Exhibit 4.6
EXECUTION VERSION
DATED 10 FEBRUARY 2004
(1) EEIF MELVILLE B.V.
(2) MOBIFON HOLDINGS B.V.
- AND -
(3) TELESYSTEM INTERNATIONAL WIRELESS INC
--------------------------------------------------------------------------------
SHARE TRANSFER AGREEMENT
RELATING TO THE TRANSFER OF SHARES IN
MOBIFON S.A.
--------------------------------------------------------------------------------
XXXXXX, XXXX & XXXXXXXX
----------
A MULTINATIONAL PARTNERSHIP OF SOLICITORS
AND REGISTERED FOREIGN LAWYERS
----------
Xxxxxxxxx Xxxxx
0-0 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX
000 0000 0000 000 0000 0000 Fax
Ref: 26449-00004
CONTENTS
CLAUSE SUBJECT MATTER PAGE
1. DEFINITIONS AND INTERPRETATION......................................... 2
2. SHARE TRANSFER......................................................... 10
3. CONDITIONS PRECEDENT................................................... 11
4. COMPLETION............................................................. 11
5. WARRANTIES............................................................. 12
6. TERMINATION............................................................ 13
7. INDEMNIFICATION........................................................ 13
8. COVENANTS.............................................................. 14
9. LIMITATIONS ON LIABILITY............................................... 19
10. NOTICES................................................................ 20
11. GENERAL PROVISIONS..................................................... 22
12. GOVERNING LAW AND DISPUTE RESOLUTION................................... 24
13. EXCLUSION OF CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999.............. 25
SCHEDULE 1...................................................................... 26
Conditions Precedent............................................................ 26
SCHEDULE 2...................................................................... 28
Documents to be executed and/or delivered at Completion......................... 28
SCHEDULE 3...................................................................... 32
Warranties of TIW and MobiFon Holdings.......................................... 32
SCHEDULE 4...................................................................... 40
Warranties of EEIF.............................................................. 40
SCHEDULE 5...................................................................... 42
Details of TIW.................................................................. 42
SCHEDULE 6...................................................................... 43
Disclosure Schedule............................................................. 43
SCHEDULE 7...................................................................... 50
Amended and Restated Investor Rights Agreement.................................. 50
SCHEDULE 8...................................................................... 51
Amended and Restated Registration Rights Agreement.............................. 51
SCHEDULE 9...................................................................... 52
Certificates.................................................................... 52
SCHEDULE 10..................................................................... 60
Options......................................................................... 60
SCHEDULE 11..................................................................... 61
TIW Group Corporate Structure Chart............................................. 61
SCHEDULE 11..................................................................... 62
Dolphin Group Structure Chart................................................... 62
i
SHARE TRANSFER AGREEMENT
DATE: 10 FEBRUARY 2004
PARTIES:
(1) EEIF MELVILLE B.V., a company organised and existing under the Laws of
The Netherlands and having its registered office at Xxxxxxxxx
Xxxxxxxxxxx 0, 0000, XX Xxxxxxxxxx, Xxxxxxxxxxx ("EEIF");
(2) MOBIFON HOLDINGS B.V., a company organised and existing under the Laws
of The Netherlands and having its registered office at World Trade
Center, Xxxxxxxxxxxxxx 000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
("MOBIFON HOLDINGS"); and
(3) TELESYSTEM INTERNATIONAL WIRELESS INC., constituted under the Laws of
Canada, having its registered office at 0000 Xxxx-Xxxxxxxx Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxx, Xxxxxx, X0X 0X0 ("TIW").
RECITAL:
(A) EEIF is the beneficial owner of 11,135,555 common shares with a nominal
value of ROL 3,750 each (the "MOBIFON SHARES") in the share capital of
MobiFon S.A., a joint stock company incorporated under the laws of
Romania and having its headquarters at Str. Xxxxx Xxxxxx 3, Complex
MIOI, Xxxxxx 0, 00000, Xxxxxxxxx, Xxxxxxx ("MOBIFON").
(B) EEIF wishes to transfer the MobiFon Shares to MobiFon Holdings, and TIW
wishes to issue common shares in its share capital as consideration for
the MobiFon Shares to be acquired by MobiFon Holdings, a Subsidiary of
TIW, the whole subject to the ROFR Rights (as defined below) and upon
the terms and conditions set forth below (the "MOBIFON SHARE
TRANSFER").
(C) EEIF's ultimate shareholders, AIG Emerging Europe Infrastructure Fund
L.P. ("EEIF LP") and Emerging Europe Infrastructure Fund C.V. ("EEIF
CV"), are also currently shareholders (in the case of EEIF LP, by way
of a Subsidiary, EEIF Czech N.V., a limited liability company
incorporated under the laws of the Netherlands Antilles ("EEIF CZECH"))
of a further Subsidiary of TIW, TIW Czech N.V., a public limited
liability company incorporated under the laws of the Netherlands and
having its registered office at Rotterdam, the Netherlands, ("TIW
CZECH").
(D) As a consequence of the MobiFon Share Transfer, EEIF Czech and EEIF CV
wish to sell certain of their shares in TIW Czech to TIW for cash,
which cash EEIF Czech and EEIF CV (or an Affiliate of those entities)
will use to subscribe for common shares of TIW (the "TIW CZECH SHARE
TRANSFER"), which transactions shall be governed by a separate
agreement to be entered into simultaneously with this Agreement.
(E) The parties acknowledge that the proposed transfer of the MobiFon
Shares under this Agreement is subject to rights of first refusal of
the other shareholders of MobiFon under the Contract of Association
("ROFR RIGHTS") and the sending of a notice of the proposed share
exchange together with a signed copy of this Agreement to the other
shareholders of MobiFon will constitute valid notice under section 4.5
of the Contract of Association.
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions have the
following meanings:
Term Definition
"ACCOUNTS" TIW's audited accounts for the year
ended 31 December 2002;
"ACCOUNTS DATE" 31 December 2002;
"AFFILIATE" in relation to a specified person, any
person that, directly or indirectly,
through one or more intermediaries, (a)
owns or Controls the specified person,
(b) is owned or Controlled by the
specified person, or (c) is under common
ownership or Control with the specified
person, and in the case of a specified
person that is an individual, will
include such individual's natural
children, current spouse and/or natural
parents, including any trust established
for the benefit of such individual's
natural children, current spouse and/or
natural parents, where "own" means
ownership of more than 50 per cent of
the voting interests or rights of the
specified person;
"AGREEMENT" this Share Transfer Agreement;
"BUSINESS DAY" shall be construed as a reference
to a day (other than a Saturday or
Sunday) on which banks and financial
markets are open in Romania, the
Netherlands and the Province of Quebec,
Canada, for the transaction of ordinary
business;
"CASH OPTION" as defined in Clause 8.9;
"CASH OPTION OFFER" as defined in Clause 8.9;
2
"CESKY" Cesky Mobil a.s., a joint stock company,
identification number 25788001, with its
seat at Xxxxxxxxxxx 000, Xxxxxx 00, XXX
000 00, Xxxxx Xxxxxxxx;
"CVMQ" the Commission des valeurs mobilieres du
Quebec;
"COMPLETION" the completion of the MobiFon Share
Transfer pursuant to Clause 2 or Clause
8.5 of this Agreement, which shall take
place on the Completion Date by the
performance by the parties of their
respective obligations under Clause 4;
"COMPLETION DATE" As soon as practicable after the date
(being a date not later than the
Termination Date) on which the last of
(a) the conditions referred to in
Schedule 1, Part A have been fulfilled
(or waived by EEIF under Clause 3.3) and
(b) the conditions referred to in
Schedule 1, Part B have been fulfilled
(or waived by the Purchasers under
Clause 3.4) and in any event, no later
than 10.00 am on the fifth Business Day
after such date or such other time and
date as the parties may agree, provided
that, in any event, the Completion Date
shall be no earlier than the earliest
date permitted by the Contract of
Association, unless all MobiFon
shareholders have, to the satisfaction
of all parties, unconditionally and
irrevocably waived all of their rights
pursuant to the right of first refusal
procedure contained in the Contract of
Association in relation to the MobiFon
Share Transfer;
"CONDITIONS" the conditions precedent referred to in
Clauses 3.1 and 3.2;
"CONTRACT OF ASSOCIATION" the contract of association of MobiFon
as amended from time to time;
"CONTROL" the possession, directly or indirectly,
or as trustee or executor, of the power
to direct or cause the direction of the
general management and policies of a
person, whether through ownership of
voting securities, as trustee or
executor, by contract or credit
arrangements or otherwise and
"controlled" shall be construed
accordingly;
3
"DEED OF UNDERTAKING" the Deed of Undertaking dated 19 March
2003 by and among TIW, Telesystem
International Wireless Corporation N.V.,
ClearWave N.V., ClearWave Holdings B.V.
and EEIF;
"DIVIDEND PAYMENT" as defined in Clause 8.4.1;
"DOLPHIN GROUP" the Subsidiaries of TIWC Europe B.V.;
"EEIF CZECH" as defined in Recital (C);
"EEIF CV" as defined in Recital (C);
"EEIF LP" as defined in recital (C);
"EEIF-MOBIFON DIVIDEND" as defined in Clause 8.4.1;
"ENCUMBRANCE" (a) a mortgage, charge, pledge, lien,
hypothecation, assignment or deposit by
way of security or other encumbrance of
any kind whatsoever securing any
obligation of any person, (b) any
restriction, right of first refusal or
pre-emption, third party right or
interest, other encumbrance or type of
preferential arrangement (including
conditional sale, title transfer and
retention arrangements) having a similar
effect;
"EQUITY AGREEMENT" the letter agreement dated 27 June 2003
by and among TIW, Telesystem
International Wireless Corporation N.V.,
ClearWave N.V., Xxxxxxx Xxxxx & Co., and
Lazard Freres & Co. LLC;
"EXCHANGE RATIO" as defined in Clause 2.2;
"EXCHANGING SHAREHOLDER" as defined in Clause 8.3;
"EX-DIVIDEND AMOUNT" as defined in Clause 8.4.1;
"EXIT DEED" the Exit Deed dated 19 March 2003 by and
among TIW, Telesystem International
Wireless Corporation N.V., ClearWave
N.V., ClearWave Holdings B.V. and EEIF;
"FINANCIAL CONDITION" the assets, liabilities (including,
without limitation, contingent
liabilities), business, properties,
operations, financial condition or
financial results of the relevant
entity;
4
"GAAP" generally accepted accounting
principles;
"GOVERNMENTAL AUTHORITY" the government of any nation, state,
city, locality or other political
subdivision thereof, any entity
exercising executive, legislative,
judicial, regulatory or administrative
functions and any corporation or other
entity owned or controlled, through
stock or capital ownership or otherwise,
by any of the foregoing including, but
not limited to, competition and
licensing authorities in Romania or
elsewhere;
"INDEMNITY WARRANTIES" in respect of TIW, the Warranties given
by TIW in paragraphs 1, 2, 3, 4, 7, 15,
18, 30, 37 and 41, of Part A of Schedule
3, in respect of MobiFon Holdings, the
Warranties given by MobiFon Holdings in
paragraphs 1, 2, 3 and 5 of Part B of
Schedule 3, and, in respect of EEIF, the
Warranties given by EEIF in paragraphs
1, 2, 3 and 4 of Schedule 4;
"INDENTURE" the indenture dated 27 June 2003 by and
between MobiFon Holdings B.V., as
issuer, and the Bank of Nova Scotia
Trust Company of New York, as trustee;
"INVESTOR RIGHTS AGREEMENT" the Amended and Restated Investor Rights
Agreement dated 24 January 2002, as
amended on 25 September 2003, between
TIW and the Investors (as defined
therein);
"LAW" in relation to any person, any law,
statute, ordinance, treaty, rule or
regulation, and any judgement, decision,
award, order, decree, administrative
guidance, licence, permit,
authorisation, franchise or
determination of an arbitrator or a
court or other Governmental Authority,
in each case applicable to, or binding
upon, such person or any of its property
or to which such person or any of its
property is subject or pertaining to any
or all of the transactions contemplated
or referred to herein;
"LOAN AGREEMENTS" the loan facility agreements entered
into between MobiFon and the Senior
Lenders, all dated 27 August 2002, and
the working capital facility agreements
entered into between MobiFon and ABN
AMRO Bank (Romania) S.A., dated 19
5
February 1999, and MobiFon and Citibank,
dated 25 March 1999;
"LOCK-UP SHARES" as defined in Clause 8.10;
"MAJOR SHAREHOLDERS" Telesystem Ltd., U.F. Investments
(Barbados) Ltd. and X.X. Xxxxxx Partners
(BHCA), L.P., and their respective
Subsidiaries and Affiliates;
"MANAGEMENT ACCOUNTS" TIW's unaudited profit and loss account
for the period ending September 30,
2003;
"MATERIAL ADVERSE CHANGE" means, with respect to TIW, any event,
circumstance, condition, fact, effect or
other matter which has the effect of
preventing in a material and adverse way
TIW from performing and complying with
any of its obligations under this
Agreement and the TIW Czech Share
Transfer, or which is reasonably likely
to result in a Material Adverse Effect
and means, with respect to EEIF and
MobiFon Holding, any event,
circumstance, condition, fact, effect or
other matter which has the effect of
preventing in a material and adverse way
EEIF or MobiFon Holdings from performing
and complying with any of their
respective obligations under this
Agreement;
"MATERIAL ADVERSE EFFECT" any effect that, individually or in the
aggregate with other effects is, or is
reasonably likely to be, materially
adverse to the Financial Condition of
TIW;
"MOBIFON" as defined in recital (A);
"MOBIFON SHARES" as defined in Recital (A);
"MOBIFON SHARE TRANSFER" as defined in recital (B);
"NASDAQ" Nasdaq SmallCap Market or Nasdaq
National Market, as the case may be;
"OFFERING" as defined in Clause 8.9;
"PREMIUM ACQUISITION" as defined in Clause 8.3.1;
"PREMIUM EXCHANGE RATIO" as defined in Clause 8.3.1;
6
"PURCHASERS" means TIW and MobiFon Holdings;
"QUEBEC ACT" as defined in Schedule 1, Part A;
"QUEBEC REGULATION" as defined in Schedule 1, Part A;
"REGISTRATION RIGHTS AGREEMENT" the Amended and Restated Registration
Rights Agreement dated 14 December
2001 between TIW and the Holders (as
defined therein);
"RIGHTS OFFERING" as defined in Clause 8.2.3;
"ROFR RIGHTS" as defined in Recital (E);
"ROFR PROCEDURE" as defined in Schedule 1 Part A;
"ROL" denotes the lawful currency from time
to time of Romania;
"SHARES" as defined in Clause 8.3
"SHARE TRANSFER DOCUMENTS" as defined in Clause 11.2.1;
"SECURITIES LAWS" collectively, the Securities Acts of
the Provinces of Quebec and Ontario
and the rules and regulations made
thereunder, together with applicable
published policy statements and orders
of the securities commission or
similar authority in each of the
Provinces of Ontario and Quebec and
the by-laws, rules and regulations of
the TSX and Nasdaq, the 1934 Act and
the 1933 Act;
"SENIOR LENDERS" European Bank for Reconstruction and
Development, Nordic Investment Bank
and Export Development Canada;
"SENIOR MANAGEMENT" each of Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxx
and Xxxxxxxx Xxxxxx;
"STATUTES" the statutes of MobiFon as amended
from time to time;
"SUBSIDIARY" means, (i) with respect to any
specified person:
any corporation, association or other
business entity of which (a) more than
50% of the voting power of the
outstanding voting stock is owned,
directly or indirectly, by such person
and one or more other Subsidiaries of
such person or (b) such person and one
or more other
7
Subsidiaries of such person has the
right to appoint or remove a majority of
the members of its board of directors
or, in the case of an entity having a
two-level board, its supervisory board;
and
(ii) with respect to any partnership,
(a) the sole general partner or the
managing general partner of which is
such person or a Subsidiary of such
person or (b) the only general partners
of which are that person or one or more
Subsidiaries of that person (or any
combination thereof);
"TAXES" all forms of taxation whether direct or
indirect and whether levied by reference
to income, profits, gains, net wealth,
asset values, turnover, added value or
other reference and statutory,
governmental, state, provincial, local
governmental or municipal impositions,
duties, contributions, rates and levies
(including without limitation social
security contributions and any other
payroll taxes), whenever and wherever
imposed (whether imposed by way of a
withholding or a deduction for or on
account of tax or otherwise) and in
respect of any person and all penalties,
charges, costs and interest relating
thereto;
"TERMINATION DATE" 30 June 2004, or such later date as the
parties may agree;
"TIW CZECH" as defined in Recital (C);
"TIW CZECH SHARE
SALE AND PURCHASE AGREEMENT" the agreement entered into among TIW,
ClearWave N.V., Emerging Europe
Infrastructure Fund C.V. and EEIF Czech
N.V. on the date of this Agreement and
pertaining to the sale and purchase of
TIW Czech Shares (as defined therein)
and the subscription of TIW Shares (as
defined therein);
"TIW CZECH SHARE TRANSFER" as defined in Recital (D);
"TIW GROUP" TIW and its Subsidiaries, excluding the
Dolphin Group;
"TIW GROUP PUBLIC RECORDS" as defined in paragraph 39 of Schedule 3
Part A;
8
"TIW SHARES" as defined in Clause 2.2;
"TIW SECURITIES" as defined in Clause 8.2.3;
"TRANSFER NOTICE" as defined in Schedule 1 Part A;
"TSX" as defined in Schedule 1 Part A;
"USD" denotes the lawful currency from time to
time of the United States of America;
"VOTING AGREEMENT" the Voting Agreement dated 19 March 2003
between ClearWave Holdings B.V. and
EEIF;
"WARRANTIES" the warranties set out in Schedules 3
and 4;
"1933 ACT" as defined in Clause 8.6.; and
"1934 ACT" as defined in Clause 8.6.
1.2 Interpretation
Any reference in this Agreement to:
1.2.1 a "DAY" shall mean a calendar day;
1.2.2 a "PARTY" or "PARTIES" shall, unless the context otherwise
requires, be construed as a reference to a party or the
parties (as the case may be) to this Agreement;
1.2.3 a "PERSON" shall be construed as a reference to any
individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture,
company, Governmental Authority or other entity of any kind,
and shall include any successor(by merger or otherwise) of
such entity; and
1.2.4 a document expressed to be in the "AGREED FORM" means a
document in a form which has been agreed by the parties on or
before execution of this Agreement and signed or initialled by
them or on their behalf, for the purposes of identification.
1.3 Statutes
Any references in this Agreement to statutory provisions shall be
construed as references to those provisions as modified, amended or
re-enacted from time to time.
1.4 Headings
The Clause and Schedule headings are inserted for convenience of
reference only and shall not affect the construction of this Agreement.
9
1.5 Documents
Any reference in this Agreement to all or any documents or agreements
shall be construed as a reference to those documents or agreements as
the same may have been, or may be from time to time, amended, varied,
supplemented, restated, novated or replaced in accordance with their
respective terms and the terms of this Agreement.
1.6 Clauses and Schedules
Unless the context otherwise requires, references to Recitals, Clauses
and Schedules are references to recitals, clauses hereof and schedules
hereto, and references to this Agreement include the Schedules.
1.7 Gender and Plurals
Any reference to the masculine, feminine or neuter gender respectively
includes the other genders and any reference to the singular includes
the plural (and vice versa).
1.8 Time
Any reference to a time of day is a reference to London time.
1.9 References - General
1.9.1 References to any English legal term for any action, remedy,
method of judicial proceeding, legal document, legal status,
court, official or any legal concept or thing shall in respect
of any jurisdiction other than England be deemed to include
what most nearly approximates in that jurisdiction to the
English legal term
1.9.2 The words "HEREOF", "HEREIN", "HEREUNDER" and words of similar
import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of
this Agreement.
2. SHARE TRANSFER
2.1 Subject to the ROFR Rights and the provisions of Clauses 2.2 and 8.5,
on and with effect from Completion, EEIF hereby agrees to transfer the
MobiFon Shares to MobiFon Holdings.
2.2 For each MobiFon Share transferred by EEIF to MobiFon Holdings, TIW
shall issue to EEIF 1.164838 common shares of its share capital (the
"EXCHANGE RATIO"), for, subject to the ROFR Rights and the provisions
of Clause 8.5, an aggregate number of 12,971,119 common shares (the
"TIW SHARES"), which, together with the Dividend Payment (as may be
adjusted pursuant to Clause 8.4) and the payment under Clause 8.4.2 (as
the case may be), represent the total consideration to be paid by, or
on behalf of, MobiFon Holdings for the MobiFon Shares. If the ROFR
Rights are exercised as a consequence of which less than 12,971,119 TIW
Shares are issued to EEIF, the aggregate number of TIW Shares to
10
be issued, based on the Exchange Ratio, shall be rounded-up to the
nearest whole TIW Share.
3. CONDITIONS PRECEDENT
3.1 The obligation of EEIF to transfer, subject to the provisions of Clause
8.5, the MobiFon Shares to MobiFon Holdings under Clause 2 is
conditional on the satisfaction of the Conditions set out in Schedule 1
Part A on or before the Termination Date and the issue by TIW on
Completion of the TIW Shares to EEIF under Clause 2.
3.2 The obligation of TIW to issue the TIW Shares to EEIF under Clause 2 is
conditional on the satisfaction of the Conditions set out in Schedule 1
Part B on or before the Termination Date and the delivery by EEIF on
Completion of, subject to the provisions of Clause 8.5, the MobiFon
Shares to MobiFon Holdings under Clause 2.
3.3 The satisfaction of any Conditions set out in Schedule 1 Part A may be
waived (with or without conditions) by EEIF by written notice to that
effect to the Purchasers.
3.4 The satisfaction of any Conditions set out in Schedule 1 Part B may be
waived (with or without conditions) by the Purchasers by written notice
to that effect to EEIF.
3.5 The parties shall use their best efforts to ensure that the Conditions
are satisfied as soon as possible after the date of this Agreement, and
in any event by no later than the Termination Date. For the avoidance
of doubt, neither EEIF nor the Purchasers shall have any obligation
whatsoever to use best efforts to procure that the shareholders in
MobiFon either waive or not exercise their ROFR Rights.
3.6 Should any party become aware of anything which will or may prevent any
of the Conditions from being satisfied it shall forthwith disclose the
same to the other parties.
4. COMPLETION
4.1 Completion shall take place at the offices of MobiFon at City Business
Centre, 3 Xxxxx Xxxxxx Street, Complex M101, Xxxxxx 0, 00000,
Xxxxxxxxx, Xxxxxxx on the Completion Date or at such other place as
shall be mutually agreed between the parties when all (but not some
only) of the events described in this Clause 4 shall occur.
4.2 At Completion, EEIF shall deliver to TIW, or MobiFon Holdings, as the
case may be, those documents and take those actions as set out in
Schedule 2 Part B and shall transfer the MobiFon Shares to MobiFon
Holdings with full title guarantee, free from any Encumbrances other
than those created under the Loan Agreements, the Contract of
Association or the Statutes and, together with all rights now or
hereafter attaching or accruing thereto, including all rights to any
dividend or other distribution declared, made or paid after the date of
this Agreement.
4.3 At Completion, the Purchasers shall deliver to EEIF those documents and
take those actions as set out in Schedule 2 Part A and TIW shall allot
and issue the TIW Shares to EEIF as validly allotted and issued fully
paid and non-assessable common shares of TIW,
11
with full title guarantee, free from any Encumbrances, together with
all rights now or hereafter attaching or accruing thereto, including
all rights to any dividend or other distribution declared, made or paid
after the date of this Agreement.
5. WARRANTIES
5.1 TIW makes the Warranties set out in Schedule 3 Part A, subject to the
disclosures set forth in Schedule 6, to and for the benefit of EEIF and
its successors in title as of the date hereof and as of the Completion
Date. TIW and MobiFon Holdings, jointly and severally, make the
Warranties set out in Schedule 3 Part B, to and for the benefit of EEIF
and its successors in title as of the date hereof and as of the
Completion Date. The Warranties made by TIW and MobiFon Holdings as of
the Completion Date shall be made subject to any further disclosures to
EEIF on or before Completion in a form and substance satisfactory to
EEIF. For the avoidance of doubt, any such further disclosures made to
EEIF which are not in a form and substance satisfactory to EEIF shall
entitle EEIF to elect not to proceed to Completion. For the purposes of
repeating the Warranties as of the Completion Date, an express or
implied reference in a Warranty to the "date of this Agreement" is to
be construed as a reference to the Completion Date.
5.2 EEIF makes the Warranties set out in Schedule 4 to and for the benefit
of the Purchasers and their successors in title as of the date hereof
and as of the Completion Date. The Warranties made by EEIF as of the
Completion Date shall be made subject to any further disclosures made
to the Purchasers on or before Completion in a form and substance
satisfactory to the Purchasers. For the avoidance of doubt, any such
further disclosures made to the Purchasers which are not in a form and
substance satisfactory to the Purchasers shall entitle the Purchasers
to elect not to proceed to Completion. For the purposes of repeating
the Warranties as of the Completion Date, an express or implied
reference in a Warranty to the "date of this Agreement" is to be
construed as a reference to the Completion Date.
5.3 The parties are aware and acknowledge that they have entered into this
Agreement in reliance on the Warranties given by each relevant party to
the other which have induced it to enter into this Agreement.
5.4 The rights and remedies of a party in respect of any breach of the
Warranties by the other party shall not be affected by any information
of which such non-breaching party has knowledge (however acquired and
whether actual, imputed or constructive) relating to the other party or
the transactions contemplated in this Agreement, and shall survive
Completion and shall not in any respect be extinguished or affected in
any way by Completion. Each of TIW, MobiFon Holdings and EEIF
acknowledges that, at the date hereof, it does not have knowledge of,
nor has it been informed in writing by its advisors that such advisors
are aware of, any breach or potential breach of Warranty and such
acknowledgement shall be deemed repeated by each party as of the
Completion Date.
5.5 Each of the Warranties set out in each paragraph of Schedule 3 and
Schedule 4 are separate and independent and unless otherwise expressly
provided shall not be limited by reference to any other Warranty or
anything in this Agreement.
12
5.6 If in respect of, or in connection with, any breach of any of the
Warranties any sum payable by way of compensation is subject to Taxes
(which definition shall, for the purpose of this Clause 5.6 only, not
include tax on net income), then any such further amount shall be paid
so as to secure that the net amount received is equal to the amount of
compensation due to it in respect of such breach, less any sums
recovered under insurance policies held by the party not in breach.
6. TERMINATION
6.1 If, on or before the Completion Date, either the Purchasers or EEIF
consider that the other is in breach of a Warranty or another provision
of this Agreement, the effect of which is to give rise to a Material
Adverse Change, the non-breaching party may by written notice to the
other parties hereto elect to proceed to Completion or terminate this
Agreement.
6.2 If Completion does not occur on or before the Termination Date this
Agreement shall terminate.
6.3 If either the Purchasers or EEIF terminate this Agreement pursuant to
Clause 6.1 or this Agreement terminates automatically by virtue of
Clause 6.2, each party's further rights and obligations cease
immediately on termination, provided however, that (i) termination does
not affect a party's accrued rights and obligations at the date of
termination and that Clauses 10 (Notices), 11.2 (Entire Agreement), 12
(Governing Law and Dispute Resolution) and 13 (Exclusion of Contract
(Rights of Third Parties) Act 1999) shall survive beyond such
termination.
6.4 Except as set out in this Clause 6, no party may terminate or rescind
this Agreement, either before or after Completion.
7. INDEMNIFICATION
Without diminishing the obligations of any party to mitigate any loss,
in the event that any of the Indemnity Warranties are breached by the
Purchasers or EEIF (the "BREACHING PARTY") respectively, the Breaching
Party agrees to indemnify the other party (the "NON-BREACHING PARTY")
from and against:
(a) the entirety of any losses, excluding any
consequential losses, which the Non-Breaching Party
actually suffers and which result from, arise out of,
relate to or are caused by the breach of an Indemnity
Warranty; and
(b) all direct costs which the Non-Breaching Party may
incur whether before or after the start of an action
in connection with (i) the settlement of a claim
against the Breaching Party in respect of a breach or
an alleged breach of an Indemnity Warranty or the
enforcement of a settlement; and (ii) legal
proceedings against the Breaching Party in respect of
a breach or an alleged breach of an Indemnity
Warranty in which judgement is given for the
Non-Breaching Party or the enforcement of the
judgement.
13
8. COVENANTS
8.1 PRE-COMPLETION COVENANTS
8.1.1 Between the date hereof and the Completion Date, each party
hereto covenants and agrees that it shall promptly notify the
other parties of the occurrence, or non-occurrence of any
event, which would be likely to cause any Conditions to be
satisfied by it not to be satisfied;
8.1.2 EEIF hereby covenants and agrees that it will send the
Transfer Notice to all MobiFon shareholders as soon as
practicable after the date hereof and in any event, no later
than the third Business Day thereafter.
8.2 BUSINESS OF TIW
TIW covenants and agrees:
8.2.1 to, between the date hereof and Completion, use its best
efforts to ensure that no dividends are declared or paid or
share repurchases commenced or carried out or any other
distributions are declared or made by TIW;
8.2.2 to, between the date hereof and Completion, not amend its
governing instruments;
8.2.3 to, between the date hereof and Completion, conduct its
business in the ordinary and usual course and so as to
maintain the same as a going concern and, in particular, TIW
covenants and agrees not to issue, pursuant to a rights
offering or similar transactions (a "RIGHTS OFFERING") offered
to all its then existing shareholders, any common shares of
TIW or securities convertible into common shares of TIW (the
"TIW SECURITIES") at a discount of more than 10% to the then
market price of the TIW's common shares on the TSX or Nasdaq,
whichever is the lower, at the time the transaction is
publicly announced, unless TIW has offered EEIF the right to
acquire that number of TIW Securities needed by EEIF to
maintain the same proportionate equity interest in TIW it will
have after completion of the MobiFon Share Transfer and TIW
Czech Share Transfer, under the same terms and conditions as
the Rights Offering.
8.2.4 to, from the date hereof, ensure that, except as otherwise
expressly permitted under the US Foreign Corrupt Practices Act
1977 as amended, no money or any other thing of value is
offered, promised or given, directly or indirectly, by any
member of the TIW Group to:
(a) any governmental official;
(b) any political party or official thereof;
(c) any candidate for political office; or
14
(d) any other person, while knowing or having reason to
know that all or a portion of such money or thing of
value will be offered, promised or given, directly or
indirectly, to any of those listed in items (a)
through (c) above;
in each case, for the purpose of influencing any action,
omission or decision by the recipient in order to either
obtain or retain business or to direct business to another;
8.2.5 to, from the date hereof, ensure that every member of the TIW
Group will operate its business in compliance or accordance
with (i) applicable environmental, health and safety
requirements in effect from time to time in the country or
countries where such business is undertaken and (ii) the World
Bank Group's applicable environmental, health and safety
guidelines;
8.3 MOST FAVOURED NATION TREATMENT
If, at any time on or before December 31, 2004, TIW directly or
indirectly acquires ordinary shares in the share capital of MobiFon or
other securities of MobiFon derived from those ordinary shares (the
"SHARES") from another holder of Shares (other than Vodafone or any
shareholder that holds less than 1% of the outstanding MobiFon Shares)
(the "EXCHANGING SHAREHOLDER") in one or a series of related
transactions in circumstances where:
8.3.1 (i) in the case where the Shares are acquired by TIW in
exchange for common shares of TIW and the exchange ratio is
more favourable to the Exchanging Shareholder than the
Exchange Ratio (as adjusted to reflect any stock-split,
consolidation or similar events affecting the share capital of
TIW or MobiFon); or (ii) the Shares are acquired for cash, or
a combination of common shares of TIW and cash, the value of
the consideration received for the Shares, if translated into
a number of common shares of TIW using the volume weighted
average trading price of TIW's common shares on the TSX during
the 15 trading days ended on the third trading day prior to
the completion of such transaction (or on Nasdaq, whichever
organised market has the greater volume of trades of TIW's
common shares during such period), would result in an exchange
ratio for the Shares more favourable to the Exchanging
Shareholder than the Exchange Ratio (as adjusted to reflect
any stock-split, consolidation or similar events affecting the
share capital of TIW or MobiFon) (each such transaction
hereinafter referred to as a "PREMIUM ACQUISITION" and the
effective exchange ratio of common shares of TIW per Share in
each such Premium Acquisition hereinafter referred to as a
"PREMIUM EXCHANGE RATIO"), then TIW shall (a) immediately
notify EEIF of such Premium Acquisition and the terms of the
Premium Acquisition (including the Premium Exchange Ratio) and
shall, as soon as practicable thereafter, provide EEIF with
any documentation evidencing the Premium Acquisition; and (b)
within 30 days of TIW completing the Premium Acquisition, TIW
shall deliver to EEIF an additional number of common shares of
TIW equal to the product of (i) the number of MobiFon Shares
transferred to MobiFon Holdings pursuant to this
15
Agreement, and, (ii) the positive difference, if any, between:
(A) the Premium Exchange Ratio; and (B) the Exchange Ratio;
8.3.2 the Exchanging Shareholder is granted (i) less restrictive
lock-up obligations on common shares of TIW it receives in
exchange for its Shares than those imposed upon EEIF pursuant
to this Agreement, (ii) more favourable listing and
registration rights for the common shares of TIW it receives
in exchange for its Shares than those granted to EEIF by way
of adhering to the Registration Rights Agreement (as amended)
or (iii) more favourable governance and co-sale rights than
those granted to EEIF by way of adhering to the Investor
Rights Agreement (as amended), then TIW shall (a) immediately
notify EEIF of such more favourable terms and shall, as soon
as practicable thereafter, provide EEIF with any documentation
evidencing such terms, and (b) within 30 days of TIW
completing the more favourable transaction, TIW shall ensure
that EEIF is afforded the same rights as those afforded to the
Exchanging Shareholder, provided however that the Exchanging
Shareholder will not be deemed to have been granted more
favourable rights or treatment than EEIF under 8.3.2 (i), (ii)
or (iii) only by reason of having received cash in partial or
total consideration for its Shares.
8.3.3 there shall occur: (i) a reclassification of the common shares
of TIW, (ii) an exchange of the common shares of TIW into
other shares or other securities of TIW or another entity, or
(iii) a consolidation, amalgamation or merger of TIW with or
into another entity (each a "REORGANIZATION EVENT"), then, in
the event EEIF becomes entitled to receive common shares of
TIW under Clause 8.3.1, EEIF shall instead be entitled to
receive and shall accept, in lieu of common shares of TIW,
such other securities which EEIF would have been entitled to
receive as a result of such Reorganization Event had EEIF been
a holder of common shares of TIW at the time of such
Reorganization Event. For the avoidance of doubt, in
calculating the number of securities EEIF is entitled to
receive upon a Premium Acquisition in the context of a
Reorganization Event, the method applied for TIW's common
shares under Clause 8.3.1(ii) shall be used mutatis mutandis.
8.4 EEIF-MOBIFON DIVIDEND
8.4.1 Subject to Clauses 8.4.2 and 8.4.3, TIW and MobiFon Holdings,
jointly covenant and agree to pay EEIF the amount of any
dividends declared and paid in 2004 on the MobiFon Shares to
MobiFon Holdings, up to an aggregate maximum amount of USD
5,200,000 (the "EX-DIVIDEND AMOUNT"), less the amount
representing the dividends declared and paid in 2004 on the
MobiFon Shares and subsequently paid to EEIF as a MobiFon
shareholder of record (the "EEIF-MOBIFON DIVIDEND") (such
payment being the "DIVIDEND PAYMENT"). The Dividend Payment
shall be made in cash by electronic funds transfer to such
bank account as specified by EEIF no later than 30 days
following receipt by MobiFon Holdings of any such dividend.
16
8.4.2 Subject to Clause 8.4.3, TIW and MobiFon Holdings hereby
further covenant and agree that in the event that, by the end
of 2004, the sum of the EEIF-MobiFon Dividend and the Dividend
Payment is less than the Ex-Dividend Amount, then MobiFon
Holdings, or such other entity as MobiFon Holdings may direct
(provided, however that such other entity must be (i)
Subsidiary of TIW and (ii) duly formed and validly existing
under the laws of The Netherlands), shall deliver to EEIF the
difference by electronic funds transfer to such bank account
as specified by EEIF on or prior to January 15, 2005.
8.4.3 In the event that the ROFR Rights are exercised as a
consequence of which MobiFon Holdings acquires less than all
of the MobiFon Shares, the Ex-Dividend Amount shall be reduced
by the same proportion that the number of MobiFon Shares
acquired pursuant to the ROFR Procedure by shareholders of
MobiFon other than MobiFon Holdings represent over 11,135,555.
8.4.4 In the event that the EEIF-MobiFon Dividend exceeds the
Ex-Dividend Amount, EEIF hereby covenants and agrees to pay
the difference to MobiFon Holdings in cash by electronic funds
transfer to such bank account as specified by MobiFon Holdings
no later than 30 days following receipt by EEIF of any such
amount of dividend exceeding the Ex-Dividend Amount.
8.5 ROFR EXERCISE.
8.5.1 In the event that (a) the ROFR Rights are exercised by any
shareholder of MobiFon or (b) all shareholders, other than
MobiFon Holdings, have not waived their ROFR Rights on the
last Business Day prior to the expiration of such ROFR Rights:
(i) MobiFon Holdings hereby covenants and agrees to exercise
its ROFR Rights, conditional on the exercise of ROFR Rights by
any other MobiFon shareholders, and purchase the maximum
number of MobiFon Shares it is allowed to purchase thereunder;
(ii) TIW and MobiFon Holdings hereby covenant and agree that
the total consideration for such MobiFon Shares shall be fully
and completely satisfied by (x) the issue by TIW of TIW Shares
to EEIF on the basis of the Exchange Ratio (such issue of TIW
Shares being, unless EEIF agrees otherwise, the only
acceptable form of consideration for the transfer of the
MobiFon Shares apart from the payments described in (y) below)
and (y) subject to Clause 8.4.3, the Dividend Payment and the
payment under Clause 8.4.2; and (iii) EEIF covenants and
agrees to transfer the relevant number of MobiFon Shares to
MobiFon Holdings and accept in payment the consideration
described in (ii) above; provided however that all terms and
conditions of this Agreement apply mutatis mutandis to the
transactions resulting from the exercise of ROFR Rights by
MobiFon Holdings.
8.5.2 Consideration for the transfer of MobiFon Shares to MobiFon
Holdings upon exercise of its ROFR Rights shall be as
described in 8.5.1(ii) above, regardless of whether the "Fair
Market Value" of the MobiFon Shares is determined pursuant to
the Contract of Association, and regardless of whether such
Fair Market Value is higher or lower than the cash equivalent
of the consideration described in
17
8.5.1(ii) above. EEIF agrees that it will accept as
consideration for the transfer of MobiFon Shares to any
shareholder (other than MobiFon Holdings) that exercises its
ROFR Rights the lesser of (1) Fair Market Value determined
pursuant to the Contract of Association and (2) the cash
equivalent of the consideration described in 8.5.1(ii) above,
at such shareholder's option.
8.6 RULE 144 INFORMATION RIGHTS. At any time when TIW is neither subject to
Section 13 or 15(d) of the United States Securities Exchange Act of
1934 (the "1934 ACT"), nor exempt from the filing requirements of the
1934 Act pursuant to Rule 12g3-2(b) thereunder, TIW agrees to furnish
holders and prospective purchasers of TIW Shares with the information
required by Rule 144A(d)(4) under the United States Securities Act of
1933 (the "1933 ACT").
8.7 TIW SHARES.
8.7.1 TIW hereby covenants and agrees that it will use its best
efforts to obtain the acceptance for listing of the TIW Shares
on the TSX as soon as possible.
8.7.2 EEIF hereby covenants and agrees that:
(a) if required by any applicable securities laws or
regulations, it will assist TIW or MobiFon Holdings,
as the case may be, in filing such reports,
undertakings and other documents with respect to the
transfer of the Shares and the issue of the TIW
Shares as may be required of TIW or MobiFon Holdings,
as the case may be, by any relevant securities
commission or other regulatory authority, it being
understood that TIW will be solely responsible for
all expenses associates with such filings.
(b) it will not resell the TIW Shares in Canada or in the
United States except in accordance with Securities
Laws.
8.8 CHANGE OF CONTROL. TIW covenants and agrees that if, between the date
hereof and Completion, TIW or its shareholders enter into an agreement
or series of related agreements, whether by way of a take-over bid, a
merger or otherwise, the result of which would be that any "person" or
"group" (as that term is used in Section 13(d)(3) of the 0000 Xxx)
other than the Major Shareholders when taken as a group, becomes the
"beneficial owner" (as defined in Rule 13d-3 under the 1934 Act),
directly or indirectly, of more than 50% of the common shares of TIW or
otherwise acquires Control of TIW, TIW will ensure that EEIF
participates in such transaction on the same proportionate terms and
conditions as if it had completed the MobiFon Share Transfer and the
TIW Czech Share Transfer.
8.9 OTHER LIQUIDITY EVENT. TIW covenants and agrees that if, between the
date hereof and Completion, TIW completes an offering of its common
shares (or securities exchangeable or convertible into common shares)
the proceeds of which are to be used by TIW, in whole or in part, to
purchase for cash, directly or through a Subsidiary, the MobiFon shares
held by other MobiFon shareholders (the "OFFERING"), it will offer EEIF
the opportunity to accept, in lieu of TIW Shares under Clauses 2 and
8.5, a cash payment (the
18
"CASH OPTION") equal to, for every TIW Share EEIF would have been
entitled to receive under Clause 2 or 8.5, the net proceeds to be
received by TIW for every common share issued under the Offering, such
offer (the "CASH OPTION OFFER") to be in writing. The Cash Option will
apply only to that number of MobiFon Shares that, after being converted
into a number of TIW Shares using the Exchange Ratio, EEIF would have
been entitled to sell under the Registration Rights Agreement as a
party thereof and had all the Holders (as defined in the Registration
Rights Agreement) requested to have their Registrable Securities (as
defined in the Registration Rights Agreement) sold in the Offering.
EEIF shall have a period of five Business Days from the receipt by it
of the Cash Option Offer to accept the Cash Option Offer by giving
written notice of its acceptance to TIW. Completion of the transfer of
MobiFon Shares pursuant to the Cash Option Offer shall be subject to
compliance with the ROFR Procedure.
8.10 LOCK-UP. EEIF covenants and agrees to not, directly or indirectly, (1)
offer for sale, sell, pledge, or otherwise dispose of (or enter into
any transaction or device that is designed to, or could be expected to,
result in the disposition by any person at any time in the future of)
any common shares of TIW (including, without limitation, common shares
of TIW that may be deemed to be beneficially owned by EEIF in
accordance with the rules and regulations of the United States
Securities and Exchange Commission and common shares of TIW that may be
issued upon exercise of any option or warrant) or securities
convertible into or exchangeable for common shares of TIW owned by EEIF
on the consummation of, the MobiFon Share Transfer and the TIW Czech
Share Transfer, or (2) enter into any swap or other derivatives
transaction that transfers to another person, in whole or in part, any
of the economic benefits or risks of ownership of such common shares of
TIW, whether any such transaction described in clause (1) or (2) above
is to be settled by delivery of common shares of TIW or other
securities, in cash or otherwise, for a period of six (6) months from
the Completion Date, without the prior written consent of TIW, unless
it does so in accordance with applicable Securities Laws and (i)
pursuant to its tag-along right under section 6.1 of the Investor
Rights Agreement, substantially in the form attached hereto as Schedule
7 of this Agreement; (ii) pursuant to its piggyback registration rights
under section 3 of the Registration Rights Agreement, substantially in
the form attached hereto as Schedule 8 of this Agreement; or (iii) if
TIW acquires Shares from an Exchanging Shareholder for total or partial
cash consideration (except under an Offering), provided that EEIF will
only be released from this lock-up provision with respect to the
percentage of common shares of TIW that EEIF holds that is equal to the
percentage of Shares of the Exchanging Shareholder that is purchased
for cash by TIW.
9. LIMITATIONS ON LIABILITY
9.1 No party hereto shall be liable in respect of a claim for breach of the
Warranties or any other provision of this Agreement (a "RELEVANT
CLAIM") unless and until (i) such Relevant Claim is capable of being
quantified or is ascertained or ascertainable at the time of the
Relevant Claim; (ii) the amount that would otherwise be recoverable
from the Purchasers or EEIF, as the case may be (but for this Clause
9.1) in respect of that claim, when aggregated with any other amount or
amounts recoverable in respect of other claims of such party under this
Agreement or the TIW Czech Share Sale and Purchase Agreement, exceeds
19
USD 1,000,000 and (iii) the amount of each such claim exceeds USD
100,000; provided that the Purchasers' joint total liability and EEIF's
(jointly with EEIF Czech and EEIF CV) total liability shall,
respectively, be limited to USD 42,500,000, in respect of all claims
under this Agreement and the TIW Czech Share Sale and Purchase
Agreement.
9.2 No party shall be liable in respect of a Relevant Claim unless the
party intending to bring a claim has given the party in breach written
notice of that Relevant Claim as soon as is reasonably practicable
after becoming aware of such claim, stating in reasonable detail the
nature of the claim and, if practicable, the amount claimed:
9.2.1 in respect of a claim for breach of Warranty by TIW relating
to Taxes on or before the later of the expiry of the
applicable limitation or prescription period provided under
applicable Law;
9.2.2 in respect of another claim, on or before the later of April
30, 2005 or 60 days after the Company's audited accounts for
the year ended 31 December 2004 have been released.
9.3 No party shall be liable in respect of any Relevant Claim (if not
previously satisfied, settled or withdrawn) unless the party intending
to bring a claim has referred such claim to arbitration in accordance
with Clause 12.2, within twelve months of the service of notice of that
Relevant Claim under Clause 9.2.
9.4 The Purchasers shall not be liable in respect of a Relevant Claim if
and to the extent that the Accounts or the Management Accounts make an
adequate allowance, provision or reserve in respect of the matter
giving rise to the Relevant Claim or was referred to in the notes to
the Accounts or the controller's report on the Management Accounts, a
true and complete copy of which have been delivered to EEIF and have
been initialled for the purposes of identification.
9.5 No party shall be liable to the extent that the matter giving rise to
the claim arises as a consequence of any breach by the party seeking to
enforce the claim of its obligations under this Agreement.
9.6 The parties agree that, in respect of any matter which may give rise to
a liability under this Agreement including a claim under this Agreement
no such liability shall be met more than once.
9.7 Save for the notice requirement under Clause 9.2, this Clause 9 does
not apply in respect of a claim involving or relating to breach of an
Indemnity Warranty.
10. NOTICES
10.1 Any notice, communication or other document required to be given or
served under this Agreement ("NOTICE") shall be in writing in English
duly signed by or on behalf of the party giving it and may be delivered
to any party by sending it by commercial courier or by facsimile to
such party (with a copy by e-mail at the sole discretion of the party
giving the Notice and provided that a failure to send a copy by e-mail
shall not otherwise
20
invalidate such Notice) at its address set forth below (or at its new address,
as notified to each of the other parties in writing in accordance with this
Clause):
10.1.1 in the case of EEIF, to:
c/o Amicorp
Professor Xxxxxxxxxxx 0
0000 XX Xxxxxxxxxx
Xxx Xxxxxxxxxxx
Tel: x00 00 000 0000
Fax: x00 00 000 0000
Attn: Xxxxxxx Xxxxxxxx
With a copy to:
Emerging Markets Partnership (Europe) Limited
000, Xxxxxxxx Xxxx
Xxxxxx XX0 0XX
Xxxxxx Xxxxxxx
Tel: x00 00 0000 0000
Fax: x00 00 0000 0000
Attn: Xxxxx Xxxxxx
10.1.2 in the case of TIW, to:
Telesystem International Wireless Inc.
0000 Xxxx Xxxxxxxx Xxxxxx West, 38th Floor
Xxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
Tel: x0 000 000 0000
Fax: x0 000 000 0000
Attn: General Counsel
10.1.3 in the case of MobiFon Holdings, to:
c/o Telesystem International Wireless Inc.
0000 Xxxx Xxxxxxxx Xxxxxx West, 38th Floor
Xxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
Tel: x0 000 000 0000
Fax: x0 000 000 0000
Attn: General Counsel
21
10.2 Any Notice given by commercial courier shall be deemed to have been
delivered on the second Business Day following the date it is
dispatched and any Notice given by facsimile shall be deemed to have
been delivered on the date that the facsimile is dispatched and
confirmation of receipt (electronic or otherwise) is received and
provided that if deemed receipt occurs before 9.00 a.m. on a Business
Day the notice shall be deemed to have been received at 9.00 a.m. on
that day, and if deemed receipt occurs after 5.00 p.m. on a Business
Day, or on a day which is not a Business Day, the notice shall be
deemed to have been received at 9.00 a.m. on the next Business Day.
10.3 Any Notice given by EEIF to either TIW or MobiFon Holdings will be
deemed to be given to both Purchasers and any Notice given to EEIF by
either TIW or MobiFon Holdings will be deemed to be given by both
Purchasers.
11. GENERAL PROVISIONS
11.1 Successors and Assigns
No party shall be entitled to assign any of its rights and obligations
under this Agreement without the prior written consent of each of the
other parties, provided, however, that either party may assign any of
its rights and obligations under this Agreement to one or more of its
Affiliates. This Agreement shall be binding upon the parties and their
respective successors and permitted assigns.
11.2 Entire Agreement
11.2.1 This Agreement and the documents which are required by its
terms to be entered into by the parties or any of them or
which are referred to in this Agreement (together the "SHARE
TRANSFER DOCUMENTS") constitute the entire agreement and
understanding of the parties in connection with the exchange
of the shares and other matters described in them and
supersede any previous agreement between the parties relating
to the subject matter of this Agreement.
11.2.2 Each party acknowledges and agrees that it has not entered
into the Share Transfer Documents or any of them in reliance
on any agreement, undertaking, representation, warranty,
promise, assurance or arrangement of any nature whatsoever
(whether or not in writing, whether express or implied, and
whether or not in draft form) made or given by any person at
any time prior to the execution of this Agreement in
connection with the transactions described in the Share
Transfer Documents (a "PRE-CONTRACTUAL STATEMENT"), which is
not expressly set out in the Share Transfer Documents (or any
of them). Each party irrevocably and unconditionally waives
any claims, rights or remedies which it may otherwise have in
relation to a Pre-Contractual Statement; provided always that
this Clause 11.2 shall not exclude or limit any liability or
any right which any party may have in respect of a
Pre-Contractual Statement made or given fraudulently or
dishonestly in circumstances where there has been wilful
concealment.
11.3 Amendments
22
Any amendment of or to any provision of this Agreement shall be
effective only if it is made or given in writing and signed by all the
parties hereto.
11.4 Waiver
No delay or failure by any party to this Agreement to exercise any of
its powers, rights or remedies under this Agreement shall operate as a
waiver of them, nor shall any single or partial exercise of any such
powers, rights or remedies preclude any other or further exercise of
them. The remedies provided in this Agreement are cumulative and not
exclusive of any remedies provided by law. No waiver by a party of any
breach by the other party of any provision of this Agreement shall be
deemed to be a waiver of any subsequent breach of that or any other
provision of this Agreement.
11.5 Time of essence
Time is of the essence of this Agreement in respect of any date or
period mentioned in this Agreement and any date or period substituted
by written agreement between the parties or otherwise.
11.6 Partnership
Nothing in this Agreement shall be deemed to constitute a partnership
between the parties (or any of them) nor constitute any party the agent
of any other party (unless otherwise expressly provided) or otherwise
entitle any party to have authority to bind any other party for any
purpose.
11.7 Disclosure
The parties acknowledge that a letter agreement dated 4 November 2003
was signed, pertaining to the treatment of confidential information,
which provisions shall form an integral part hereof (the
"NON-DISCLOSURE AGREEMENT"). The parties further acknowledge that (i)
the terms and conditions of this Agreement are strictly confidential
and agree to hold such terms and conditions in strict confidence and
not to disclose them to any person, except as may be otherwise
permitted by this Agreement or required by law (including without
limitation any order of a court of competent jurisdiction) or by the
rules of any recognized stock exchange, or governmental or other
regulatory body, other than their respective shareholders, employees
and representatives, it being understood that the disclosing party
shall have the obligation to inform any person to whom the terms and
conditions of this Agreement are disclosed of the confidential nature
thereof; and (ii) neither party shall make any announcement with regard
to the this Agreement and the transactions contemplated hereby without
obtaining the prior written consent of the other party hereto.
11.8 Further Assurances
Each party hereto shall do and perform or cause to be done and
performed all such further acts and things and shall execute and
deliver all such other agreements, certificates,
23
instruments and documents as any other party hereto may reasonably
request in order to carry out the intent and accomplish the purposes of
this Agreement.
11.9 Invalidity of Provision
The invalidity or unenforceability of any provision of this Agreement
in any jurisdiction shall not affect the validity or enforceability of
the remainder of this Agreement in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any
other jurisdiction.
11.10 Counterparts
This Agreement may be executed in any number of counterparts or
facsimile duplicates each of which shall be an original but such
counterparts or facsimile duplicates shall together constitute one and
the same agreement.
11.11 Costs
EEIF and the Purchasers shall each be responsible for the expenses
(including fees and expenses of legal advisers, accountants and other
professional advisers) incurred by them, respectively, in connection
with the negotiation and execution of this Agreement and the
finalization of the transactions contemplated hereby (including the TIW
Czech Share Transfer), provided however that the Purchasers shall be
responsible for (i) all expenses relating to the fulfilment of the
conditions provided in Schedule 1, Part A, paragraphs 2 and 3 and (ii)
the expenses (including fees and expenses of legal advisers,
accountants and other professional advisers) of EEIF up to, but not in
excess of (pound)50,000. Notwithstanding the foregoing, in the event
that this Agreement is not completed as a result of EEIF's actual or
constructive withdrawal from negotiations or its unwillingness to
complete the transactions contemplated hereby then the Purchasers shall
not be obligated to pay any expenses of EEIF as provided in sub-Clause
(ii) hereof.
12. GOVERNING LAW AND DISPUTE RESOLUTION
12.1 English Law
This Agreement shall be governed by, and construed in all respects in
accordance with, the laws of England.
12.2 Arbitration
Any dispute arising out of or in connection with this Agreement,
including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by arbitration
under the LCIA Rules, which rules are deemed to be incorporated by
reference into this Clause.
12.2.1 The number of arbitrators shall be 3 (three).
12.2.2 The seat, or legal place, of arbitration shall be London.
24
12.2.3 The language to be used in the arbitral proceedings shall be
English.
12.2.4 Notwithstanding the above, any of the interim or conservatory
measures of the parties arising out of or relating to this
Agreement may, at the option of any of the parties, be
enforced by the parties in the courts of England or in any
other courts having jurisdiction. The Purchasers hereby
irrevocably designate, appoint and empower Law Debenture
Corporate Services Limited at its registered office (being, on
the date hereof, at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxx XX0X
0XX, Xxxxxxx), to act as their authorised agent to receive
service of process and any other legal summons in England.
EEIF hereby irrevocably designates, appoints and empowers
Emerging Markets Partnership (Europe) Limited at its place of
business (being, on the date hereof, at 000 Xxxxxxxx Xxxx,
Xxxxxx XX0 0XX) to act as its authorised agent to receive
service of process and any other legal summons in England.
Each of the parties covenants and agrees that, so long as it
has any obligation under this Agreement, it shall maintain a
duly appointed agent to receive service of process and any
other legal summons in any legal action or proceeding brought
by the other parties in England in respect of this Agreement
and shall keep the parties advised of the identity and
location of such agent.
12.2.5 Each of the parties represents and warrants to the other
parties that this Agreement and their obligations hereunder
are commercial obligations, and confirm that they are not
entitled to claim immunity from legal proceedings in an action
brought for the enforcement of this Agreement.
13. EXCLUSION OF CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
No person who is not a party to this Agreement shall have any right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Agreement.
IN WITNESS WHEREOF, the parties hereto, being duly authorised, intending to be
legally bound, have caused this Agreement to be duly executed and delivered as a
deed on the date first above written.
25
SCHEDULE 1
CONDITIONS PRECEDENT
Part A
Conditions in favour of EEIF
1. There is no order of any court of competent jurisdiction or any ruling
of any Governmental Authority or any condition imposed under any Law
which, would prevent the transfer of the MobiFon Shares, the issue of
the TIW Shares, or material compliance by the parties of their
obligations under this Agreement.
2. TIW has obtained conditional listing approval and acceptance of the
private placement notice from the Toronto Stock Exchange (the "TSX")
and similar approvals from Nasdaq, as may be required, for the issuance
of the common shares of TIW under the MobiFon Share Transfer and the
TIW Czech Share Transfer.
3. The Commission des valeurs mobilieres du Quebec ("CVMQ") has not
objected to the information filed by TIW under Section 12 of the
Securities Act (Quebec) (the "QUEBEC ACT") and section 115 of the
regulation respecting securities (Quebec) (the "QUEBEC REGULATION") in
connection with the issuance of the TIW Shares or, if the CVMQ has
objected to the information filed by TIW and required the filing of a
prospectus to qualify the issuance of such TIW common shares, then TIW
shall have filed such prospectus with the CVMQ on or before the
Completion Date;
4. All consents, approvals and authorisations required for Completion
under the Loan Agreements, any other financing agreements TIW or any of
its Subsidiaries is party to or under the Contract of Association or
the Statutes have been obtained.
5. Notice of this Agreement and the transfer of the MobiFon Shares
contemplated herein shall have been duly given in accordance with the
provisions of the Contract of Association (the "TRANSFER NOTICE") and
either (i) 30 days have passed since the last MobiFon shareholder
received the Transfer Notice, and no shareholder has exercised its ROFR
Rights; (ii) MobiFon Holdings and at least one other MobiFon
shareholder have exercised their ROFR Rights and 30 days have passed
since the last MobiFon shareholder received the Transfer Notice
(notwithstanding that the procedure for determining Fair Market Value
(as defined in the Contract of Association) is still underway); or
(iii) all shareholders shall have unconditionally and irrevocably
waived, in a manner satisfactory to EEIF, all of their ROFR Rights in
relation to the transfers of the MobiFon Shares contemplated by this
Agreement.
6. The TIW Czech Share Sale and Purchase Agreement shall have been duly
executed by TIW and ClearWave.
26
Part B
Conditions in favour of the Purchasers
1. There is no order of any court of competent jurisdiction or any ruling
of any Governmental Authority or any condition imposed under any Law
which would prevent the transfer of the MobiFon Shares, the issue of
the TIW Shares, or material compliance by the parties of their
respective obligations under this Agreement.
2. TIW has obtained conditional listing approval and acceptance of the
private placement notice from the TSX and similar approvals from
Nasdaq, as may be required, for the issuance of the common shares of
TIW under the MobiFon Share Transfer and the TIW Czech Share Transfer.
3. The CVMQ has not objected to the information filed by TIW under Section
12 of the Quebec Act and section 115 of the Quebec Regulation in
connection with the issuance of the TIW Shares or, if the CVMQ has
objected to the information filed by TIW and required the filing of a
prospectus to qualify the issuance of such TIW common shares, TIW will
have filed such prospectus with the CVMQ on or before the Completion
Date.
4. The Transfer Notice shall have been duly given in accordance with the
provisions of the Contract of Association and either (i) 30 days have
passed since the last MobiFon shareholder received the Transfer Notice,
and no shareholder has exercised its ROFR Rights; (ii) MobiFon Holdings
and at least one other MobiFon shareholder have exercised their ROFR
Rights and 30 days have passed since the last MobiFon shareholder
received the Transfer Notice (notwithstanding that the procedure for
determining Fair Market Value (as defined in the Contract of
Association) is still underway); or (iii) all shareholders shall have
unconditionally and irrevocably waived, in a manner satisfactory to TIW
and MobiFon Holdings, all of their ROFR Rights in relation to the
transfers of the MobiFon Shares contemplated by this Agreement.
5. All consents, approvals and authorisations required for Completion
under the Loan Agreements, any other financing agreements TIW or its
Subsidiaries is party to or under the Contract of Association or the
Statutes have been obtained.
27
SCHEDULE 2
DOCUMENTS TO BE EXECUTED AND/OR DELIVERED AT COMPLETION
PART A
DOCUMENTS TO BE EXECUTED AND/OR DELIVERED BY TIW:
1. Deliver to EEIF as evidence of the authority of each person executing this
Agreement and/or a document referred to in this schedule on TIW's behalf, a
copy of or extract from the minutes of a duly held meeting of the board of
directors authorising the execution of the Agreement and conferring the
authority to the signatory to sign on TIW's behalf, certified to be a true
copy by the secretary of TIW.
2. Deliver to EEIF:
2.1 a certificate of an officer of TIW in the agreed form confirming (i)
the accuracy of the Warranties in Schedule 3 Part A and B as at
Completion and (ii) there has not occurred any Material Adverse Change
since the date of this Agreement; and
2.2 legal opinions issued by Fasken Xxxxxxxxx XxXxxxxx and addressed to
EEIF in relation to TIW in form and substance satisfactory to EEIF
acting reasonably.
3. Execute and deliver the TIW Czech Share Sale and Purchase Agreement dated
as of the date hereof.
4. Deliver the share certificate(s) in relation to the TIW Shares which
certificate(s) evidence the transfer restrictions provided for under Clause
8.10.
5. Deliver the amended and restated versions of the Investor Rights Agreement
and Registration Rights Agreement, countersigned by the parties currently
party to those agreements, other than CDPQ Capital Communications Inc. in
the case of the Registration Rights Agreement, substantially in the form
attached hereto as Schedules 7 and 8.
6. Execute, or have the relevant TIW's Subsidiary execute, and deliver
termination agreements for the Exit Deed, the Deed of Undertaking and the
Voting Agreement.
DOCUMENTS TO BE EXECUTED AND/OR DELIVERED BY MOBIFON HOLDINGS:
1. Deliver to EEIF as evidence of the authority of each person executing this
Agreement and/or a document referred to in this schedule on MobiFon
Holdings's behalf, a copy of or extract from the minutes of a duly held
meeting of the directors or governing body of MobiFon Holdings authorising
the execution of the Agreement and conferring the authority to the
signatory to sign on MobiFon Holdings's behalf, certified to be a true copy
by the secretary or a director of MobiFon Holdings.
28
2. Deliver to EEIF:
2.1 a certificate of an officer of MobiFon Holdings in the agreed form
confirming (i) the accuracy of the Warranties in Schedule 3 Part B as
at Completion and (ii) there has not occurred any Material Adverse
Change since the date of this Agreement; and
2.2 legal opinions issued by Stibbe and addressed to EEIF in relation to
MobiFon Holdings in form and substance satisfactory to EEIF acting
reasonably.
3. Deliver to MobiFon
3.1 a notarised and apostilled power of attorney in favour of the person
executing any other document referred to in this schedule, translated
into Romanian by a certified translator whose signature is
authenticated by a Romanian notary; and
3.2 an extract or copy of minutes of MobiFon Holdings' board (or other
governing body) which evidence the intent of MobiFon Holdings to
purchase the MobiFon Shares.
4. Sign the MobiFon shareholders registry and endorse the share certificates
to evidence the transfer of ownership of the MobiFon Shares to MobiFon
Holdings.
5. Deliver the signed share certificates for the MobiFon Shares to the
representative of the Senior Lenders.
29
PART B
DOCUMENTS TO BE EXECUTED AND/OR DELIVERED BY EEIF:
1. Deliver to the Purchasers as evidence of the authority of each person
executing this Agreement and/or a document referred to in this schedule on
EEIF's behalf:
1.1 a copy of or extract from the minutes of a duly held meeting of the
directors or governing body of EEIF authorising the execution of this
Agreement, certified to be a true copy by secretary or a director of
EEIF; and
1.2 a power of attorney conferring the authority to sign on EEIF's behalf.
2. Deliver to MobiFon:
2.1 an extract or copy of minutes of EEIF's board (or other governing body)
decision confirming its intent to transfer the MobiFon Shares;
2.2 a notarised and apostilled power of attorney in favour of the person
executing any other document referred to in this schedule; and
2.3 a resignation of EEIF's representative on the board of directors of
MobiFon.
in each case translated into Romanian by a certified translator whose signature
is authenticated by a Romanian notary.
3. Sign the MobiFon shareholders registry and endorse the share certificates
to evidence the transfer of ownership of the MobiFon Shares to MobiFon
Holdings.
4. Deliver to the Purchasers:
4.1 a statement signed by an authorised representative of EEIF confirming
that EEIF has complied with all applicable ROFR Procedures;
4.2 a statement signed by the secretary of MobiFon confirming that MobiFon
did not receive any timely notices of exercise of ROFR Rights with
respect to the MobiFon Shares from any shareholder, other than MobiFon
Holdings, as the case may be;
4.3 written confirmation that neither EEIF nor any of its directors is
aware of (i) any matter or thing which is a breach of or inconsistent
with any of the Warranties set out in Schedule 4 and (ii) any Material
Adverse Change; and
4.4 a legal opinion issued by Houthoff and addressed to the Purchasers in
relation to EEIF in the form and substance satisfactory to TIW acting
reasonably.
5. Execute, or have the relevant EEIF Affiliates execute, and deliver the
signed TIW Czech Share Sale and Purchase Agreement dated as of the date
hereof.
30
7. Execute and deliver, and have the relevant EEIF Affiliates execute and
deliver the amended and restated versions of the Investor Rights Agreement
and Registration Rights Agreement, which shall be countersigned by the
parties currently party to those agreements, other than CDPQ Capital
Communications Inc. in the case of the Registration Rights Agreement,
substantially in the form attached hereto as Schedules 7 and 8.
8. Execute and deliver, or have the relevant EEIF Affiliate execute,
termination agreements for the Exit Deed, the Deed of Undertaking and the
Voting Agreement.
31
SCHEDULE 3
WARRANTIES OF TIW AND MOBIFON HOLDINGS
PART A
WARRANTIES OF TIW
1. Details of TIW set out in Schedule 5 are correct and accurate.
2. TIW is a corporation duly incorporated and validly existing under the
Laws of Canada, has been in continuous and unbroken existence since the
date of its incorporation and is a reporting issuer in good standing in
the Provinces of Ontario and Quebec and is in compliance in all
material respects with the securities law requirements in every
jurisdiction in which its securities are listed for trading and is not
on the list of defaulting reporting issuers maintained under the
Ontario Securities Act or the Quebec Securities Act.
3. Each member of the TIW Group has all requisite power and authority to
own and operate its property and assets, to lease the property and
assets it operates as lessee and to conduct the business in which it is
currently, or is currently proposed to be, engaged, except where the
failure to be so qualified would not result in a Material Adverse
Effect; provided however that, for the purpose of the foregoing
Warranty, the defined term TIW Group shall be deemed to exclude
MobiFon, Cesky and TIW Czech.
4. TIW has the corporate power and corporate authority to execute, deliver
and perform its obligations under this Agreement.
5. No member of the TIW Group has offered, promised or given money or any
other thing of value, directly or indirectly, to:
5.1 any governmental official;
5.2 any political party or official thereof;
5.3 any candidate for political office; or
5.4 any other person, while knowing or having reason to know that all or a
portion of such money or thing of value will be offered, promised or
given, directly or indirectly, to any of those listed in items 5.1
through 5.3 above,
in each case, for the purpose of influencing any action, omission or
decision by the recipient in order to either obtain or retain business
or to direct business to another, except as otherwise expressly
permitted under the US Foreign Corrupt Practices Act 1977 as amended;
provided however that, for the purpose of the foregoing Warranty, the
defined term TIW Group shall be deemed to exclude MobiFon, Cesky and
TIW Czech.
32
6. every member of the TIW Group operates its business in compliance or
accordance with (i) applicable environmental, health and safety
requirements in effect from time to time in the country or countries
where such business is undertaken and (ii) the World Bank Group's
applicable environmental, health and safety guidelines; provided
however that, for the purpose of the foregoing Warranty, the defined
term TIW Group shall be deemed to exclude MobiFon, Cesky and TIW Czech.
7. The execution, delivery and performance by TIW of this Agreement and
the transactions contemplated hereby:
7.1 have been or will be, on or prior to Completion, duly authorised by all
necessary corporate actions;
7.2 will not contravene the terms of its constitutional documents;
7.3 will not violate, conflict with or result in any breach or
contravention of, any contractual obligation, or any consents,
approvals, orders or authorisations referred to in paragraph 8 of this
Schedule 3;
7.4 will not cause TIW to breach or constitute a default under any
agreement, instrument or arrangement, whether binding or not, to which
it is a party, or any order, judgement or decree of any court or
Governmental Authority to which it is a party or otherwise bound;
7.5 will not result in the creation of any Encumbrance over any of the TIW
Shares, other than any Encumbrance created by EEIF or its Affiliates;
7.6 will not result in any indebtedness of TIW or any of its Subsidiaries
becoming due or capable of being declared due and payable prior to its
stated maturity; and
7.7 will not violate any Law binding upon it.
8. No approval, consent, licence, exemption, authorisation, order,
registration, qualification or other action by, or notice to, or filing
with, any Governmental Authority or any other person in respect of any
Law, and no lapse or waiting period under any Law, is necessary or
required in connection with the execution, delivery or performance
(including, without limitation, the transfer and delivery of the TIW
Shares) by, or enforcement against TIW of this Agreement or the
transactions contemplated hereby or any other related documents,,
except such consents, approvals, authorisations or filings that have
been obtained or made and except for those provided in Schedule 1 of
this Agreement.
9. The common shares of TIW are listed and posted for trading on the TSX
and on Nasdaq and TIW is up to date with its filings, in all materials
respects, on both exchanges, subject to the necessary filings with the
TSX and Nasdaq to list the TIW common shares issued pursuant to the
MobiFon Share Transfer and the TIW Czech Share Transfer.
10. TIW is a qualifying issuer as defined in Multilateral Instrument 45-102
- Resale of Securities and is, and will have been for the four months
preceding the Closing Date, a reporting issuer in the provinces of
Ontario and Quebec.
33
11. TIW is a "foreign issuer" within the meaning of Regulation S of the
1933 Act and agrees to notify EEIF as soon as practicable upon it
becoming a "domestic issuer", as those terms are defined in Regulation
S.
12. Subject to the truth and accuracy of the TIW's and EEIF's warranties
set forth in Schedules 3 and 4 hereof, respectively, and subject to the
restrictions on transfer imposed by Clause 8.10, the TIW Shares will be
freely transferable on the TSX through an appropriately registered
dealer in Canada, provided that EEIF complies with the resale
requirements set forth in section 2.6(3) of Multilateral Instrument
45-102 - Resale of Securities.
13. Subject to the truth and accuracy of EEIF's warranties set forth in
Schedule 4 hereof, the offer, sale and issuance by TIW of the TIW
Shares pursuant to this Agreement is exempt from the registration
requirements of the 1933 Act. None of TIW, its Subsidiaries or any
person acting on its or their behalf has offered or will offer to sell
any of the TIW Shares by means of any form of general solicitation or
general advertising (as those terms are used in Regulation D under the
0000 Xxx) or in any manner involving a public offering within the
meaning of Section 4(2) of the 0000 Xxx.
14. TIW does not have any obligation to pay any person any finder's or
other fee or commission (other than as provided in this Agreement) in
connection with this Agreement or the transactions to be executed
thereunder, other than fees and commission payable to Lazard Freres &
Co. LLC and Lazard & Co., Limited.
15. This Agreement constitutes the legal, valid and binding obligations of
TIW, enforceable against TIW in accordance with its terms (assuming due
execution and delivery by EEIF) except as enforceability may be limited
by applicable bankruptcy, insolvency, fraudulent conveyance or
transfer, moratorium or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
16. Every member of the TIW Group is in compliance with all Laws that are
applicable to it and all decisions issued by any court or Governmental
Authority having jurisdiction over it, save for non-compliance which
could not reasonably be expected to have a Material Adverse Effect;
provided however that, for the purpose of the foregoing Warranty, the
defined term TIW Group shall be deemed to exclude MobiFon, Cesky and
TIW Czech.
17. There are no actions, suits, proceedings, orders, investigations or
claims which could be reasonably expected to have a Material Adverse
Effect and that are (i) pending or (ii) so far as Senior Management is
aware, threatened against any member of the TIW Group (or pending or
threatened against or affecting any of member of the TIW Group's
officers, directors or employees in their capacity as such), or (iii)
pending or threatened by any member of the TIW Group against any third
party, at law or in equity, or before any Governmental Authority
(including, without limitation, any actions, suits, proceedings,
investigations or enquiries with respect to the transactions
contemplated by this Agreement) and, so far as Senior Management is
aware, there are no circumstances now existing which could reasonably
be expected to lead to any such action, suit, proceedings, orders,
investigation, enquiry or claim; provided however that for the purpose
of the
34
foregoing warranty, the defined term TIW Group shall be deemed to
exclude MobiFon, Cesky and TIW Czech. No member of the TIW Group is
subject to any arbitration proceedings under collective bargaining
agreements or otherwise or any governmental investigations or
inquiries, which if determined in an adverse manner to such member of
the TIW Group could be reasonably expected to have a Material Adverse
Effect; provided however that for the purpose of the foregoing
warranty, the defined term TIW Group shall be deemed to exclude
MobiFon, Cesky and TIW Czech.
18. TIW is entitled to issue the TIW Shares and to transfer the full legal
and beneficial ownership of the TIW Shares under the terms of this
Agreement free from any Encumbrance, other than those created by EEIF
and its Affiliates and those transfer restrictions created by Clause
8.10, and when issued, the TIW Shares will be fully paid,
non-assessable common shares of TIW.
19. As of 9 February 2004, there are no outstanding or existing
obligations, options, warrants or other rights of any kind or character
to which TIW is a party to acquire, purchase, subscribe or issue shares
of TIW or securities convertible into or exchangeable for shares in
TIW, other than as contemplated in this Agreement, the TIW Czech Share
Sale and Purchase Agreement or as described in Schedule 6 hereto.
20. There is no fact, matter or thing of which, after due enquiry, TIW is
aware and which TIW has not disclosed to EEIF in writing or which has
not been disclosed in TIW Group Public Records in the last twelve
months (other than facts, matters or things relating to MobiFon, Cesky
or TIW Czech) which could reasonably be expected to result in a
Material Adverse Change.
21. All necessary approvals, consents, licences, exemptions,
authorisations, orders, registrations, qualifications or other actions
by any Governmental Authority or any other person in respect of any
Law, required by any member of the TIW Group for the carrying on of the
business in which it is currently engaged, and the absence of which
could reasonably be expected to have a Material Adverse Effect, have
been obtained, are valid, in full force and effect and none of Senior
Management is aware, after due enquiry with the Chief Executive Officer
and the Chief Financial Officer of ClearWave, of any reasons or matters
which would prevent their renewal or substitution on substantially the
same terms as are currently in force or on terms consistent with market
practice applicable at that time and none of Senior Management is aware
of any notices of non-compliance or of any penalties having been issued
to any member of the TIW Group in the last 12 months which could
reasonably be expected to have a Material Adverse Effect; provided
however that for the purpose of the foregoing warranty, the defined
term TIW Group shall be deemed to exclude MobiFon, Cesky and TIW Czech.
22. As at the date of this Agreement, so far as Senior Management is aware,
no member of the TIW Group is in breach of any of its obligations under
any agreements (whether written or oral) to which it is a party
including, without limitation, debt financing agreements, which breach
could reasonably be expected to have a Material Adverse Effect and none
of Senior Management is aware of any breach by counter parties to such
agreements of any of their obligations under such agreements which
breach could
35
reasonably be expected to have a Material Adverse Effect; provided
however that for the purpose of the foregoing warranty, the defined
term TIW Group shall be deemed to exclude MobiFon, Cesky and TIW Czech.
23. All agreements, commitments, contracts or transactions involving the
TIW Group which are material to the TIW Group, taken as a whole
("MATERIAL AGREEMENTS"), have been duly approved and are in full force
and effect and all material terms of such Material Agreement have been
filed with the TIW Public Group Records (as defined below); provided
however, that for the purpose of the foregoing Warranty, the defined
term TIW Group shall be deemed to exclude MobiFon, Cesky and TIW Czech.
24. Each member of the TIW Group is, in the opinion of Senior Management,
adequately insured against all risks and perils that a company
conducting the business currently conducted by such member would
ordinarily insure against in amounts and subject to terms that are
customary for a company conducting the business currently conducted by
such member, as detailed in Schedule 6.
25. The Accounts have been properly prepared in accordance with, Canadian
GAAP and reconciled to US GAAP and show a true and fair view of the
financial position, assets and liabilities (whether actual or
contingent) of TIW as at the Accounts Date and of the profits and
losses of TIW for the financial year ended on the Accounts Date.
26. The Management Accounts, a true and complete copy of which has been
delivered to EEIF, fairly present in all material respects the assets
and liabilities, profits and losses of TIW for the period to which they
relate and have been prepared on a basis consistent with the Accounts.
27. Since 31 December 2002, except as disclosed in the TIW Group Public
Records:
27.1 the business of TIW has been carried on in the ordinary and usual
course and so as to maintain the same as a going concern;
27.2 TIW has not acquired or disposed of or agreed to acquire or dispose of
any material business or any asset or assumed or acquired any material
liability (including a contingent liability) otherwise than in the
ordinary course of business;
27.3 there has not been any material change in the assets or liabilities
(including contingent liabilities) of TIW as shown in the Accounts or
the Management Accounts except for changes arising from routine
payments and from routine supplies of goods or of services in the
normal course of trading;
27.4 all payments, receipts and invoices of TIW have been fully and
accurately recorded in the books of TIW, in all material respects.
28. Except as would not have a Material Adverse Effect, each member of the
TIW Group has paid all Taxes that are due and payable by it, provided
however that for the purpose of the foregoing Warranty, the defined
term TIW Group shall be deemed to exclude MobiFon, Cesky and TIW Czech.
36
29. Except as would not have a Material Adverse Effect or as disclosed in
the Accounts and the Management Accounts, no member of the TIW Group
(other than MobiFon, TIW Czech and Cesky) has any liability for Taxes
resulting from or by reference to any income, profits or gains earned,
accrued or received on or before the date of the Agreement.
30. Except as would not have a Material Adverse Effect, all the accounts,
books, ledgers and financial and other material records of whatsoever
kind of each member of the TIW Group (including all invoices and other
records required for VAT purposes) are up to date, in its possession or
under its control and have been properly and accurately kept, provided
however that for the purpose of the foregoing Warranty, the defined
term TIW Group shall be deemed to exclude MobiFon, Cesky and TIW Czech.
31. The copies of TIW constitutional documents (including the by-laws and
statutes) delivered to EEIF are accurate and complete in all material
respects and fully set out all rights attaching to the share capital of
TIW.
32. In all material respects, the register of shareholders and other
statutory books of TIW have been properly kept and contain a true,
accurate and complete record of all the matters which should be dealt
with therein and no notice or allegation that any of the same is
incorrect or should be rectified has been received by TIW.
33. In relation to any member of the TIW Group and any company for whose
debts such member may be liable, no insolvency proceedings (or similar)
have been commenced or, so far as Senior Management is aware,
threatened, and each member of the TIW Group is able to pay its debts
as and when they fall due.
34. The TIW Group is not exposed to any liability, contingent or otherwise,
resulting from the current insolvency and administration proceedings of
the Dolphin Group.
35. To the knowledge of TIW, other than as disclosed in Schedule 6, there
are no agreements or arrangements relating to TIW between any
shareholders of TIW.
36. The certificates provided by officers of TIW attached hereto as
Schedule 9 are correct and accurate, as of their respective date of
signing, and are not misleading.
37. As of 9 February 2004, there are no outstanding or existing
obligations, options, warrants or other rights of any kind or character
to which TIW is a party to acquire, purchase, subscribe or issue shares
of TIW or securities convertible into or exchangeable for shares in
TIW, other than (i) as disclosed in Schedule 10 and Schedule 6 items
19(b), (c) and (d), (ii) pursuant to this Agreement and the TIW Czech
Share Sale and Purchase Agreement and (iii) those obligations, options,
warrants or other rights which are exercisable at a strike price of
USD7.87 or higher..
38. No member of the TIW Group (other than Telesystem International
Wireless (Latin America) Inc. ("TIW LATIN AMERICA")) is subject to any
liability, contingent or otherwise, in connection with, or as a result
of (i) that certain Memorandum of Understanding (the "MOU") entered
into by and among TIW do Brasil Ltda., TIW Latin
37
America and certain Pension Funds (the "PFS") on July 10, 2000, (ii)
the relationship between any member of the TIW Group (including TIW
Latin America) and any of the PFs generally, or (iii) liabilities or
potential liabilities of, or claims by or against, TIW Latin America
with regard to the PFs or the MOU.
39. Each of TIW, MobiFon Holdings and ClearWave has timely filed, in all
material respects, all forms, reports and documents required to be
filed by it with the Canadian regulatory securities authorities and the
United States Securities and Exchange Commission, including, without
limitation, all exhibits required to be filed therewith, either in
paper format or through the System for Electronic Document Analysis and
Retrieval ("SEDAR") and the Electronic Data Gathering and Retrieval
System ("XXXXX") to the extent and from the time it has been required
by law to do so (including any forms, reports and documents filed after
the date hereof, (together, the "TIW GROUP PUBLIC RECORDS"). The TIW
Group Public Records: (i) at the time filed complied (or will comply
when filed, as the case may be) in all material respects with the
applicable requirements of the Canadian and U.S. securities
legislations; and (ii) did not at the time they were filed (or, if
later filed, amended or superseded, then on the date of such later
filing) contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.
40. There are no reports or other information that, in accordance with the
requirements of the Canadian and U.S. securities regulatory
authorities, must be made publicly available by TIW in connection with
the MobiFon Share Transfer or TIW Czech Share Sale and Purchase
Agreement that have not been or will not be filed by TIW as and when
required.
41. The corporate structure chart attached hereto as Schedule 11 contains
all entities part of the TIW Group and is true and accurate in all
respects as of the date of this Agreement or as otherwise stated
therein.
42. To the knowledge of Senior Management, after reasonable due enquiry of
Xxxx xxx Xxxxxxxxxx, corporate secretary and general counsel of
Telesystem International Wireless Corporation N.V., the corporate
structure chart attached hereto as Schedule 12 contains all members of
the Dolphin Group and is true and accurate in all material respects as
of the date of this Agreement.
38
PART B
WARRANTIES OF MOBIFON HOLDINGS:
1. MobiFon Holdings is a limited company duly formed and validly existing
under the laws of the Netherlands.
2. MobiFon Holdings has the corporate power and corporate authority to
execute, deliver and perform its obligations under this Agreement.
3. The execution, delivery and performance by MobiFon Holdings of this
Agreement and the transactions contemplated hereby:
3.1 have been or will be, on or prior to Completion, duly authorised by all
necessary corporate actions;
3.2 will not contravene the terms of its constitutional documents;
3.3 will not violate, conflict with or result in any breach or
contravention of, any contractual obligation, or any consents,
approvals, orders or authorisations referred to in Part B of this
Schedule 3;
3.4 will not cause MobiFon Holdings to breach or constitute a default under
any agreement, instrument or arrangement, whether binding or not, to
which it is a party, or any order, judgement or decree of any court or
Governmental Authority to which it is a party or otherwise bound;
3.5 will not result in any indebtedness of MobiFon Holdings or any of its
Subsidiaries becoming due or capable of being declared due and payable
prior to its stated maturity; and
3.6 will not violate any Law binding upon it.
4. No approval, consent, licence, exemption, authorisation, order,
registration, qualification or other action by, or notice to, or filing
with, any Governmental Authority or any other person in respect of any
Law, and no lapse or waiting period under any Law, is necessary or
required in connection with the execution, delivery or performance by,
or enforcement against MobiFon Holdings of this Agreement or the
transactions contemplated hereby or any other related documents, except
such consents, approvals, authorisations or filings that have been
obtained or made, or are listed in Schedule 1 of this Agreement.
5. This Agreement constitutes the legal, valid and binding obligations of
MobiFon Holdings, enforceable against MobiFon Holdings in accordance
with its terms (assuming due execution and delivery by EEIF) except as
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance or transfer, moratorium or similar laws affecting
the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
39
SCHEDULE 4
WARRANTIES OF EEIF
1. EEIF:
1.1 is a limited company duly formed and validly existing under the laws of
the Netherlands;
1.2 has the power and authority to execute, deliver and perform its
obligations under this Agreement;
1.3 as at the date of this Agreement, EEIF is the registered and beneficial
owner of the MobiFon Shares and is entitled to sell and transfer the
MobiFon Shares and the full legal and beneficial ownership of the
MobiFon Shares on the terms of this Agreement free from any
Encumbrance, other than those created under or pursuant to the Loan
Agreements and the Contract of Association and statutes, and no consent
of any third party is required in relation to the transfer except: (i)
consent of Vodafone and MobiFon Holdings under Section 4.1.4 of the
Contract of Association; and (ii) acquiescence of the Senior Lenders
pertaining to the access to share certificates representing the MobiFon
Shares.
2. The execution, delivery and performance by EEIF of this Agreement and
the transactions contemplated hereby:
2.1 have been or will be, on or prior to Completion, duly authorised by all
necessary corporate action;
2.2 will not contravene the terms of its articles of association;
2.3 will not cause EEIF to breach or constitute a default under any
agreement, instrument or arrangement, whether binding or not, to which
it is a party, or any order, judgement or decree of any court or
governmental agency to which it is a party to by which it is bound; and
2.4 will not violate any Law binding upon it.
3. No approval, consent, licence, exemption, authorisation, order,
registration, qualification or other action by, or notice to, or filing
with, any Governmental Authority or any other person in respect of any
Law, and no lapse or waiting period under any Law, is necessary or
required in connection with the execution, delivery or performance by,
or enforcement against EEIF of this Agreement or the transactions
(including, without limitation, the transfer and delivery of the
MobiFon Shares) contemplated hereby and thereby or any other related
documents, except such consents, approvals, authorisations or filings
that have been obtained or made, or are listed in Schedule 1 of this
Agreement.
4. This Agreement constitutes the legal, valid and binding obligations of
EEIF, enforceable against EEIF in accordance with its terms (assuming
due execution and delivery by TIW)
40
except as enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance or transfer, moratorium or similar
laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability.
5. EEIF acknowledges that the TIW Shares are "restricted securities" and
have not been and will not be registered under the 1933 Act or the
securities laws of any state of the United States and may not be
offered or sold, directly or indirectly, in the United States or to, or
for the account or benefit of, a U.S. Person (as defined in Rule 902(k)
of Regulation S promulgated under the 0000 Xxx) unless registered under
the 1933 Act or an exemption from such registration requirements is
available, and in any event in compliance with applicable state
securities or "blue sky" laws and that TIW's reliance on such exemption
is predicated on EEIF's representations set forth herein.
6. EEIF acknowledges that the TIW Shares may be resold without
registration under the 1933 Act only in certain limited circumstances
if an exemption from registration under the 1933 Act is available. In
this respect, EEIF represents that it is acquiring such securities for
its own account for investment and not with a view to distribution in
violation of the 1933 Act and that it is familiar with Rule 144
promulgated under the 1933 Act, as presently in effect, and understands
the resale limitations imposed thereby and otherwise by the 1933 Act.
EEIF further understands that TIW has no obligation to file a
registration statement with respect to the TIW Shares.
7. EEIF is an accredited investor as defined in Rule 501 (a) of Regulation
D promulgated under the 1933 Act. By reason of EEIF's business and
financial experience, sophistication and knowledge, EEIF is capable of
evaluating the risks and merits of the investment made pursuant to this
Agreement and can bear the economic risks of its investment. In this
regard, it acknowledges that it has been afforded (i) access to
information about TIW and its Subsidiaries and associates and the TIW
Group's financial condition, operations, business, property, management
and prospects sufficient to enable it to evaluate its investment in the
TIW Shares and (ii) the opportunity to ask questions as it deems
necessary of, and to receive answers from, representatives of TIW
concerning the terms and conditions of the exchange of the MobiFon
Shares for TIW Shares and the merits and risks of investing in the TIW
Shares.
8. EEIF is not a "U.S. person" as defined in Rule 902(k) of Regulation S
promulgated under the 1933 Act.
41
SCHEDULE 5
DETAILS OF TIW
Country of incorporation Canada
Company registration number 329350-5
Date of incorporation 9 September 1996
1250 Xxxx Xxxxxxxx West, 38th floor
Registered office Xxxxxxxx, Xxxxxx, Xxxxxx
X0X 0X0
Authorised share capital Unlimited number of common
shares without par value and unlimited
number of preferred shares without par
value, issuable in series
Total number of shares outstanding 99,249,192 common shares as of 9 February
2004.
35,000,000 non-voting preferred shares,
series 1, convertible into common shares
on the basis of 5 preferred shares for 1
common shares.
Xxxxxxx X Xxxxxx
Directors Xxxxxxx Xxxxxx
Xxxx X. Xxxxxxxxx
Xxxxxx Xxx
Xxxxxxx X. Xxxxxx
Xxxxxxxx Xxxxxxx Xxxxxx-Xxxxx
Xxxxxxxxx Salbaing
Xxxxx Xxxxxxxx
Executive Officers Xxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxx
42
SCHEDULE 6
DISCLOSURE SCHEDULE
The purpose of this Schedule is to disclose matters which may be relevant to the
Warranties. The Warranties are qualified by the facts, matters and circumstances
disclosed in or by this Schedule on the terms set out in the Agreement. The
Purchasers are not, nor shall they be deemed to be, in breach of the specific
Warranties referred to in the left-hand column in respect of any facts, matters
circumstances fully and fairly disclosed in the corresponding right-hand column
of this Schedule.
Warranty Disclosure
(a) See Exhibit A to this Schedule.
19
(b) Under section 6.1 of the Share
Exchange Agreement dated October 20,
2003 between TIW and Amaranth L.L.C.,
Amaranth L.L.C. was granted a right
to receive additional common shares
of TIW in the event that TIW acquires
pursuant to subsequent transactions,
shares of ClearWave N.V. in exchange
for common shares of TIW at a more
favourable exchange ratio than that
agreed to with Amaranth L.L.C., the
whole as more fully described in such
share exchange agreement of which a
copy has been provided to EEIF.
(c) Cdn$1,236,500 in principal amount of
7% equity subordinated debentures due
December 31, 2006 is outstanding as
of the date of this Agreement. TIW
has the option, in lieu of payment
the principal amount in cash at
maturity, to deliver that number of
freely tradable common shares
obtained by dividing the principal
amount of the debentures by the
greater of Cdn$1.00 or 95% of the
then current market price of the
common shares, provided no event of
default, as defined in the amended
7.00% equity subordinated debenture
indenture, shall have occurred and be
continuing. Each 7.00% equity
subordinated debenture is convertible
at maturity at the option of the
holder into that number of common
shares equal to the conversion
number, as defined in the amended
7.00% equity subordinated debenture
indenture. The conversion number will
be calculated as of the date of
conversion as:
(a) the conversion value, as
defined in the supplemental
7.00% equity subordinated
debenture indenture, as of
such date, being the
subordinate voting share
value, divided by
(b) 95% of the then current market
price of the common
43
shares.
The subordinate voting share value
will be equal to 11.363636 (subject
to applicable adjustments) -- the
subordinate voting share rate --
multiplied by the current market
price of the common shares on the
date of conversion. TIW has the
option, in lieu of delivering common
shares on conversion, to pay the
conversion value in cash for 7.00%
equity subordinated debentures
tendered for conversion. The
conversion number is subject to
adjustment upon the occurrence of
certain events. The 7.00% equity
subordinated debentures will be
convertible at the option of the
holder prior to maturity upon the
occurrence of an offer, as defined in
the amended 7.00% equity subordinated
debenture indenture, or an event of
default.
(d) Under the Amended and Restated Exit
Agreement between Telesystem
International Wireless Corporation
N.V., ClearWave N.V., RomGSM Holdings
Limited and the Investors (as defined
therein) dated May 3, 2001, as well
as the Exit Agreement dated March 19,
2003 among, inter alia, TIW and EEIF,
and the Supplemental Agreement among,
inter alia, Telesystem International
Wireless Corporation N.V.("TIWC") and
the Investors (as defined therein)
executed on November 2, 2000,
Marketable Securities of TIW (as
defined therein) can be issued in
consideration for the Qualifying
MobiFon Shares (as defined therein)
put to TIWC (or ClearWave), at the
offeror's option.
24 See Exhibit B
(a) Brazil - (i) On 26 March 2003 TIW and
17, 38 TIW Latin America agreed to sell a
newly-created subsidiary named TPSA
Investment Corporation ('TIC") to
Highlake International Business
Company Ltd. ("HIGHLAKE"). TIC had
been created to hold the shares of
TPSA do Brasil Ltda. (formerly TIW do
Brasil Ltda. and referred to as "DO
BRASIL"). To the best of our
knowledge (but without inquiry)
Highlake was then owned as to 95% by
Opportunity Fund and the balance by
CVC/Opportunity Equity Partners LP.
(collectively "OPPORTUNITY"). As part
of the transaction, TIW and TIW Latin
America also entered into a Mutual
Release with Highlake and Opportunity
to bring to an end the litigation
commenced since mid-2000. By the
terms of the Mutual Release, a copy
of which has been provided to EEIF,
there are circumstances where
Opportunity may recommence litigation
and call for the rescission of the
sale and purchase transaction. TIW is
not aware of any events that may lead
Opportunity to invoke its rights
under the Mutual Release.
17, 38 (ii) On 10 July 2000 TIW Latin
America and do Brasil signed the MOU
with the PFs with a view to
commencing litigation in Brazil to
dissolve Newtel Participacoes S.A.,
the company through which the PFs
held their indirect interest in TIW's
Brazilian investee vehicles. The MOU,
a certified translation of which has
44
been provided to EEIF, contained
certain undertakings vis-a-vis the
parties' future conduct as it related
to Opportunity MEM S.A. ("MEM"). MEM
is controlled by Opportunity. On 29
January 2003 TIW obtained an opinion
from Tozzini Freire Xxxxxxxx & Xxxxx
that the MOU had been terminated and
that TIW would have a valid defence
if the PFs were to seek specific
performance of the MOU or damages for
alleged breach. The PFs have not
sought specific performance. By
letter dated 21 January 2004 from
XxXxxxxx Binch, TIW and TIW Latin
America were invited to discuss an
amicable settlement of the allegation
by certain of the PFs that the sale
of TIW's Brazilian assets was in
breach of the MOU and that these PFs
had suffered significant damages
which TIW must indemnify. Certain of
TIW's attorneys have had direct
contact with representatives of these
PFs and have been assured that the
PFs have no intention to pursue the
matter other than through amicable
discussions. TIW is seeking legal
advice from Brazilian counsel to
confirm that there has been no breach
and, in any event, the PFs have
suffered no damages.
17 (b) India - On 12 December 2003 TIW
contracted with a third party for the
sale of a 27.5% interest in Hexacom
India Limited ("HEXACOM") for USD22.5
million, before commissions, fees and
other expenses. Under the terms of
the Hexacom shareholders' agreement,
the other shareholders of Hexacom had
rights of first refusal. One of the
other shareholders has exercised its
rights of first refusal and has
remitted a State Bank of India bank
draft for USD 22.5 million. Such bank
draft is in the process of being
cleared and the proceeds are not
subject to any adjustments or
refunds. TIW also holds a 14.7%
interest in Hexacom though a 49%
position in Shyam Cellular
Infrastructure Projects Limited
("SCIPL"). TIW expects to sell that
interest but it is expected that
TIW's partner in SCIPL will attempt
to block such transaction or reduce
the value of TIW's interest through
dilution or otherwise. There can be
no assurance that the eventual
disposition of TIW's 14.7% will
result in any proceeds to TIW. TIW
has commenced litigation to preserve
its rights in SCIPL and further
litigation my be required.
33 - Several members of the Dolphin
Group are currently in, or may be
in the future, or are in the
process of being, voluntarily or
involuntarily liquidated,
dissolved, wound up, struck from
the companies' register, put under
administration or receivership, or
declared bankrupt.
35 - Investor Rights Agreement,
Registration Rights Agreement
- Nomination Agreement dated April
30, 1997 between TIW and Telesystem
Ltd.
- Use of Premises and Services
Agreement dated May 1, 2003
45
between TIW and Telesystem Ltd.
42 - See disclosure provided above under
Warranty 33.
46
EXHIBIT A TO SCHEDULE 6
PERIOD START: 01-JAN-2004 / PERIOD END: 09-FEB-2004 (OPTIONS EXERCISED UP TO
THIS DATE)
PLAN(s): EMPLOYEE'S STOCK OPTION PLAN AND DIRECTOR'S STOCK OPTION PLAN
AWARD TYPE: OPTIONS ON COMMON SHARES OF TELESYSTEM INTERNATIONAL WIRELESS INC.
BEGINNING OF PERIOD DURING THE PERIOD
------------------- -----------------------------------------
GRANT DATE GRANT NAME XXXXX XXXXX OUTSTANDING GRANTED EXERCISED** CANCELLED/EXPIRED
----------- --------------------------- ------------- ------------------- --------- ----------- -----------------
PLAN NAME:
11-Aug-1999 Regular 11-Aug-1999 $ 575.00CAD 11 0 - -
11-Feb-2000 Regular 11-Feb-2000 $ 1,275.00CAD 11 0 - -
10-Aug-2000 Special 10-Aug-2000 $ 662.50CAD 128 0 - -
11-Aug-2000 Regular 11-Aug-2000 $ 631.25CAD 11 0 - -
11-Dec-2000 Rights Offering 11-Dec-2000 $ 233.75CAD 77 0 - -
14-Dec-2000 Regular 14-Dec-2000 $ 225.00CAD 400 0 - -
07-Nov-01 Promotion 7-Nov-2001 $ 2.60CAD 90 0 - -
15-Nov-01 Regular 15-Nov-2001 $ 6.00USD 53,048 0 15,406 -
15-Nov-01 Regular 15-Nov-2001.1 $ 3.95USD 1,202,565 0 472,857 -
15-Nov-01 Regular 15-Nov-2001.2 $ 5.00USD 36,592 0 15,000 -
14-Dec-2001 Regular 14-Dec-2001 $ 7.85CAD 20 0 - -
06-Mar-02 Promotion 6-Mar-2002 $ 6.15CAD 552 0 - -
15-May-2002 Promotion 15-May-2002 $ 4.90CAD 211 0 - -
17-May-2002 Regular 17-May-2002 $ 5.00USD 36,592 0 36,592 -
12-Aug-2002 Promotion 12-Aug-2002 $ 3.45CAD 8,800 0 - -
12-Nov-02 12-Nov-02 $ 2.15USD 2,315,873 0 680,400 -
02-May-2003 Regular 2-May 2003 $ 2.70CAD 51,000 0 - -
TOTAL 3,705,981 0 1,220,255 -
18-Dec-2003 REGULAR ANNUAL GRANT* 8.13USD 3,526,000 - 50,000
END OF PERIOD
------------------------
GRANT DATE GRANT NAME OUTSTANDING EXERCISABLE
----------- --------------------------- ----------- -----------
PLAN NAME:
11-Aug-1999 Regular 11-Aug-1999 11 11
11-Feb-2000 Regular 11-Feb-2000 11 11
10-Aug-2000 Special 10-Aug-2000 128 96
11-Aug-2000 Regular 11-Aug-2000 11 11
11-Dec-2000 Rights Offering 11-Dec-2000 77 62
14-Dec-2000 Regular 14-Dec-2000 400 400
07-Nov-01 Promotion 7-Nov-2001 90 68
15-Nov-01 Regular 15-Nov-2001 37,642 2,105
15-Nov-01 Regular 15-Nov-2001.1 729,708 37,314
15-Nov-01 Regular 15-Nov-2001.2 21,592 21,592
14-Dec-2001 Regular 14-Dec-2001 20 15
06-Mar-02 Promotion 6-Mar-2002 552 0
15-May-2002 Promotion 15-May-2002 211 211
17-May-2002 Regular 17-May-2002 0 0
12-Aug-2002 Promotion 12-Aug-2002 8,800 0
00-Xxx-00 00-Xxx-00 1,635,473 159,082
02-May-2003 Regular 2-May 2003 51,000 0
TOTAL 2,485,726
18-Dec-2003 REGULAR ANNUAL GRANT* 3,476,000 0
* Note that a total of 3,476,000 stock options (net of cancelled options) at USD
8.13 have been granted on December 18, 2003. These options have been granted
conditional on the approval by TIW's three major shareholders, namely Telesystem
Ltd., XX Xxxxxx and UFI Investment Ltd. If approval is not obtained, it is
expected that the Board will substitute these conditional options by a mix of
stock options and restricted share units (being restricted common shares issued
to employees and directors as fully paid common shares (without cash
consideration to be paid by the employees) as incentive under a Restricted Share
Unit Plan proposed to be adopted by the Board) in an amount representing the
same economic value as the conditional grant of December 18, 2003.
** Note that all options shown in this table are options exercised as of the
date written above, regardless of settlement date. Given that the underlying
common shares to options that are exercised are only recorded as issued in TIW's
shareholders record on the date of settlement, options may appear in this table
as having been exercised notwithstanding that the underlying shares to these
options are not reflected in the amount of outstanding common shares given in
Schedule 5.
*** Note that the Board of Directors of TIW has also conditionally granted
500,000 restricted share units, which will be issued if and when the Restricted
Share Unit Plan is adopted by the Board of Directors and TIW's shareholders.
47
EXHIBIT B TO SCHEDULE 6
INSURANCE COVERAGE (IN USD)
PROPERTY/BUSINESS INTERRUPTION - CZECH REPUBLIC & ROMANIA
Insurer AIG
Limit per Loss $100,000,000
Deductible $500,000
Total Insurable Values $1,963,702,690
BOILER & MACHINERY - CZECH REPUBLIC & ROMANIA
Insurer AIG
Limit per Loss $50,000,000
Property Damage Deductible $500,000
Waiting period for Business Interruption 6X ADV, $500,000 min., except 7 days,
in respect of Machinery Breakdown for
Standby Powers, Electrical Supply,
Digital Equipment & Switching Stations,
min., $500,000
Total Insurable Values $1,963,702,690
EXCESS EARTHQUAKE (ROMANIA)
Insurer Lloyd's
Limit per Loss Excess of $50,000,000 $50,000,000
Insurable Values (Romania) $1,0006,456,561
GENERAL (FOREIGN) LIABILITY
Insurer A.I.U.
Limit $1,000,000
Property Damage Deductible $10,000
Total Number of Sites 5,870
UMBRELLA LIABILITY
Insurer AIG
Limit Excess of underlying $1,000,000 $24,000,000
S.I.R. $10,000
AIRSIDE LIABILITY
Insurer Lloyd's of London
Limit $50,000,000
Number of Airport Sites 11
PRIMARY D&O
Insurer Chubb of Canada Insurance Company
Limit $10,000,000 each loss and policy period
EXCESS D&O
48
Insurer American Home Assurance Company
Limit $10,000,000 each loss and policy
period, in excess of $10,000,000
EXCESS D&O
Insurer ACE INA Insurance
Limit $10,000,000 each loss and policy
period, in excess of $20,000,000
49
SCHEDULE 7
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
50
SCHEDULE 8
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
51
SCHEDULE 9
CERTIFICATE
The undersigned hereby certifies that, as of the date hereof (i) TIW Czech N.V.
has outstanding 787,675 Class A Series 1 shares, with a nominal value of E1 per
share; 1,760,983 Class A Series 2 shares, with a nominal value of E1 per share;
2,468,355 Class B shares, with a nominal value of E1 per share and 1 Class C
shares with a nominal value of E1 per share and (ii) ClearWave N.V. is the
registered holder of 787,675 Class A Series 1 shares, 1,760,983 Class A Series 2
shares and 1 Class C share of TIW Czech N.V. representing 24.2% and 50.8%
economic and voting interests in TIW Czech N.V.
Dated January 6, 2004
/s/ Xxxx Xxx Xxxxxxxxxx
------------------------------
Xxxx Xxx Xxxxxxxxxx
Acting Secretary and Managing
Director, TIW Czeck N.V.
52
CERTIFICATE
The undersigned hereby certifies that, as of the date hereof (i) the attached
document is a true copy of the shareholder's registry of MobiFon S.A., (ii) that
MobiFon S.A. has 100,112,741 shares outstanding, and (iii) that MobiFon Holdings
B.V. is the registered holder of 109,665,055 shares of MobiFon S.A.
Dated January 6, 2004
/s/ Xxxxxxx X. Gordirosom
--------------------------
Xxxxxxx X. Gordirosom
Head of Legal Department
and Secretary, MobiFon S.A.
53
January 8, 2004
This is to certify the following:
- As of September 30, 2003, there was a total of 93 517 127 common shares
outstanding and 35 million preferred shares convertible into 7 million
common shares of Telesystem International Inc. ("TIW"). On a diluted
basis, taking into account only the preferred shares, there were
100 517 127 common shares.
- As of September 30, 2003, there was a total of 6 308 024 outstanding
stock options granted to employees and directors. See attached report
for details on exercise prices.
- As of September 30, 2003, there was also a total of outstanding
Cdn$1 236 500 convertible debentures due December 2006. The debentures
are convertible by holders only at maturity into common shares at a
price of Cdn$22.00 per share. The instrument is also designed to give
TIW the option to retire the debt at maturity with cash or shares,
using the then current share price.
- Following September 30, 2003, 1 374 666 common shares have been issued
to Amaranth in exchange for its shares in ClearWave (October '03) and
659 577 common shares to TIW Asia shareholders (November '03).
/s/ Xxxxxxxx Xxxxxx
----------------------------
Xxxxxxxx Xxxxxx
Secretary
Telesystem International Wireless Inc.
54
CERTIFICATE
The undersigned hereby certifies that, as of the date hereof (i) ClearWave N.V.
has outstanding 45,868,498 Class A subordinate voting shares with a nominal
value of E0.10 per share and 38,230,950 Class B multiple voting shares with a
nominal value of E0.50 per share, (ii) Telesystem International Wireless Inc. is
the registered and beneficial holder of 34,739,313 Class A subordinate voting
shares of ClearWave N.V., representing 41% and 15% equity and voting ownership
interests in ClearWave N.V. respectively and (iii) Telesystem International
Wireless Corporation N.V. is the registered holder of 38,230,950 Class B
multiple voting shares of ClearWave N.V., representing 45.5% and 80.6% equity
and voting ownership interests in ClearWave N.V. respectively.
Dated January 6, 2004
/s/ Xxxx Xxx Xxxxxxxxxx
------------------------------
Xxxx Xxx Xxxxxxxxxx
Acting Secretary and Managing
Director, TIW Czeck N.V.
55
CERTIFICATE
The undersigned hereby certifies that, as of the date hereof (i) MobiFon
Holdings B.V. has outstanding 18,000 common shares with a nominal value of E1
per share and (ii) ClearWave N.V. is the registered holder 18,000 common shares
of MobiFon Holdings B.V.
Dated January 6, 2004
/s/ Xxxx Xxx Xxxxxxxxxx
--------------------------
Xxxx Xxx Xxxxxxxxxx
Acting Secretary and Managing
Director, ClearWave N.V.,
Managing Director of MobiFon
Holdings B.V.
56
CERTIFICATE
The undersigned hereby certifies that, as of the date hereof (i) the attached
document is a true copy of the shareholder's registry of Cesky Mobil a.s., (ii)
that Cesky Mobil a.s. has 6,702,000 common registered shares with a nominal
value of CSK 1,000.00 per share and 10 preference registered shares with a
nominal value of CZK 1,000.00 per share and 625,494,938 common registered shares
with a nominal value of CZK 10 per share, and (iii) that TIW Czech N.V. is the
registered holder of following shares of Cesky Mobil a.s. 6,216,105 common
registered shares with a nominal value of CZK 1,000.00 per share and 10
preference registered shares with a nominal value of CZK 1,000.00 per share and
625,494,938 common registered shares with a nominal value of CZK 10 per share.
Dated January 6, 2004
/s/ Xxxxx Xxxxxx
------------------------------
Xxxxx Xxxxxx
General Counsel
Cesky Mobil a.s.
57
CERTIFICATE
The undersigned hereby certifies that, as of the date hereof (i) MobiFon
Holdings B.V. has outstanding 18,000 common shares with a nominal value of E1
per share and (ii) ClearWave N.V. is the registered holder 18,000 common shares
of MobiFon Holdings B.V.
Dated January 6, 2004
/s/ Xxxx Xxx Xxxxxxxxxx
--------------------------
Xxxx Xxx Xxxxxxxxxx
Acting Secretary and Managing
Director, ClearWave N.V.,
Managing Director of MobiFon
Holdings B.V.
58
TIW NET DEBT (CASH) POSITION (1)
DECEMBER 31, 2003
TIW Corporate(2): ($ 14 159 000)
ClearWave Corporate(3): ($ 7014 000)
MobiFon Holding B.V.(4): $ 000 000 000
(1) Net Debt (Cash) position is defined as funded debt and accounts receivable
(excl. any intercompany account) minus cash, cash equivalents and accounts
payable (excl. any intercompany accounts).
(2) Includes TIW inc. and all of its wholly owned subsidiaries except TIW Asia.
This amount includes all assets held by Global Investment Corporation Trust
("GIC") which is being liquidated to the benefit of TIW Corporate. It also
includes $9.17 million of cash received by TIW Inc. as proceeds from the
exercise of options during the 4th quarter of 2003.
(3) Includes Telesystem International Wireless Services Inc., ClearWave Services
Mauritius and ClearWave N.V.. This amount is net (i.e. reduced) by an amount of
$5327000 which represents the contribution of ClearWave to TIW Czech N.V. to
fund its share of the settlement of the Cesky Mobil put option in February 2004.
(4) This amount includes the accrued interest on the $225 million Senior Notes
as at December 31, 2003.
The undersigned hereby certify that the Net Debt (Cash) position stated above
is, to the best of my knowledge, free of material error.
/s/ Xxxxx Xxxxxxxx
--------------------
Xxxxx Xxxxxxxx
Chief Financial Officer
Telesystem International Wireless Inc.
59
SCHEDULE 10
OPTIONS
PERIOD START: 01-JAN-2004 / PERIOD END: 09-FEB-2004 (OPTIONS EXERCISED UP TO
THIS DATE)
PLAN(S): EMPLOYEE'S STOCK OPTION PLAN AND DIRECTOR'S STOCK OPTION PLAN
AWARD TYPE: OPTIONS ON COMMON SHARES OF TELESYSTEM INTERNATIONAL WIRELESS INC.
WITH EXERCISE PRICE LOWER THAN USD 7.87
BEGINNING OF PERIOD DURING THE PERIOD END OF PERIOD
----------------------------------------------------------------------------------
CANCELLED/
GRANT DATE GRANT NAME XXXXX XXXXX OUTSTANDING GRANTED EXERCISED** EXPIRE OUTSTANDING EXERCISABLE
-----------------------------------------------------------------------------------------------------------------------------------
PLAN NAME:
INITIAL
-----------------------------------------------------------------------------------------------------------------------------------
07-Nov-01 Promotion 7-Nov-2001 $2.60CAD 90 0 0 0 90 68
15-Nov-01 Regular 15-Nov-2001 $6.00USD 53,048 0 15,406 0 37,642 2,105
15-Nov-01 Regular 15-Nov-2001.1 $3.95USD 1,202,565 0 472,857 0 729,708 37,314
15-Nov-01 Regular 15-Nov-2001.2 $5.00USD 36,592 0 15,000 0 21,592 21,592
14-Dec-2001 Regular 14-Dec-2001 $7.85CAD 20 0 0 0 20 15
06-Mar-02 Promotion 6-Mar-2002 $6.15CAD 552 0 0 0 552 0
15-May-2002 Promotion 15-May-2002 $4.90CAD 211 0 0 0 211 211
17-May-2002 Regular 17-May-2002 $5.00USD 36,592 0 36,592 0 0 0
12-Aug-2002 Promotion 12-Aug-2002 $3.45CAD 8,800 0 0 0 8,800 0
12-Nov-02 12-Nov-02 $2.15USD 2,315,873 0 680,400 0 1,635,473 159,082
02-May-2003 Regular 2-May 2003 $2.70CAD 51,000 0 0 0 51,000 0
--------- --- --------- --- ---------
TOTAL 3,705,343 0 1,220,255 0 2,485,088
--------- --- --------- --- ---------
* Note that a total of 3,476,000 stock options (net of cancelled options) at USD
8.13 have been granted on December 18, 2003. These options have been granted
conditional on the approval by TIW's three major shareholders, namely Telesystem
Ltd., XX Xxxxxx and UFI Investment Ltd. If approval is not obtained, it is
expected that the Board will substitute these conditional options by a mix of
stock options and restricted share units (being restricted common shares issued
to employees and directors as fully paid common shares (without cash
consideration to be paid by the employees) as incentive under a Restricted Share
Unit Plan proposed to be adopted by the Board) in an amount representing the
same economic value as the conditional grant of December 18, 2003.
** Note that all options shown in this table are options exercised as of the
date written above, regardless of settlement date. Given that the underlying
common shares to options that are exercised are only recorded as issued in TIW's
shareholders record on the date of settlement, options may appear in this table
as having been exercised notwithstanding that the underlying shares to these
options are not reflected in the amount of outstanding common shares given in
Schedule 5.
*** Note that the Board of Directors of TIW has also conditionally granted
500,000 restricted share units, which will be issued if and when the Restricted
Share Unit Plan is adopted by the Board of Directors and TIW's shareholders.
60
SCHEDULE 11
TIW GROUP CORPORATE STRUCTURE CHART
TIW GROUP
VOTING / EQUITY
[TIW FLOW CHART]
61
SCHEDULE 11
DOLPHIN GROUP STRUCTURE CHART
DOLPHIN GROUP
[UNDER ADMINISTRATION FLOW CHART]
62
EXECUTED and DELIVERED )
as a DEED for and on behalf of )
EEIF Melville B.V. )
EXECUTED and DELIVERED )
as a DEED for and on behalf of )
TELESYSTEM INTERNATIONAL )
WIRELESS INC. )
EXECUTED and DELIVERED )
as a DEED for and on behalf of )
MOBIFON HOLDINGS B.V. )
