Exhibit 7.5
SHARE TRANSFER AGREEMENT
ENTERED INTO AT MONTREAL, PROVINCE OF QUEBEC, ON FEBRUARY 28, 2002
AMONG: MICROCELL CAPITAL II INC., a corporation incorporated under
the laws of Canada, having its registered office in Montreal,
Canada, ("MICROCELL");
AND: OZ COMMUNICATIONS, INC., a corporation incorporated under the
laws of the State of California, United States of America,
having its principal place of business in Reykjavik, Iceland,
("OZ");
WITNESSETH:
WHEREAS Microcell owns 11,405,860 common shares in the capital stock of OZ;
WHEREAS in consideration for its agreement to amend certain agreements between
Microcell and certain of its affiliates and Oz and certain of its affiliates,
Microcell wishes to transfer to OZ 5,299,160 common shares (the "TRANSFERRED
SHARES") held by it in the capital stock of OZ;
WHEREAS OZ wishes to accept for cancellation the Transferred Shares held by
Microcell.
NOW THEREFORE the parties hereto hereby covenant and agree as follows.
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
1.1 DEFINITIONS - As used in this Agreement, the following terms have the
following meaning:
1.1.1 "AGREEMENT" means this Share Transfer Agreement including its
recitals, and all written instruments supplemental hereto
signed by all the parties hereto, and any amendment or
confirmation hereof;
1.1.2 "BUSINESS DAY" means any day, other than a Saturday, Sunday,
or other day on which the majority of the branches of the
principal commercial banks located in Montreal, Quebec are not
open for business during normal banking hours;
1.1.3 "CLOSING DATE" means the date of this Agreement, and "Closing"
means the completion of all the transactions contemplated
hereby at the time of closing on the Closing Date;
1.1.4 "LIENS" means (i) all hypothecs, mortgages, pledges,
privileges, liens, security interests, transfers of property
in stock, security granted under the Bank Act (Canada),
charges, leases, occupation rights, restrictive covenants,
title defects and other encumbrances or rights of others of
any nature whatsoever or however arising, and (ii)
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all actions, claims or demands of any nature whatsoever or
howsoever arising; and "Lien" means any one of them;
1.1.5 "PARTIES" means Microcell and OZ and "Party" means either of
them;
1.1.6 "PERSON" means an individual, a corporation, a partnership, a
trustee or any unincorporated organization;
1.2 APPLICABLE LAW - This Agreement shall be construed and enforced in
accordance with, and the rights of the Parties shall be construed and
governed by, the laws of the Province of Quebec and the laws of Canada
applicable therein.
1.3 RECITALS - The recitals hereto form an integral part of this Agreement.
1.4 HEADINGS - The titles and headings in this Agreement are solely for
reference and shall not affect the scope, intention or interpretation
of the provisions hereof.
1.5 GENDER - In all cases where the context of this Agreement requires or
permits same, the singular shall include the plural and the masculine
shall include the feminine.
1.6 ENTIRE AGREEMENT - This Agreement, and the agreements and other
documents to be delivered pursuant hereto, constitute the entire
agreement between the Parties pertaining to the subject matter hereof
and supersede all prior agreements, and there are no warranties,
representations or other agreements between the Parties in connection
with the subject matter hereof except as specifically set forth herein
and, the other documents to be delivered pursuant hereto.
1.7 SEVERABILITY - Each provision of this Agreement shall be interpreted
separately and the nullity of any provision of this Agreement shall not
render the remaining parts of the Agreement null.
1.8 WAIVER - No supplement, modification or waiver or termination of this
Agreement shall be binding unless executed in writing by the Party to
be bound thereby. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions
(whether or not similar) nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
1.9 TIME - shall be of the essence of this Agreement.
ARTICLE 2
TRANSFER
2.1 TRANSFER - Microcell hereby agrees to transfer to OZ, and OZ hereby
agrees to accept for cancellation the Transferred Shares.
2.2 CONSIDERATION - As consideration for the transfer of the Transferred
Shares, OZ has agreed to amend certain contracts by and between
Microcell and certain of its affiliates and OZ and certain of its
affiliates.
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ARTICLE 3
WARRANTIES AND REPRESENTATIONS OF MICROCELL
Microcell warrants and represents to OZ as follows and acknowledges that OZ is
relying upon such representations and warranties in connection with the purchase
by OZ of the Transferred Shares and that OZ would not have entered into this
Agreement without the full benefit of such warranties and representations.
3.1 POWERS AND AUTHORIZATIONS - Microcell has the capacity, power and
authority and full legal right to enter into and execute this Agreement
and to perform all of its obligations hereunder; Microcell has taken
all necessary action to authorize the execution of this Agreement on
its behalf by its officers, directors and shareholders and to authorize
the performance of all of its obligations hereunder; this Agreement has
been duly executed by a duly authorized person on behalf of Microcell
and this constitutes valid and legally binding obligations of Microcell
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, and other laws
affecting the rights of creditors generally and except that equitable
remedies may be granted only in the discretion of a court of competent
jurisdiction.
3.2 TITLE TO TRANSFERRED SHARES - Microcell shall transfer to OZ good and
valid title to such Transferred Shares, free and clear of all Liens.
ARTICLE 4
WARRANTIES AND REPRESENTATIONS OF OZ
OZ warrants and represents to Microcell as follows and acknowledges that
Microcell is relying upon such representations and warranties in connection with
the sale to OZ of the Transferred Shares and that Microcell would not have
entered into this Agreement without the full benefit of such warranties and
representations.
4.1 CORPORATE STATUS - OZ is a corporation duly incorporated, organized and
is validly existing under the laws of the state of California (United
States of America) and is in good standing under the laws of each
jurisdiction in which it is carrying on business or in which it owns or
holds property.
4.2 CORPORATE POWERS AND AUTHORIZATIONS - OZ has the corporate capacity,
power and authority and full legal right to enter into and execute this
Agreement and all ancillary documents hereto and to perform all of its
obligations thereunder. OZ has taken all necessary action to authorize
the execution of this Agreement and its ancillary documents on its
behalf by its officers, directors and shareholders and to authorize the
performance of all of its obligations thereunder; this Agreement and
such ancillary documents have been duly executed by a duly authorized
person on behalf of OZ and this Agreement and its ancillary documents
constitute valid and legally binding obligations of OZ enforceable
against it in accordance with their terms, except as enforcement may be
limited by bankruptcy, insolvency, and other laws affecting the rights
of creditors generally and except that equitable remedies may be
granted only in the discretion of a court of competent jurisdiction.
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ARTICLE 5
CLOSING
5.1 CLOSING - At the time of closing on the Closing Date, Microcell shall
deliver to OZ, the actual possession of the share certificate NC-05
representing 11,405,860 common shares of OZ, duly endorsed for transfer
to OZ of the Transferred Shares and OZ shall issue in the name of
Microcell a share certificate representing 6,106,700 common shares of
OZ, representing the balance of the common shares held by Microcell in
the capital stock of OZ.
ARTICLE 6
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES - All the warranties and
representations and covenants and agreements made and given hereunder
or in any agreement contemplated hereby shall continue to have full
force and effect from the date of execution hereof, notwithstanding any
verification made by any of the Parties, the whole subject to the
following terms and conditions:
6.1.1 NO TIME LIMIT - All of the warranties and representations set
out in Sections 3.1, 3.2, 4.1 and 4.2, shall continue to have
full force and effect for an unlimited period of time.
ARTICLE 7
MISCELLANEOUS
7.1 FURTHER ASSURANCES - Each of the Party upon the request of the other
Party, whether before or after the Closing, shall do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged or
delivered all such further acts, deeds, documents, assignments,
transfers conveyances and assurances as may be reasonably necessary or
desirable to effect complete consummation of the transactions
contemplated by this Agreement.
7.2 SUCCESSORS IN INTEREST - This Agreement and the provisions hereof shall
inure to the benefit of and be binding upon the Parties and their
respective successors and assigns. OZ and Microcell may not assign this
Agreement or any of its rights and obligations hereunder without the
prior consent of the other Party.
7.3 NOTICES - Any notice, direction or other instrument required or
permitted to be given hereunder shall be in writing and shall be
delivered either by personal delivery or by telex, telecopier or
similar telecommunication device and addressed as follows:
(a) in the case of OZ, to it at:
OZ COMMUNICATIONS, INC.
Xxxxxxxxxxx 00
000 Xxxxxxxxx, Xxxxxxx
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Fax: x000 000-0000
Attention: Xxxxxx Xxxxxxxxxx, General Counsel
(b) in the case of Microcell, to it at:
MICROCELL CAPITAL II INC.
0000 Xxxx-Xxxxxxxx Xxxx. Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx X0X 0X0
XXXXXX
Fax: (000) 000-0000
Attention: Vice-President, Legal Affairs
Any notice, direction or other instrument aforesaid shall be deemed to
have been given and received, if sent by telex, telecopier or similar
telecommunications device on the next Business Day following receipt of
such transmission or, if delivered, to have been given and received on
the date of such delivery. Any Party may change its address for service
by written notice given as aforesaid.
7.4 EXPENSES - Microcell and OZ shall bear and pay all of their respective
costs, expenses and fees (including, without limitation, legal counsel
and accounting fees and disbursements) incurred by it in connection
with the preparation, execution and consummation of this Agreement and
the transactions contemplated hereunder; it being understood, whether
or not the transaction contemplated in this Agreement and ancillary
documentation closes, Microcell shall not be responsible and shall not
assume any of OZ's transaction expenses.
7.5 COUNTERPARTS - This Agreement may be executed in one or more
counterparts, each of which when so executed shall be deemed an
original, and such counterparts together shall constitute one and the
same instrument.
7.6 NO THIRD-PARTY BENEFICIARY - Except as otherwise indicated herein,
nothing in this Agreement shall confer any rights upon any Person or
entity not a party to this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date and at
the place first above mentioned.
OZ COMMUNICATIONS, INC.
By:
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Xxxxxx Xxxxxxxx
MICROCELL CAPITAL II INC.
By:
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Xxxxxxx Xxxx
