EXHIBIT 1
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SECURITIES PURCHASE AGREEMENT
by and among
TDC A/S,
XXXXXXX GLOBAL SPECIAL SITUATIONS FUND LIMITED,
ASSET HOLDER PCC NO. 2 LIMITED RE XXXXXXX EMERGING ECONOMY PORTFOLIO,
ASSET HOLDER PCC LIMITED RE: XXXXXXX EMERGING MARKETS LIQUID
INVESTMENT PORTFOLIO,
XXXXXXX EMERGING MARKETS DEBT FUND
and
EMDCD LIMITED
Dated as of March 30, 2005
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.........................................................2
Section 1.1. Definitions....................................................2
ARTICLE II PURCHASE AND SALE OF SHARES.........................................3
Section 2.1. Purchase and Sale..............................................4
Section 2.2. Purchase Price.................................................4
Section 2.3. Closing........................................................4
Section 2.4. Closing Deliveries by Purchaser................................4
Section 2.5. Closing Deliveries by Seller...................................5
Section 2.6. Designation of Purchasing Entity...............................5
Section 2.7. Prepayment of Interest.........................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLERS...........................6
Section 3.1. Organization and Qualification of Sellers......................6
Section 3.2. Authority; Non-Contravention; Approvals........................6
Section 3.3. Ownership of Securities........................................6
Section 3.4. Acknowledgement................................................7
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER.........................7
Section 4.1. Organization and Qualification.................................7
Section 4.2. Authority; Non-Contravention; Approvals........................7
Section 4.3. Investment.....................................................7
Section 4.4. Sophisticated Buyer............................................8
ARTICLE V COVENANTS...........................................................8
Section 5.1. Public Announcements...........................................8
Section 5.2. Further Assurances; Post-Closing Cooperation...................8
Section 5.3. Cooperation on Tax Matters.....................................8
Section 5.4. Termination of the Stockholders Agreement......................8
Section 5.5. Transfer of Company Warrants...................................9
Section 5.6. Board of Directors.............................................9
ARTICLE VI CONDITIONS..........................................................9
Section 6.1. Conditions to Each Party's Obligations.........................9
Section 6.2. Conditions to Purchaser's Obligations..........................9
Section 6.3. Conditions to Sellers' Obligations.............................9
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TABLE OF CONTENTS
(continued)
Page
ARTICLE VII TERMINATION OF AGREEMENT...........................................10
Section 7.1. Termination...................................................10
Section 7.2. Effect of Termination.........................................10
ARTICLE VIII MISCELLANEOUS......................................................10
Section 8.1. Notices.......................................................10
Section 8.2. Entire Agreement..............................................12
Section 8.3. Expenses......................................................12
Section 8.4. Waiver........................................................12
Section 8.5. Amendment.....................................................12
Section 8.6. No Third-Party Beneficiary....................................12
Section 8.7. Assignment; Binding Effect....................................12
Section 8.8. CONSENT TO JURISDICTION AND SERVICE OF PROCESS................13
Section 8.9. Specific Performance..........................................13
Section 8.10. Invalid Provisions............................................13
Section 8.11. GOVERNING LAW.................................................14
Section 8.12. Counterparts..................................................14
Section 8.13. Sellers' Several Obligations..................................14
Section 8.14. Interpretation................................................14
Section 8.15. Execution by the Custodians...................................14
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EXHIBITS:
Exhibit A-- Form of Transfer of the Company Notes
Exhibit B-- Form of Transfer of the Company Warrants
Exhibit C-- Form of Opinion of US Counsel to Sellers
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SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated as of March 30, 2005, by and among TDC
A/S, a limited liability company incorporated in Denmark ("Purchaser"), Xxxxxxx
Global Special Situations Fund Limited, an open-ended investment fund with
limited liability registered in Guernsey ("GSSF"), Asset Holder PCC No. 2
Limited re Xxxxxxx Emerging Economy Portfolio, a protected cell company
organized under the laws of Guernsey ("AEEP"), Asset Holder PCC Limited Re:
Xxxxxxx Emerging Markets Liquid Investment Portfolio, a protected cell company
organized under the laws of Guernsey ("EMLIP"), EMDCD Limited, an exempted
company incorporated with limited liability in the Cayman Islands ("EMDCD"), and
Xxxxxxx Emerging Market Debt Fund, an exempted company incorporated with limited
liability in the Cayman Islands ("EMDF" and together with GSSF, AEEP, EMLIP and
EMDCD, "Sellers" and each a "Seller").
BACKGROUND
WHEREAS, GSSF is the beneficial owner of 1,548,572 (the "GSSF Shares")
shares of the Common Stock of Hungarian Telephone and Cable Corp., a corporation
incorporated under the laws of the state of Delaware (the "Company"), and of
12,000 shares of the Company's Series A Convertible Preferred Stock (the "GSSF
Preferred Shares") and Barings (Guernsey) Limited (or its duly appointed
nominee) is the holder of record of the GSSF Shares and GSSF Preferred Shares,
as the Custodian of GSSF;
WHEREAS, EMDCD is the beneficial owner of 761,164 shares of the Company's
Common Stock (the "EMDCD Shares") and The Northern Trust Company is the holder
of record of the EMDCD Shares, as the Custodian of EMDCD;
WHEREAS, AEEP is the beneficial owner of 441,200 shares of the Company's
Common Stock (the "AEEP Shares" and together with the GSSF Shares, the EMDCD
Shares and the GSSF Preferred Shares, the "Company Stock") and Barings
(Guernsey) Limited (or its duly appointed nominee) is the holder of record of
the AEEP Shares, as the Custodian of AEEP;
WHEREAS, EMLIP is the beneficial owner of warrants for the purchase of
2,100,000 shares of the Company's Common Stock (the "EMLIP Warrants") and the
Company's Amended and Restated Unsecured Notes (the "EMLIP Notes") having an
aggregate principal amount of $21,000,000 and Barings (Guernsey) Limited (or its
duly appointed nominee) is the holder of record of the EMLIP Warrants and EMLIP
Notes, as the Custodian of EMLIP;
WHEREAS, EMDF is the beneficial owner of warrants for the purchase of
400,000 shares of the Company's Common Stock (the "EMDF Warrants" and together
with the EMLIP Warrants, the "Company Warrants") and the Company's Amended and
Restated Unsecured Notes (the "EMDF Notes" and together with the EMLIP Notes,
the "Company Notes") having an aggregate principal amount of $4,000,000 and the
Northern Trust Company is the holder of record of the EMDF Warrants and EMDF
Notes, as the Custodian of EMDF;
WHEREAS, the Company Stock, the Company Warrants and the Company Notes
represent all of the securities of the Company owned by Sellers (collectively,
the "Securities"); and
WHEREAS, Sellers wishes to sell and dispose of, and Purchaser wishes to
purchase and assume, the Securities on the terms and subject to the conditions
set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
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Section 1.1. Definitions.
(a) As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with the Person specified. The
term "control" (including the terms "controlling," "controlled by" and
"under common control with") means possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agreement" means this Securities Purchase Agreement, together with
the Schedules and Exhibits attached hereto.
"Business Day" means any day other than a Saturday, Sunday or any day
on which banks located in the State of New York, the United Kingdom and
Denmark are authorized or required to be closed for the conduct of regular
banking business.
"Closing" means the closing of the sale and purchase of the Securities
as contemplated by this Agreement.
"Custodian" means each of Barings (Guernsey) Limited (or its duly
appointed nominee) and The Northern Trust Company, as the holders of record
of the Securities as set forth in the Recitals.
"Encumbrances" means any and all liens, charges, security interests,
mortgages, pledges, options, preemptive rights, rights of first refusal or
first offer, proxies, levies, voting trusts or agreements, or other adverse
claims or restrictions on title or transfer of any nature whatsoever;
provided, however, that restrictions on the transferability of the Company
Warrants as set forth in the terms of the Company Warrants shall not be
considered an Encumbrance.
"Governmental Authority" means any international, supranational,
national, provincial, regional, federal, state, municipal or local
government, any instrumentality, subdivision, court, administrative or
regulatory agency or commission or other authority thereof, or any
quasi-governmental or private body exercising any regulatory, taxing,
importing or other governmental or quasi-governmental authority.
"Person" means any natural person, corporation, general partnership,
limited partnership, limited or unlimited liability company,
proprietorship, joint venture, other business organization, trust, union,
association or Governmental Authority.
"Securities Act" means the Securities Act of 1933, as amended.
"Tax" means any tax, governmental fee or other like assessment or
charge of any kind whatsoever (including, but not limited to, withholding
on amounts paid to or by any Person), together with any interest, penalty,
addition to tax or additional amount imposed by any governmental authority
(a "Tax Authority") responsible for the imposition of any such tax
(domestic or foreign), and any liability
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for any of the foregoing as transferee or successor or under a tax sharing,
tax allocation or tax indemnity agreement.
"Tax Return" means any return, declaration, report, claim for refund
or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
(b) For the purposes of this Agreement, except to the extent that the
context otherwise requires:
(i) when a reference is made in this Agreement to an Article,
Section, Exhibit or Schedule, such reference is to an Article or
Section of, or an Exhibit or Schedule to, this Agreement unless
otherwise indicated;
(ii) the table of contents and headings for this Agreement are
for reference purposes only and do not affect in any way the meaning
or interpretation of this Agreement;
(iii) whenever the words "include," "includes" or "including" (or
similar terms) are used in this Agreement, they are deemed to be
followed by the words "without limitation";
(iv) the words "hereof," "herein" and "hereunder" and words of
similar import, when used in this Agreement, refer to this Agreement
as a whole and not to any particular provision of this Agreement;
(v) all terms defined in this Agreement have their defined
meanings when used in any certificate or other document made or
delivered pursuant hereto, unless otherwise defined therein;
(vi) the definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms;
(vii) if any action is to be taken by any party hereto pursuant
to this Agreement on a day that is not a Business Day, such action
shall be taken on the next Business Day following such day;
(viii) references to a Person are also to its permitted
successors and assigns;
(ix) the use of "or" is not intended to be exclusive unless
expressly indicated otherwise;
(x) "contract" includes any note, bond, mortgage, indenture, deed
of trust, loan, credit agreement, franchise concession, contract,
agreement, permit, license, lease, purchase order, sales order,
arrangement or other commitment, obligation or understanding, whether
written or oral; and
(xi) "$" and "US$" means the official currency of the United
States.
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ARTICLE II
PURCHASE AND SALE OF SHARES
Section 2.1. Purchase and Sale. At the Closing, upon the terms and subject
to the conditions of this Agreement, Sellers will cause the Custodians to sell,
transfer, assign, convey and deliver to Purchaser, and Purchaser will purchase
from Sellers, and acquire good and valid title to, free and clear of all
Encumbrances (other than Encumbrances arising under the Securities Act or any
applicable state securities laws) the Securities for the Purchase Price.
Section 2.2. Purchase Price. The purchase price (the "Purchase Price") to
be paid to the Sellers for the Securities at the Closing shall be in accordance
with the instructions and in the amounts set forth on Schedule 2.2 to this
Agreement and, subject to adjustment as provided in Section 2.7, shall be equal
to the sum of:
(a) $30,197,154 in exchange for the GSSF Shares, which represents a
price of $19.50 per share;
(b) $8,603,400 in exchange for the AEEP Shares, which represents a
price of $19.50 per share;
(c) $14,842,698 in exchange for the EMDCD Shares, which represents a
price of $19.50 per share;
(c) $2,540,040 in exchange for the GSSF Preferred Shares, which
represents a price of $195 per share, plus accrued but unpaid interest of
$16.67 per share;
(d) $19,950,000 in exchange for the EMLIP Warrants, which represents a
price of $9.50 per warrant share;
(e) $3,800,000 in exchange for the EMDF Warrants, which represents a
price of $9.50 per warrant share;
(f) $21,000,000 in exchange for the EMLIP Notes, which represents a
price equal to 100% of the aggregate principal amount of such notes; and
(g) $4,000,000 in exchange for the EMDF Notes, which represents a
price equal to 100% of the aggregate principal amount of such notes.
Section 2.3. Closing. The Closing shall be held at the offices of Xxxxxxxx
Chance, 00 Xxxxx Xxxx Xxxxxx, Xxxxxx X00 0XX, at 10:00 a.m. local time, on the
third Business Day following the satisfaction or waiver of all conditions set
forth in Article VI (other than conditions that, by their nature, are to be
satisfied at the Closing, but subject to the satisfaction or waiver of those
conditions) or at such other time or place as Purchaser and Seller mutually
agree (which is expected to be April 12, 2005), but in no event shall the
Closing take place prior to April 7, 2005.
Section 2.4. Closing Deliveries by Purchaser. At the Closing, Purchaser
will deliver or cause to be delivered to Sellers:
(a) the Purchase Price by wire transfers of immediately available
funds to such accounts as directed by Sellers on Schedule 2.2 to this
Agreement; and
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(b) duly executed counterparts of:
(i) the Transfer of Company Notes, in the form of Exhibit A
attached to this Agreement; and
(ii) the Transfer of Company Warrants, in the form of Exhibit B
attached to this Agreement ((i) and (ii), collectively, the "Transfer
Documents").
Section 2.5. Closing Deliveries by Seller. At the Closing, Sellers will
deliver to Purchaser:
(a) Stock certificates, evidencing the Company Stock, in each case
endorsed in blank or with an executed blank stock power attached; and
(b) duly executed counterparts of:
(i) the Transfer Documents; and
(ii) the opinion of US counsel to Sellers, in the form of Exhibit
C attached to this Agreement.
Section 2.6. Designation of Purchasing Entity. At any time at or prior to
the Closing, Purchaser may deliver a notice to Sellers designating one or more
of its Affiliates as a purchasing entity (each, a "Purchasing Entity") of some
or all of the Securities. The Securities shall be assigned and transferred to
the Purchasing Entity in accordance with instructions set forth in such notice.
Any assignment pursuant to this Section 2.6 shall be subject to the provisions
of Section 8.7.
Section 2.7. Prepayment of Interest. Sellers acknowledge and agree that the
Purchase Price attributable to the Company Notes shall be reduced to account for
any interest already paid on such Company Notes (the "Prepaid Interest") that
applies to the period from the Closing Date up to and including the next
interest payment date in respect of the Company Notes (the "Adjustment Period")
in an amount equal to the product of (i) the Prepaid Interest paid on the
Company Notes on or about November 12, 2004 multiplied by (ii) the quotient of
(A) the number of days in the Adjustment Period, divided by (B) the number of
days in the interest period for which such Prepaid Interest was paid.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF SELLERS
Each of the Sellers, severally and not jointly, represents and warrants to
Purchaser that:
Section 3.1. Organization and Qualification of Sellers. Each Seller is duly
organized, validly existing and, if applicable, in good standing under the laws
of the jurisdiction of its formation.
Section 3.2. Authority; Non-Contravention; Approvals.
(a) Each Seller has all requisite authority to execute and deliver
this Agreement and to perform the transactions contemplated by this
Agreement. This Agreement has been duly executed and delivered by each
Seller and, assuming the due authorization, execution and delivery of this
Agreement by Purchaser, constitutes valid and binding obligations of each
Seller, enforceable against such Seller in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
moratorium and similar laws affecting creditor rights generally, public
policy considerations and general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity).
(b) The execution and delivery by each Seller of this Agreement and
the performance by each Seller of its obligations under this Agreement do
not violate any order, writ, injunction, decree, statute, treaty, rule or
regulation applicable to any Seller (but only if such violation would
adversely affect the ability of any Seller to perform its obligations under
this Agreement).
(c) No authorization, consent, order or approval of, any Governmental
Authority (but only if the failure to obtain such authorization, consent,
order or approval would adversely affect the ability of any Seller to
perform its obligations under this Agreement) is required to be obtained or
made in connection with or as a result of the execution and delivery of
this Agreement by any Seller or the performance by any Seller of its
obligations under this Agreement.
Section 3.3. Ownership of Securities. GSSF is the lawful beneficial owner
of the GSSF Shares and the GSSF Preferred Shares and owns such shares free and
clear of all Encumbrances whatsoever, except for any Encumbrances created by
this Agreement and restrictions on transfer under federal and state securities
laws. EMDCD is the lawful beneficial owner of the EMDCD Shares and owns such
shares free and clear of all Encumbrances, except for any Encumbrances created
by this Agreement and restrictions on transfer under federal and state
securities laws. AEEP is the lawful beneficial owner of the AEEP Shares and owns
such shares free and clear of all Encumbrances whatsoever, except for any
Encumbrances created by this Agreement and restrictions on transfer under
federal and state securities laws. EMLIP is the lawful beneficial owner of the
EMLIP Warrants and EMLIP Notes and owns such warrants and notes free and clear
of all Encumbrances whatsoever, except for any Encumbrances created by this
Agreement and restrictions on transfer under federal and state securities laws.
EMDF is the lawful beneficial owner of the EMDF Warrants and EMDF Notes and owns
such warrants and notes free and clear of all Encumbrances whatsoever, except
for any Encumbrances created by this Agreement and restrictions on transfer
under federal and state securities laws. The Custodians (or, in the case of
Barings (Guernsey) Limited, its duly appointed nominee) are the lawful holders
of record of the Securities and have the requisite power and authority to
transfer the Securities. Upon the delivery of the Securities by Sellers to
Purchaser in the manner contemplated under Article II, and the payment by
Purchaser of the Purchase Price to Sellers, Purchaser will acquire the
beneficial and legal title to the Securities, free and clear of all Encumbrances
except for restrictions on transfer under federal and state securities laws or
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Encumbrances created by Purchaser. There are no outstanding options, warrants or
other rights of any kind to acquire from any Seller any of the Securities, or
which otherwise confer on the holder thereof any right to acquire from Seller
any interest therein.
Section 3.4. Acknowledgement. Each Seller has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of a sale of the Securities and of protecting such Seller's interests in
connection with this transaction. Each Seller acknowledges that it has had the
opportunity to ask questions of and receive answers from a representative of the
Company, and that such Seller has obtained from the Company or otherwise such
information or data as such Seller may deem appropriate in order to provide such
Seller with the basis of making an informed investment decision with respect to
the sale of the Securities. Each Seller acknowledges that Purchaser may possess
certain non-public information concerning the Company.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller that:
Section 4.1 Organization and Qualification. Purchaser is duly organized,
validly existing and in good standing under the laws of the jurisdiction of
formation.
Section 4.2. Authority; Non-Contravention; Approvals.
(a) Purchaser has all requisite authority to execute and deliver this
Agreement and to perform the transactions contemplated by this Agreement.
This Agreement has been duly executed and delivered by Purchaser and,
assuming the due authorization, execution and delivery of this Agreement by
each Seller, constitutes valid and binding obligations of Purchaser,
enforceable against Purchaser in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditor
rights generally and general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(b) The execution and delivery by Purchaser of this Agreement and the
performance by Purchaser of its obligations under this Agreement do not
violate any order, writ, injunction, decree, statute, treaty, rule or
regulation applicable to Purchaser (but only if such violation would
adversely affect the ability of Purchaser to consummate the transactions
contemplated by this Agreement).
(c) No authorization, consent, order or approval of, any Governmental
Authority (but only if the failure to obtain such authorization, consent,
order or approval would adversely affect the ability of Purchaser to
perform its obligations under this Agreement) is required to be obtained or
made in connection with or as a result of the execution and delivery of
this Agreement by Purchaser or the performance by Purchaser of its
obligations under this Agreement.
Section 4.3. Investment. Purchaser and each Purchasing Entity, if any, (i)
understands that the Securities have not been and will not be, registered under
the Securities Act or under any state securities laws and are being offered and
sold in reliance upon federal and state exemptions for transactions not
involving any public offering, (ii) is acquiring the Securities solely for its
own account for investment purposes and not with a view to the distribution
thereof in violation of any applicable securities laws, (iii) is a sophisticated
investor with knowledge and experience in business and financial matters, (iv)
has received certain information concerning the Company and has had the
opportunity to
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obtain additional information as desired in order to evaluate the merits and
risks inherent in holding the Securities and (v) is able to bear the economic
risk and lack of liquidity inherent in holding the Securities.
Section 4.4. Sophisticated Buyer. Purchaser and each Purchasing Entity, if
any, (i) is a sophisticated buyer with respect to the purchase of the
Securities, (ii) has adequate information concerning the business and financial
condition of the Company to make an informed decision regarding the purchase of
the Securities, (iii) has independently and without reliance upon Sellers, and
based on such information as Purchaser and each Purchasing Entity, if any, has
deemed appropriate, made its own analysis and decision to enter into this
Agreement, except that Purchaser and each Purchasing Entity, if any, has relied
on the representations and warranties and covenants of Sellers in this
Agreement, (iv) understands that the Securities are restricted securities
(within the meaning of Rule 144 of the Securities Act), have not been registered
under the Securities Act and cannot be resold except pursuant to the
registration requirements under the Securities Act or an exemption from
registration thereunder and (v) acknowledges that the certificates representing
the Securities shall bear a legend noting their restricted nature. Purchaser and
each Purchasing Entity, if any, acknowledges that Sellers have not given
Purchaser or such Purchasing Entity any investment advice, credit information or
opinion on whether the sale of the Securities is prudent.
ARTICLE V
COVENANTS
Section 5.1. Public Announcements. Until the Closing, none of Purchaser nor
any Seller nor any of their respective Affiliates shall issue or cause the
dissemination of any press release or other public announcements or statements
with respect to this Agreement or the transactions contemplated hereby without
the consent of the other party, which consent will not be unreasonably withheld,
except as may be required by law or by any listing agreement with a national
securities exchange or trading market to which such party is subject.
Notwithstanding the foregoing, Purchaser shall not be restricted from issuing a
press release promptly after the Closing announcing the transactions
contemplated by this Agreement or issuing stock exchange announcements to the
Copenhagen Stock Exchange and/or the New York Stock Exchange and its usual
recipients of such stock exchange announcements of the terms of this Agreement
and the transactions contemplated hereby.
Section 5.2. Further Assurances; Post-Closing Cooperation. From time to
time after the Closing, each of the parties hereto will (or, if appropriate,
cause their Affiliates to) execute and deliver such further instruments and take
such other action as may be necessary to make effective the transactions
contemplated by this Agreement at the sole cost and expense of the requesting
party.
Section 5.3. Cooperation on Tax Matters. Sellers and Purchaser shall
cooperate fully, as and to the extent reasonably requested by the other party,
in connection with the preparation and filing of any Tax Return and any audit or
other proceeding with respect to Taxes, provided that any such audit or
proceeding will be controlled by the person responsible for the relevant tax
under applicable law, provided, further, that any such request will not require
any Seller or Purchaser to disclose any confidential information relating to
such Seller's or Purchaser's investment strategies or participation by investors
in the ownership and/or management of any Seller.
Section 5.4. Termination of the Stockholders Agreement. Sellers and
Purchaser agree to take all necessary actions, if any, to terminate the
Stockholders Agreement, dated September 3, 2004, by and among Sellers and
Purchaser at Closing.
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Section 5.5. Transfer of Company Warrants. Sellers and Purchaser shall
procure that each of their nominee directors on the Company's Board of Directors
shall take all action reasonably necessary to cause the Company to consent to
the transfer of the Company Warrants to Purchaser.
Section 5.6. Board of Directors. No later than two Business Days prior to
the Closing, Purchaser shall cause one of its nominee directors to call a
special meeting of the Company's board of directors to be held on the Closing
Date, including providing any notices required by the Company's bylaws.
Concurrently with or promptly after the Closing, Sellers and Purchaser shall
cause each of their nominee directors to take such actions as are reasonably
necessary to cause a majority of the board of directors of the Company to be
constituted with individuals designated by Purchaser in the manner specified by
Purchaser. On or after the Closing Date, when directed by Purchaser, Sellers
shall cause their nominee directors to resign from the Company's board of
directors, subject to such directors being paid all outstanding fees and
expenses due to such directors. After the Closing Date and until Sellers'
nominee directors have resigned in accordance with this Section 5.6, Sellers
shall cause their nominee directors, subject to their fiduciary duties, to vote
in favor of any proposal supported and against any proposal not supported by
Purchaser's nominee directors.
ARTICLE VI
CONDITIONS
Section 6.1. Conditions to Each Party's Obligations. The respective
obligations of each party to effect the Closing are subject to the satisfaction
or waiver at or prior to the Closing of the following conditions:
(a) No statute, rule, regulation, order, decree or injunction shall
have been enacted, entered, promulgated or enforced by a Governmental
Authority that prohibits the consummation of the transactions contemplated
by this Agreement shall be in effect.
Section 6.2. Conditions to Purchaser's Obligations. The obligations of
Purchaser to effect the Closing are further subject to the satisfaction or
waiver at or prior to the Closing of the following conditions:
(a) Each of the representations and warranties made by a Seller in
this Agreement shall be true and correct in all material respects, in each
case as of the date of this Agreement and at and as of the Closing Date as
if made on that date.
(b) Each Seller shall have performed and complied in all material
respects with each agreement, covenant and obligation required by this
Agreement to be so performed or complied with by such Seller at or before
the Closing.
(c) The Company shall have consented to the assignment of the Company
Warrants as required by Section 4.2 of the Company Warrants.
Section 6.3. Conditions to Sellers' Obligations. The obligations of Sellers
to effect the Closing are further subject to the satisfaction or waiver at or
prior to the Closing of the following conditions:
(a) Each of the representations and warranties made by Purchaser in
this Agreement shall be true and correct in all material respects, in each
case as of the date of this Agreement and at and as of the Closing Date as
if made on that date.
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(b) Purchaser shall have performed and complied with, in all material
respects, each agreement, covenant and obligation required by this
Agreement to be so performed or complied with by Purchaser at or before the
Closing.
ARTICLE VII
TERMINATION OF AGREEMENT
Section 7.1. Termination. This Agreement may be terminated, and the
transactions contemplated by this Agreement may be abandoned at any time prior
to the Closing by:
(a) the mutual written agreement of Sellers and Purchaser;
(b) any Seller or Purchaser if any court of competent jurisdiction or
other competent Governmental Authority shall have issued a statute, rule,
regulation, order, decree or injunction or taken any other action
permanently restraining, enjoining or otherwise prohibiting all or any
portion of the transactions contemplated by this Agreement and such
statute, rule, regulation, order, decree or injunction or other action
shall have become final and nonappealable;
(c) any Seller or Purchaser, in the event (i) of a material breach of
this Agreement by the non-terminating party if such non-terminating party
fails to cure such breach within ten Business Days following notification
thereof by the terminating party or (ii) the satisfaction of any condition
to the terminating party's obligations under this Agreement becomes
impossible or impracticable with the use of commercially reasonable efforts
if the failure of such condition to be satisfied is not caused by a breach
of this Agreement by the terminating party or its Affiliates; or
(d) any Seller or Purchaser if the Closing has not occurred on or
before April 30, 2005 or such later date as the parties may mutually agree
upon, unless the failure to consummate the Closing is due to the failure of
the terminating party to fully comply with its obligations under this
Agreement.
Section 7.2. Effect of Termination. If this Agreement is validly terminated
pursuant to Section 7.1, this Agreement will forthwith become null and void, and
have no further effect, without any liability on the part of any party hereto or
its Affiliates, directors, officers or stockholders, other than the provisions
of this Section 7.2 and Article IX hereof. Nothing contained in this Section 7.2
shall relieve any party from liability for any breach of this Agreement
occurring prior to termination.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Notices. All notices, requests and other communications under
this Agreement must be in writing and will be deemed to have been duly given
upon receipt to the parties at the following addresses or facsimiles (or at such
other address or facsimile for a party as shall be specified by the notice):
10
If to Sellers:
As set forth on Schedule 8.1 to this Agreement
With a copy (which shall not constitute notice) to:
Xxxxxxx Investment Management Limited
00 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Xxx Xxxxx
Facsimile: x00 000-000-0000
If to Purchaser:
TDC A/S
Xxxxxxxxxx 00
XX-0000 Xxxxxxxxxx X
Xxxxxxx
Attention: Xxxxxx X. Xxxx
Facsimile: x00 00-00-00-00
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With a copy to:
TDC A/S
Xxxxxxxxxx 00
XX-0000 Xxxxxxxxxx C
Denmark
Attention: Xxxxx Xxxxxxxx
Facsimile: x00 00-00-00-00
With an additional copy (which shall not constitute notice) to:
Xxxxxxxx Chance US LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
U.S.A
Attention: Xxxx X. Xxxxx
Facsimile: (000) 000-0000
Section 8.2. Entire Agreement. This Agreement, the exhibits and schedules
hereto supersede all prior and contemporaneous discussions and agreements, both
written and oral, among the parties with respect to the subject matter of this
Agreement and constitute the sole and entire agreement among the parties to this
Agreement with respect to the subject matter of this Agreement.
Section 8.3. Expenses. Except as otherwise expressly provided in this
Agreement (including as provided in Section 7.2), whether or not the
transactions contemplated by this Agreement are consummated, each party will pay
its own costs and expenses incurred in connection with the negotiation,
execution and closing of this Agreement and the transactions contemplated by
this Agreement.
Section 8.4. Waiver. Any term or condition of this Agreement may be waived
at any time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly executed
by or on behalf of the party waiving such term or condition. No waiver by any
party of any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion. All remedies, either under
this Agreement or by law or otherwise afforded, will be cumulative and not
alternative.
Section 8.5. Amendment. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party to this Agreement.
Section 8.6. No Third-Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights upon any other Person.
Section 8.7. Assignment; Binding Effect. Neither this Agreement nor any
right, interest or obligation under this Agreement may be assigned by any party
to this Agreement by operation of law or otherwise without the prior written
consent of the other party to this Agreement and any attempt to do so will be
void, except that Purchaser may assign any or all of its rights, interests and
obligations under this Agreement (i) before the Closing, to any wholly owned
subsidiary of Purchaser and (ii) after the Closing, to any Person provided that
any such wholly owned subsidiary of Purchaser or Person, as applicable, agrees
in writing to be bound by all of the terms, conditions and provisions contained
in this Agreement, but no such assignment shall relieve Purchaser of its
obligations under this Agreement if such assignee
12
does not perform such obligations. Without limiting the generality of the
foregoing, if requested by Purchaser, Sellers agree to cause the Securities or
any portion thereof at Closing to be transferred to any Person Purchaser may
direct. Subject to the foregoing, this Agreement is binding upon, inures to the
benefit of and is enforceable by the parties to this Agreement and their
respective successors and assigns.
Section 8.8. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH PARTY
HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR ANY COURT OF THE STATE
OF NEW YORK LOCATED IN THE COUNTY OF NEW YORK IN RESPECT OF ANY ACTION, SUIT OR
PROCEEDING ARISING IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY, AND AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL
BE BROUGHT ONLY IN SUCH COURT (AND WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS OR ANY OTHER OBJECTION TO VENUE THEREIN); PROVIDED, HOWEVER, THAT
SUCH CONSENT TO JURISDICTION IS SOLELY FOR THE PURPOSE REFERRED TO IN THIS
SECTION 8.8 AND SHALL NOT BE DEEMED TO BE A GENERAL SUBMISSION TO THE
JURISDICTION OF SAID COURTS OR IN THE STATE OF NEW YORK OTHER THAN FOR SUCH
PURPOSE. Any and all process may be served in any action, suit or proceeding
arising in connection with this Agreement by complying with the provisions of
Section 8.1. Such service of process shall have the same effect as if the party
being served were a resident in the State of New York and had been lawfully
served with such process in such jurisdiction. The parties hereby waive all
claims of error by reason of such service. Nothing herein shall affect the right
of any party to service process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against the other in any other
jurisdiction to enforce judgments or rulings of the aforementioned courts.
Section 8.9. Specific Performance. The parties hereto agree that if any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or equity.
Section 8.10. Invalid Provisions. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under any present or future law,
and if the rights or obligations of any party hereto under this Agreement will
not be materially and adversely affected thereby, (a) such provision will be
fully severable, (b) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(c) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (d) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
13
Section 8.11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
FOR THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 8.12. Counterparts. This Agreement may be executed in any number of
counterparts, all of which will constitute one and the same instrument.
Section 8.13. Sellers' Several Obligations. All representations,
warranties, covenants, liabilities and obligations of Sellers under this
Agreement shall be several and not joint, whether so expressed or not. Failure
by any Seller to perform its obligations under this Agreement will not affect
the obligations of any other Seller under this Agreement. No Seller is
responsible for any other Seller under this Agreement. The rights of each Seller
under or in connection with this Agreement are separate and independent rights.
Any Seller may separately enforce its rights under this Agreement.
Section 8.14. Interpretation. The parties have participated jointly in
negotiating and drafting this Agreement. If an ambiguity or a question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provisions
of this Agreement.
Section 8.15. Execution by the Custodians. Sellers and Purchaser hereby
acknowledge that Barings (Guernsey) Limited and The Northern Trust Company are
respectively executing this Agreement in their respective capacities as
Custodians for:
(a) In the case of Barings (Guernsey) Limited, each of GSSF, AEEP and
EMLIP; and
(b) in case of The Northern Trust Company, each of EMDCD and EMDF,
and are making no independent representations or warranties and shall have no
independent liability under this Agreement.
[Remainder of page intentionally left blank.]
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TDC A/S
By:
-------------------------------------
Name: Henning Dyremose
Title: President and Chief
Executive Officer
By:
-------------------------------------
Name: Xxxx Xxxx Xxxxxxx
Title: Senior Executive Vice President
and Chief Financial Officer
[Signature Page to Securities Purchase Agreement]
XXXXXXX GLOBAL SPECIAL SITUATIONS FUND LIMITED
By: Barings (Guernsey) Limited,
as Custodian
By:
-------------------------------------
Name:
Title:
ASSET HOLDER PCC NO. 2 LIMITED
RE EMERGING ECONOMY PORTFOLIO
By: Barings (Guernsey) Limited, as Custodian
By:
-------------------------------------
Name:
Title:
ASSET HOLDER PCC LIMITED RE: XXXXXXX
EMERGING MARKETS LIQUID INVESTMENT PORTFOLIO
By: Barings (Guernsey) Limited, as Custodian
By:
-------------------------------------
Name:
Title:
XXXXXXX EMERGING MARKETS DEBT FUND
By: The Northern Trust Company, as Custodian
By:
-------------------------------------
Name:
Title:
[Signature Page to Securities Purchase Agreement]
EMDCD LIMITED
By: The Northern Trust Company, as Custodian
By:
-------------------------------------
Name:
Title:
[Signature Page to Securities Purchase Agreement]
