to facilitate the public sale or other disposition of
the Registrable Securities owned by News America;
(iv) use its best efforts to register or qualify all
Registrable Securities and other securities covered by such
registration statement under such other securities laws or blue sky
laws of such jurisdictions in the United States as News America and
any underwriter of the securities being sold by News America may
reasonably request, to keep such registrations or qualifications in
effect for so long as such registration statement remains in effect,
and take any other action which may be reasonably necessary or
advisable to enable News America and any such underwriter to
consummate the disposition in such jurisdictions of the securities
owned by News America, except that PLD shall not for any such purpose
be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for the
requirements of this subdivision (iv) be obligated to be so qualified
, to subject itself to taxation in any such jurisdiction or to consent
to general service of process in any such jurisdiction;
(v) use its best efforts to cause all Registrable
Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities as
may be necessary to enable News America to consummate the disposition
of such Registrable Securities;
(vi) furnish to News America a signed counterpart,
addressed to News America and the underwriters, if any, of:
(x) an opinion of counsel for PLD, dated the
effective date of such registration statement (or, if such registration
includes an underwritten public offering, an opinion dated the date of the
closing under the underwriting agreement), reasonably satisfactory in form
and substance to News America and its counsel and covering such matters as
are customarily covered in opinions of issuer's counsel in transactions of
this sort, and
(y) a "comfort" letter (or, in the case News
America does not satisfy the conditions for receipt of a "comfort" letter
specified in Statement on Auditing Standards No. 72, an "agreed upon
procedures" letter), dated the effective date of such registration
statement (and, if such registration includes an underwritten public
offering, a letter of like kind dated the date of the closing under the
underwriting agreement), signed by the independent public accountants who
have certified PLD's financial statements included in such registration
statement, covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the
case of the accountants' letter, with respect to events subsequent to the
date of such financial statements, as are customarily covered in opinions
of issuer's counsel and in accountants' letters delivered to the
underwriters in underwritten public offerings of securities (with, in the
case of an "agreed upon procedures" letter, such modifications or deletions
as may be required under Statement on Auditing Standards No. 35) and, in
the case of the accountants' letter, such other financial matters, and, in
the case of the legal opinion, such other legal matters, as News America
(or the underwriters, if any) may reasonably request;
(vii) notify News America and the managing
underwriter or underwriters, if any, promptly and confirm such advice
in writing promptly thereafter:
(v) when the registration statement, the
prospectus or any prospectus supplement related thereto or post-effective
amendment to the registration statement has been filed, and, with respect
to the registration statement or any post-effective amendment thereto, when
the same has become effective;
(w) of any request by the SEC for amendments or
supplements to the registration statement or the prospectus or for
additional information;
(x) of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or the
initiation of any proceedings by any Person for that purpose;
(z) of the receipt by PLD of any notification
with respect to the suspension of the qualification of any Registrable
Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation or threat of any proceeding for such
purpose; and
(viii) notify News America at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, upon PLD's discovery that, or upon the happening of
any event as a result of which, the prospectus included in such
registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then
existing, and at the request of News America promptly prepare and
furnish to News America and each underwriter, if any, a reasonable
number of copies of a supplement to or an amendment of such prospectus
as may be necessary so that, as thereafter delivered to the purchasers
of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing;
(ix) use its best efforts to obtain the withdrawal of
any order suspending the effectiveness of the registration statement
at the earliest possible moment; and
(x) otherwise use its best efforts to comply with all
applicable rules and regulations of SEC, and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, but not more
than eighteen months, beginning with the first day of PLD's first full
calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder, and will
furnish to News America at least five business days prior to the
filing thereof a copy of any amendment or supplement to such
registration statement or prospectus and shall not file any thereof to
which News America shall have reasonably objected on the grounds that
such amendment or supplement does not comply in all material respects
with the requirements of the Securities Act or of the rules or
regulations thereunder.
PLD will not file any registration statement or amendment thereto
hereunder or any prospectus or any supplement thereto (including such
documents incorporated by reference and proposed to be filed after the
initial filing of the registration statement) to which News America shall
reasonably object, provided that PLD may file such document in a form
required by law or upon the advice of its counsel.
News America agrees by acquisition of such Registrable Securities
that, upon receipt of any notice from PLD of the occurrence of any event of
the kind described in subdivision (viii) of this Section 7.3, it will
forthwith discontinue its disposition of Registrable Securities pursuant to
the registration statement relating to such Registrable Securities until
its receipt of the copies of the supplemented or amended prospectus
contemplated by subdivision (viii) of this Section 7.3 and, if so directed
by PLD, will deliver to PLD (at PLD's expense) all copies, other than
permanent file copies, then in its possession of the prospectus relating to
such Registrable Securities current at the time of receipt of such notice.
In the event PLD shall give any such notice, the period mentioned in
paragraph (ii) of this Section 7.3 shall be extended by the length of the
period from and including the date when News America shall have received
such notice to the date on which each such seller has received the copies
of the supplemented or amended prospectus contemplated by paragraph (viii)
of this Section 7.3.
7.4. Provision of Information; Transfer of Shares After
Registration.
(a) News America shall, prior to the filing of any
Registration Statement pursuant to this Agreement, provide PLD in writing
with such information specified in Item 507 of Regulation S-K under the
Securities Act and any other similar information reasonably requested by
PLD for use in connection with such Registration Statement or any related
prospectus or preliminary prospectus. News America shall promptly furnish
to PLD all information required to be disclosed in order to make the
information previously furnished to PLD not materially misleading.
(b) News America agrees that it will not effect any
disposition of the Registrable Securities that would constitute a sale
within the meaning of the Securities Act except as contemplated in the
Registration Statement or as otherwise in compliance with applicable
securities laws, including, without limitation, to the extent applicable,
the prospectus delivery requirements of the Securities Act.
7.5. Indemnification.
(a) Indemnification by PLD. In the event of any
registration of any securities of PLD under the Securities Act, PLD will,
and hereby does agree to, indemnify and hold harmless News America against
any losses, claims, damages or liabilities, joint or several, to which News
America or any director or officer of News America or underwriter or
controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities
Act, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading. Such
indemnification shall be subject to customary terms and provisions
governing indemnification in transactions of this type; provided, however,
that PLD shall not be liable in any such case to the extent that such loss,
claim, damages or liability arises out of, or is based upon (i) an untrue
statement of a material fact made in such Registration Statement, or any
omission of a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, made in reliance upon and in conformity with
written information furnished to PLD by or on behalf of News America
specifically for use in preparation of such Registration Statement, (ii)
the failure of News America to comply with the covenants and agreements
contained in Sections 7.3 or 7.4(a) hereof respecting sale of the
Registrable Securities or (iii) any untrue statement of a material fact, or
any omission of a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading, in any prospectus that is corrected in any
subsequent prospectus that was delivered to News America prior to the
pertinent sale or sales by News America.
(b) Indemnification by News America. PLD may require, as a
condition to including any Registrable Securities in any registration
statement filed pursuant to Section 7.3, that PLD shall have received an
undertaking satisfactory to it from News America of such Registrable
Securities, to indemnify and hold harmless (in the same manner and to the
same extent as set forth in subdivision (a) of this Section 7.5) PLD, each
director of PLD each officer of PLD and each other person, if any, who
controls PLD within the meaning of the Securities Act, with respect to (i)
any statement or alleged statement in or omission or alleged omission from
such registration statement, any preliminary prospectus, final prospectus
or summary prospectus contained therein, or any amendment or supplement
thereto, if such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to PLD through an instrument duly executed by News
America specifically stating that it is for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement, (ii) the failure of News America to
comply with the covenants and agreements contained in the last paragraph of
Section 7.3 or in Section 7.4(a) hereof respecting sale of the Registrable
Securities or (iii) any untrue statement of a material fact, or any
omission of a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, in any prospectus that is corrected in any
subsequent prospectus that was delivered to News America prior to the
pertinent sale or sales by News America.
ARTICLE VIII
TERMINATION AND ABANDONMENT
8.1. Termination.
(a) This Agreement may be terminated at any time prior to
the Closing Date, by mutual written consent of News America and PLD.
(b) This Agreement may be terminated by News America, on
the one hand, or PLD, 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 8.1(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 News
America, on the one hand, or PLD, on the other hand, if (i) any
governmental or regulatory body, the consent of which is a condition to the
obligations of PLD and News America 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.
(d) This Agreement may be terminated by News America, on
the one hand, or PLD, 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.
8.2. 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
8.1, 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 in respect of
any breach of any representation, warranty or agreement contained in this
Agreement and provided that (a) the provisions of Sections 5.4 and Article
X (except for section 10.4) hereof shall survive such termination, and (b)
that regardless of such termination the provisions of Article IX hereof
shall continue with respect to any such claims. 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 IX
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
9.1. Survival of Representations. All representations,
warranties and agreements made by PLD or News America in this Agreement
shall survive the Closing until one (1) year after the Closing.
9.2. Statements as Representations. PLD's Written Disclosure
Materials and any statements contained herein made by News America shall be
deemed representations and warranties within the meaning of Section 9.1
hereof.
9.3. PLD's Indemnification of News America. Subject to the
conditions of this Article VIII, PLD hereby agrees that it shall indemnify,
defend and hold harmless News America and any parent, subsidiary and
affiliate of News America (collectively, the "News America 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 attorneys' fees and expenses
(collectively, "Damages"), asserted against, resulting to, imposed upon or
incurred by any of News America Group, directly or indirectly, arising out
of or resulting from a breach of any representation, warranty or agreement
of PLD contained in or made pursuant to this Agreement or any facts or
circumstances constituting such a breach (collectively, "News America's
Indemnifiable Claims"); provided, however, that the indemnification
obligation of PLD with respect to any inaccuracy in any of the
representations or warranties made by PLD in this Agreement shall arise
only in the event that PLD had knowledge of such inaccuracy on or before
the Closing; provided, further, that for purposes of this Agreement
"knowledge" shall mean knowledge on the part of any member of management of
PLD or knowledge of such circumstances that would lead a person not
negligent to investigate and, more likely than not, obtain actual
knowledge.
9.4. News America's Indemnification of PLD. Subject to the
conditions of this Article VIII, News America hereby agrees that it shall
indemnify, defend and hold harmless PLD and any parent, subsidiary and
affiliate of PLD (collectively, the "PLD Group") from and against all
Damages asserted against, resulting to, imposed upon or incurred by any of
the PLD Group, directly or indirectly, arising out of or resulting from a
breach of any representation, warranty or agreement of News America
contained in or made pursuant to this Agreement or any facts or
circumstances constituting such a breach ("PLD Indemnifiable Claims"; PLD's
Indemnifiable Claims and News America's Indemnifiable Claims are
collectively referred to herein as the "Indemnifiable Claims"); provided,
however, that the indemnification obligation of News America with respect
to any inaccuracy in any of the representations or warranties made by News
America in this Agreement shall arise only in the event that News America
had knowledge of such inaccuracy on or before the Closing; provided,
further, that for purposes of this Agreement "knowledge" shall mean
knowledge on the part of any member of management of News America or
knowledge of such circumstances that would lead a person not negligent to
investigate and, more likely than not, obtain actual knowledge.
9.5. Conditions of Indemnification. The obligations and
liabilities of PLD under Section 9.3 or News America under Section 9.4,
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 News America Group or the PLD 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.
(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 9.5 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, the
Indemnified Party shall have the right to defend, compromise or settle such
Indemnifiable Claim, and (ii) the Indemnifying Party shall not, without the
Indemnified Party 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 and/or such member, as the case may be,
a release from all liability in respect to such Indemnifiable Claim.
9.6. Cushion. The provisions for indemnity contained in Section
9.3 and Section 9.4 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 One Hundred Thousand
dollars (USD$100,000), but to the extent that the amount or amounts of
damages in respect of Indemnifiable Claims exceeds $100,000, the indemnity
provisions hereunder shall apply to all such damages, without regard to the
$100,000 level.
9.7. Limitation of Liability. Anything in this Agreement to the
contrary notwithstanding, the liability of an Indemnifying Party to
indemnify an Indemnified Party against any damages sustained in connection
with any Indemnifiable Claim shall be limited to Indemnifiable Claims as to
which written notice shall have been given to the Indemnifying Party on or
prior to the earlier of the first anniversary date of the Closing Date or
public release of audited financials of PLD covering the fiscal year ended
December 31, 1998, 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, if such
Indemnifiable Claim relates to a representation or warranty made by (a)
News America, the amount of liability shall be limited to $100,000 and (b)
PLD, the amount of liability shall be converted to PLD Common Stock and
issued to News America at the same rate/value as the PLD shares issued to
News America by PLD pursuant to Section 1.1 hereof, provided that the
amount of liability of PLD shall be limited to twenty million U.S. dollars
($20,000,000). In the event that the rules of any stock exchange upon
which the PLD Common Stock is then traded, or any interdealer quotation
system upon which quotations for the PLD Common Stock are then available,
shall not permit the issuance of PLD Common Stock without either the
approval of shareholders of PLD or the receipt of some other approval, then
in satisfaction of its liability to indemnify pursuant to this Article IX,
PLD shall issue the maximum number of shares of PLD Common Stock as can
then be issued in accordance with such rules, and shall issue in respect of
the remainder of such liability shares of preferred stock having such terms
and conditions as may be agreed upon between News America and PLD, such
preferred stock to be convertible into PLD Common Stock at such time as any
requisite shareholder or other approval is obtained.
9.8. Remedies Cumulative. The remedies provided herein shall be
cumulative and shall not preclude the assertion by News America or PLD of
any other rights or the seeking of any other remedies against the other
party, as the case may be.
9.9. Assignment of Certain Representations, Warranties and
Indemnification Obligations. In lieu of making any representations or
warranties with respect to the Holdings Shares being sold to and exchange
with PLD hereunder, News America hereby assigns to the benefit of PLD, its
successors and assigns, the representations, warranties and agreements made
by C&W in the Stock Purchase Agreement with respect to the Holdings Shares
and its indemnification obligations under such agreement, and agrees that
PLD has the right to rely upon such representations, warranties and
agreements, and enforce such indemnification obligations, as fully as if it
were a party to the Stock Purchase Agreement. PLD acknowledges and agrees
that its sole recourse with respect to the Holdings Shares is to seek
indemnification from C&W with respect thereto and further agrees that News
America shall have no liability therefor.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. 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.
10.2. 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.
10.3. 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 a recognized overnight courier service, upon confirmation of
receipt of a facsimile transmission, or five days after deposit with the
United States Post Office, 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 PLD, to:
PLD Telekom Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxx
If to News America, to:
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.)
10.4. 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; provided, however, that (a) PLD will have the right, at
any time at or prior to the Closing, to designate in writing, in accordance
with applicable law, one or more of its Affiliates to purchase, in whole or
in part, the Holdings Shares on the terms set out in this Agreement, and
PLD shall remain jointly and severally liable with its designee(s) under
this Agreement following such designation, (b) News America will have the
right, at any time at or prior to the Closing, to designate in writing, in
accordance with applicable law, one or more of its affiliates to purchase,
in whole or in part, the New PLD Shares on the terms set out in this
Agreement, and News America shall remain jointly and severally liable with
its designee(s) under this Agreement following such designation and
(c) News America shall have the right, at its sole discretion, to assign to
ZAO LogoVAZ ("LogoVAZ") its rights to purchase one-half of the New PLD
Shares (and, if such rights are exercised, such rights shall be exercised
by News America and LogoVAZ concurrently as to the entire portion of the
New PLD Shares); provided, that it shall be a condition to any assignment
under clauses (b) or (c) hereof that the assignee represent and warrant to
PLD as to the matters set forth in Section 4.6, and otherwise agrees to be
bound by the terms of this Agreement as if such assignee had been a party
to this Agreement.
10.5. 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 provisions of this Section 10.5, each Party
may disclose such information to its Agents in connection with the
transactions contemplated by this Agreement or any of the other ancillary
Agreements 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.
10.6. 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.
10.7. 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.
10.8. 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 and (c) the terms
"affiliate" and "parent" shall have the meanings set forth in Rule 12b-2 of
the Exchange Act.
10.9. Entire Agreement. This Agreement, including the
documents, schedules and certificates referred to herein, embody the entire
agreement and understanding of the parties hereto 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.
IN WITNESS WHEREOF, PLD and News America have caused this
agreement to be signed by their respective duly authorized officers as of
the date first above written.
NEWS AMERICA INCORPORATED
By: /s/ XXXX X. XXXXXX
--------------------------------
Name: XXXX X. XXXXXX
Title: SENIOR VICE PRESIDENT
PLD TELEKOM INC.
By: /s/ XXXXX X.X. XXXX
--------------------------------
Name: XXXXX X.X. XXXX
Title: DIRECTOR
