EXHIBIT 10.27B
DATED 17 JULY 1997
CONTINENTAL COMMUNICATIONS LIMITED
and
INTERNATIONAL WIRELESS COMMUNICATIONS PAKISTAN LIMITED
____________________________________________________________
SHARE PURCHASE AGREEMENT
____________________________________________________________
Ref: H53/30657093/A001CCL7.DOC
INDEX
CLAUSE HEADING PAGE
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1. Definitions 1
2. Purchase and Sale of the Sale Shares 3
3. Representations and Warranties Concerning the Transaction 4
4. Representations and Warranties Concerning the Company 6
5. Further Provisions relating to the Seller's Representations
and Warranties 9
6. Pre-Closing Covenants 9
7. Post-Closing Covenants 10
8. Conditions to Xxxxxxxxxx xx Xxxxx 00
0. Remedies for Breach of this Agreement 12
10. Termination 14
11. Arbitration 15
12. Miscellaneous 15
SCHEDULES
A: Financial statements
B: Licence
EXHIBITS
A - Restated and Amended Shareholders Agreement
SHARE PURCHASE AGREEMENT
Agreement entered into on 17 July, 1997, by and among Continental
Communications Limited a company established under the laws of the Republic
of Ireland ("Seller") and International Wireless Communications Pakistan
Limited, a company established under the laws of Mauritius (the "Buyer").
Buyer and Seller are referred to collectively herein as the "Parties".
RECITALS
Pakistan Mobile Communications (Pvt) Ltd. is a limited liability company
organised under the laws of Pakistan (the "Company") with an authorised share
capital of Rupees 600,000,000 divided into 60,000,000 shares of Rupees 10
each, of which 54,387,000 shares have been issued and are fully paid up
("Shares"). The Company owns and operates a cellular mobile telephone company
in Pakistan under the service xxxx Mobilink/a Motorola Network.
Seller owns 7,989,560 Shares and pursuant to the terms and conditions of this
Agreement Seller desires to sell, and Buyer desires to purchase all of such
Shares (the "Sale Shares") representing 14.69% of the total issued Shares.
Contemporaneously herewith, the Buyer is negotiating the purchase of an
additional 31.31% of the Shares together with an option to purchase a further
12.69% of the Shares, such percentage representing part of the interest in
the Company held by Motorola International Development Corporation
("Motorola").
Now, therefore, in consideration of the mutual agreements, representations,
warranties, and covenants herein contained, the Parties agree as follows:
1. DEFINITIONS
"Adverse Consequences" means all actions, suits,
proceedings, hearings,
investigations, charges,
complaints, claims, demands,
injunctions, judgments, orders,
decrees, rulings, damages, dues,
penalty, fines, costs,
reasonable amounts paid in
settlement, liabilities,
obligations, taxes, liens,
losses, expenses, and fees,
including court costs and
lawyers' and advocates' fees and
expenses.
"Affiliated Entity" means any Person with respect to
which a specified Person owns a
majority of the
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common stock or equity interests or
has the power to vote or direct the
voting of sufficient securities
to elect a majority of the board
of directors or similar
governing body of such Person.
"Buyer" has the meaning set forth in the
preface above.
"Closing" has the meaning set forth in
clause 2(c) below.
"Closing Date" means the day on which the
Closing shall take place.
"Company" has the meaning set forth in the
preface above.
"Condition of the Company" means the property, condition
(financial or otherwise),
business or operations of the
Company.
"Confidential Information" means any information concerning
the businesses and affairs of
the Company that is not already
generally available to the
public.
"Financial Statements" has the meaning set forth in
clause 4(e) below.
"GOP" means the Government of Pakistan
and any agency, department
and/or instrumentality thereof.
"Licence" means the licence grant from the
Ministry of Communications of
the Government of Pakistan
issued on 6th July, 1992, as
amended on 27th October, 1993,
pursuant to which the Company
operates a cellular mobile
telephone system in Pakistan.
"Motorola" has the meaning set forth in the
preface above.
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"Party" as the meaning set forth in the
preface above.
"Person" means an individual, a
partnership, a corporation, an
association, a joint stock
company, a trust, a joint
venture, an unincorporated
organisation, or a governmental
entity (or any department,
agency, or political subdivision
thereof).
"Purchase Price" has the meaning set forth in
clause 2(b) below.
"Saif" means Saif Telecom (Pvt)
Limited, a Pakistan company and
the direct owner of 11.31% of
the Shares.
"Seller" has the meaning set forth in the
preface above.
"Shareholders' Agreement" means the Shareholders'
Agreement between the Seller and
Saif executed on 3rd June, 1993
as amended pursuant to the
Equity Ownership Agreement dated
2nd July 1996 between Seller,
Saif and CCL.
"SBP" means the State Bank of
Pakistan.
2. PURCHASE AND SALE OF THE SALE SHARES
(a) BASIC TRANSACTION
On and subject to the terms and conditions of this
Agreement, Buyer agrees to purchase from Seller, and
Seller agrees to sell to Buyer, the Sale Shares for the
consideration specified below in this clause 2.
(b) PURCHASE PRICE
Buyer shall pay to Seller at the Closing, except as
provided in clause 2(c) below, the aggregate price of 10
million United States Dollars (US$10 million) (the
"Purchase Price") in cash by wire transfer in immediately
available funds to Seller's bank account as shall be
nominted by Seller prior to Closing and shall procure the
allotment or transfer to Seller (or such other person as
Seller may nominate) 493,510 newly issued shares ("IWC
Shares") of common stock of International Wireless
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Communications Holdings, Inc ("IWC"), such IWC Shares to
be held on and subject to and with the benefit of the
terms of the letter dated June 18, 1997 from IWC to
Xxxxx-Xxxxxx Limited and the term sheet referred to
therein.
(c) THE CLOSING
The closing of the transaction contemplated by this
Agreement (the "Closing") shall take place at the offices
of Motorola International Development Corporation in
London, in the United Kingdom, commencing at 3:00 p.m.
local time on or before 14th August, 1997, contingent
upon the Parties being satisfied or having waived in
writing all conditions to the obligations of the Parties
to consummate the transaction contemplated thereby (other
than conditions with respect to actions the respective
Parties will take at the Closing itself). The Closing
Date may be extended by Buyer to 16th September, 1997 and
thereafter only by mutual agreement of the Parties.
(d) DELIVERIES AT THE CLOSING
At the Closing, (i) Seller will deliver to Buyer the
various certificates, instruments, and documents referred
to in clause 8(a) below, (ii) Buyer will deliver to
Seller the various certificates, instruments, and
documents referred to in clause 8(b) below, (iii) Seller
will deliver to the Buyer the stock certificates
totalling 7,989,036 Shares equal to a 14.69% interest in
the Company validly issued to Seller and SBP-approved for
export out of Pakistan, endorsed in blank or accompanied
by duly executed transfer documents, and (iv) Buyer will
deliver to Seller the consideration specified in clause
2(b) above.
3. REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION
(a) REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to Buyer that:
(i) ORGANISATION OF SELLER
Seller is duly organised, validly existing, and in
good standing under the laws of the jurisdiction
of its incorporation.
(ii) AUTHORISATION OF TRANSACTION
Seller has full corporate power and authority to
execute and deliver this Agreement and to perform
its obligations hereunder.
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This Agreement constitutes the valid and legally
binding obligation of the Seller, enforceable in
accordance with its terms and conditions. There
are no authorizations, consents, or approvals that
Seller must obtain from the GOP, including the
SBP, prior to Closing, in order to consummate the
transactions contemplated by this Agreement.
(iii) OWNERSHIP OF SALE SHARES
Seller is the lawful holder of record and
beneficial owner of the Sale Shares, free and
clear of any liens, claims, restrictions sale and
security interests, and has full legal right
subject to the Shareholders' Agreement to sell,
transfer, and convey the Sale Shares pursuant to
this Agreement; the delivery of the Sale Shares to
the Buyer will transfer good and valid title
thereto, free and clear of any liens, claims,
restrictions and security interests. The Sale
Shares are held by Seller on a fully repatriable
basis both as to capital, all accretions thereto
and dividends payable thereon.
(iv) NONCONTRAVENTION
Neither the execution and the delivery of this
Agreement, nor the consummation of the
transactions contemplated hereby, will (A) violate
any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling,
charge, or other restriction of any government,
governmental agency, or court to which Seller is
subject or any provision of its charter or bylaws
or (B) conflict with, result in a breach of,
constitute a default under, result in the
acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or
require any notice under any agreement, contract,
lease, license, instrument, or other arrangement
to which the Seller is a party or by which it is
bound or to which any of its assets is subject,
except with respect to the restrictions on
transfer of Shares under the Shareholders'
Agreement. Seller has obtained a waiver from Saif
and Motorola International Development Corporation
with respect to Clauses 11.4 and 11.5 of the
Shareholders' Agreement, permitting the Parties
hereto to proceed with the transaction
contemplated hereunder.
(v) BROKERS' FEES
Seller has no liability or obligation to pay any
fees or commissions to any broker, finder, or
agent with respect to the transactions
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contemplated by this Agreement for which the Buyer
could become liable or obligated.
(vi) STATEMENTS COMPLETE AND CORRECT
The statements contained in this clause 3(a) are
true, correct and complete as of the date of this
Agreement and will be true, correct and complete
as of the Closing Date (as though made then and as
though the Closing Date were substituted for the
date of this Agreement throughout this clause
3(a)).
(b) REPRESENTATIONS AND WARRANTIES OF THE BUYER
Buyer represents and warrants to Seller that:
(i) ORGANISATION OF THE BUYER
Buyer is a corporation duly organised,
validly existing, and in good standing
under the laws of the jurisdiction of its
incorporation.
(ii) AUTHORISATION OF TRANSACTION
Buyer has full corporate power and
authority to execute and deliver this
Agreement and to perform its obligations
hereunder. This Agreement constitutes the
valid and legally binding obligation of
the Buyer, enforceable in accordance with
its terms and conditions. There are no
authorisations, consents, or approvals
that Buyer must obtain from the GOP,
including the SBP, prior to Closing, in
order to consummate the transactions
contemplated by this Agreement.
(iii) NONCONTRAVENTION
Neither the execution and the delivery of
this Agreement, nor the consummation of
the transactions contemplated hereby, will
(A) violate any constitution, statute,
regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other
restriction of any government,
governmental agency, or court to which
Buyer is subject or any provision of its
charter or by-laws or (B) conflict with,
result in a breach of, constitute a
default under, result in the acceleration
of, create in any party the right to
accelerate, terminate, modify, or cancel,
or require any notice under any agreement,
contract, lease, licence, instrument, or
other
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arrangement to which the Buyer is a party
or by which it is bound or to which any
of its assets is subject.
(iv) BROKERS' FEES
The Buyer has no liability or obligation
to pay any fees or commissions to any
broker, finder, or agent with respect to
the transactions contemplated by this
Agreement for which Seller could become
liable or obligated.
(v) STATEMENTS COMPLETE AND CORRECT
The statements contained in this clause
3(b) are true, correct and complete as of
the date of this Agreement and will be
true, correct and complete as of the
Closing Date (as though made then and as
though the Closing Date were substituted
for the date of this Agreement throughout
this clause 3(b)).
4. REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY
The Seller represents and warrants to Buyer that to the best
of its knowledge and belief:
(a) ORGANISATION, QUALIFICATION AND CORPORATE POWER
The Company is a limited liability company duly
organised, validly existing, and in good standing under
the laws of Pakistan, and is duly authorised to conduct
the business in which it is engaged and to own and use
the properties owned and used by it.
(b) CAPITALISATION
The entire authorised share capital of the Company
consists of 60,000,000 Shares, all one class, of which
54,387,750 are validly issued. All of the validly issued
and outstanding Shares have been duly authorised, are
fully paid and are held of record by the Seller, Motorola
and Saif with each of them holding a 14.69%, 74% and
11.31% interest, respectively, in the Company. There are
no outstanding or authorised options, warrants, purchase
rights, subscription rights, conversion rights, exchange
rights, or other contracts or commitments that could
require the Company to issue, sell, or otherwise cause to
become outstanding any of its share capital. There are
no outstanding or authorised stock appreciation, phantom
stock, profit participation, or similar rights with
respect to the Company.
(c) SUBSIDIARIES
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The Company has no, and never has had any, subsidiaries.
(d) NONCONTRAVENTION
Neither the execution nor the delivery of this Agreement,
nor the consummation of the transactions contemplated
hereby, will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government,
governmental agency, or court to which the Company is
subject or any provision of the charter or by-laws of the
Company or (iii) conflict with, result in a breach of,
constitute a default under, result in the acceleration
of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under
any agreement, contract, lease, licence, instrument, or
other arrangement to which the Company is a party or by
which it is bound or to which any of its assets is
subject (or result in the imposition of any security
interest upon any of its assets). To the Seller's
knowledge the Company does not need to give any notice
to, make any filing with, or obtain any authorisation,
consent, or approval of any government or governmental
agency prior to the Closing in order for the parties to
consummate the transactions contemplated by this
Agreement.
(e) FINANCIAL STATEMENTS
Schedule A contains the following financial statements
(collectively the "Financial Statements"): audited
balance sheets and statements of income, and cash flow as
of and for the fiscal years ended 31st December, 1995,
and 31st December, 1996 for the Company. The Financial
Statements (including the notes thereto) have been
prepared in accordance with accounting principles
generally accepted in Pakistan and applied on a
consistent basis throughout the periods covered thereby,
comply with the requirements of Pakistan law and present
fairly the financial condition of the Company as of such
dates and the results of operations of the Company for
such periods.
(f) MEMORANDUM AND ARTICLES OF ASSOCIATION
The Seller has heretofore delivered to Buyer true
and complete copies of the Memorandum and Articles of
Association of the Company.
(g) OFFICERS, DIRECTORS AND KEY EMPLOYEES; EMPLOYEE RELATIONS
There is not now threatened, a strike, picket, work
stoppage, work slowdown or other labour trouble or
similar event by any employee of the Company.
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(h) ARRANGEMENTS WITH DIRECTORS AND CONNECTED PERSONS
There is not outstanding:
(i) any loan made by the Company to, or debt owing to
the Company by, any director of the Company or any
person connected with any of them;
(ii) any agreement or arrangement to which the Company
is a party and in which any director of the
Company or any person connected with any of them
is interested.
(i) THE LICENCE
A true, complete and accurate copy of the Licence
is annexed in Schedule B hereto. The Licence is
in full force and effect and validly subsisting
and there do not exist any circumstances which
might lead to the revocation of the Licence or any
amendment or variation of its terms. The Seller
has disclosed to Buyer that the Pakistan
Telecommunication Authority has the competence to
reissue the Licence under the provisions of the
Pakistan Telecommunication Xxx 0000 and the Seller
is unaware of any circumstances in which the
Licence will not be reissued on terms no less
favourable to the Company.
(j) POSITION SINCE 31ST DECEMBER, 1996
Since 31st December, 1996:
(i) no dividend or other distribution has been
declared, paid or made by the Company;
(ii) the business of the Company has been
carried on in the ordinary course and so
as to maintain it as a going concern; and
(iii) the Company has not acquired or disposed
of or agreed to acquire or dispose of any
business or any material asset other than
trading stock in the ordinary course of
business.
5. FURTHER PROVISIONS RELATING TO THE SELLER'S REPRESENTATIONS
AND WARRANTIES
(a) Each of the representations and warranties of the Seller
in clause 4 shall be construed as a separate
representation and warranty and shall not be otherwise
limited or restricted by reference to or inference from
the terms
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of any other representation and warranty or any other
term of this Agreement.
(b) Buyer shall be entitled to claim both before and after
Closing that any of the representations and warranties of
the Seller is or was untrue or misleading or has been
breached even if Buyer discovered or could have
discovered before Closing that the representation or
warranty in question was untrue or misleading or had been
breached and Closing shall not in any way constitute a
waiver of Buyer's rights.
(c) The rights and remedies of Buyer in respect of any breach
of the representations and warranties of the Seller shall
not be affected by Closing, by any investigation made by
or on behalf of Buyer into the affairs of the Company, by
the giving of time or other indulgence by Buyer to any
person, by Buyer rescinding or not rescinding this
Agreement or by any other cause whatsoever except a
specific waiver or release by the Buyer in writing; and
any such waiver or release shall not prejudice or affect
any remaining rights or remedies of the Buyer.
6. PRE-CLOSING COVENANTS
(a) GENERAL
The parties agree as follows with respect to the period
between the execution of this Agreement and the Closing
each of the parties will use its reasonable best efforts
to take all actions and to do all things necessary in
order to consummate and make effective the transactions
contemplated by this Agreement (including satisfaction,
but not waiver, of the closing conditions set forth in
clause 8 below).
(b) NOTICE OF DEVELOPMENTS
In the period between the execution of this Agreement and
the Closing, each Party will give prompt written notice
to the other Party of any material adverse development
causing a breach of any of its own representations and
warranties in clause 3 above, and Seller shall notify
Buyer of any development causing a breach of any of the
representations and warranties in clause 4 above. Unless
Buyer has the right to terminate this Agreement pursuant
to clause 10(a)(ii) below by reason of such development
and exercises that right within the period of 10 business
days referred to in clause 10(a)(ii) below, the written
notice pursuant to this clause 6(b) will be deemed to
have amended any applicable Schedule, to have qualified
the representations and warranties contained in clause 4
above, and to have cured any misrepresentation or breach
of warranty that otherwise might have existed hereunder
by reason of the development.
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7. POST-CLOSING COVENANTS
In case at any time after the Closing any further action is
necessary or desirable to carry out the purposes of this
Agreement, each of the Parties will take such further action
(including the execution and delivery of such further
instruments and documents) as any other Party reasonably may
request, all at the sole cost and expense of the requesting
Party (unless the requesting Party is entitled to
indemnification therefor under clause 9 below), except where
such action is undertaken solely on behalf or to facilitate
any necessary action required of the other Party, in which
event the other Party shall be liable for reimbursing the
costs and expenses of the requesting Party.
8. CONDITIONS TO OBLIGATION TO CLOSE
(a) CONDITIONS TO OBLIGATION OF BUYER
The obligation of Buyer to consummate the transactions to
be performed by it in connection with the Closing is
subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in
clause 3(a) and clause 4 above shall be true and
correct at and as of the Closing Date;
(ii) Seller shall have performed and complied with all
of its covenants hereunder required to be
performed or complied with by Seller on or before
the Closing Date in all material respects through
the Closing;
(iii) there shall not be any injunction, judgment,
order, decree, ruling or charge in effect
preventing consummation of any of the transactions
contemplated by this Agreement;
(iv) approval of the transfers to Buyer of the Sale
Shares by majority vote of the Company's Board of
Directors at a meeting of such Board, to occur at
the Closing, followed by the resignation of one of
the directors representing Seller on the Company's
Board of Directors, effective as of the Closing
Date;
(v) Seller shall have delivered to Buyer a certificate
of the Secretary of Seller to the effect that each
of the conditions specified above in clause
8(a)(i)-(iv) is satisfied;
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(vi) Buyer shall have received from counsel to Seller
an opinion in form and substance reasonably
satisfactory to Buyer, addressed to Buyer, and
dated as of the Closing Date;
(vii) all actions to be taken by Seller in connection
with consummation of the transactions contemplated
hereby and all certificates, opinions, instruments
and other documents required to effect the
transactions contemplated hereby will be
reasonably satisfactory in form and substance to
Buyer. There shall have been no material adverse
change or any development involving a prospective
material adverse change, in the Condition of the
Company;
(viii) Buyer having completed its business, accounting
and legal investigation and examination of the
Company and being satisfied with the results
thereof; and
(ix) Buyer having completed its acquisition of the
Shares representing a 31.31% interest in the
Company from Motorola referred to in the preface
above.
Buyer may waive any condition specified in this clause
8(a) in writing at or prior to the Closing.
(b) CONDITIONS TO OBLIGATION OF SELLER
The obligation of Seller to consummate the transactions
to be performed by it in connection with the Closing is
subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in
clause 3(b) above shall be true and correct in all
material respects at and as of the Closing Date;
(ii) Buyer shall have performed and complied with all
of its covenants hereunder required to be
performed or complied with by Buyer on or before
the Closing Date in all material respects through
the Closing;
(iii) there shall not be any injunction, judgment,
order, decree, ruling or charge in effect
preventing the Buyer from consummating any of the
transactions contemplated by this Agreement;
(iv) Buyer shall have delivered to Seller a certificate
to the effect that each of the conditions
specified above in clause 8(b)(i)-(iii) is
satisfied;
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(v) Seller shall have received from counsel to Buyer
an opinion in form and substance reasonably
satisfactory to Seller, addressed to Seller, and
dated as of the Closing Date; and
(vi) all actions to be taken by Buyer in connection
with consummation of the transactions contemplated
hereby and all certificates, opinions,
instruments, and other documents required to
effect the transactions contemplated hereby will
be reasonably satisfactory in form and substance
to Seller.
Seller may waive any condition specified in this clause
8(b) in writing at or prior to the Closing.
(c) CONDITIONS APPLICABLE TO BOTH BUYER AND SELLER
The obligation of both Buyer and Seller to consummate the
transaction pursuant to this Agreement shall be subject
to the further conditions that:-
(i) the Company shall have adopted the Articles of
Association in form and substance reasaonably
satisfactory to the Parties and reflecting, as
applicable, the provisions of the Restated and
Amended Shareholders Agreement referred to below,
in substitution for its existing articles of
association;
(ii) the relevant parties shall have entered into a
Restated and Amended Shareholders' Agreement in
the form of Exhibit A attached hereto and the same
shall be in full force and effect as at the
Closing Date.
9. REMEDIES FOR BREACHES OF THIS AGREEMENT
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All of the representations and warranties of the Parties
in clause 3 and of the Seller contained in clause 4 above
shall survive the Closing hereunder and shall continue in
full force and effect subject to the provisions of
paragraph (b) of this clause.
(b) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE BUYER:
(i) In the event the Seller breaches any of its
representations, warranties and covenants
contained herein (other than the representations
and warranties in clause 3(a) above), and,
provided that Buyer makes a written claim for
indemnification against Seller
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pursuant to clause 12(g) below prior to 31st
December, 1999, then the Seller shall indemnify
Buyer from and against any Adverse Consequences
Buyer shall suffer originating prior to and
continuing through and after the date of the
claim for indemnification caused by the breach.
There shall be no indemnification for any Adverse
Consequences Buyer shall suffer where written
notice of the claim is first made after 31st
December, 1999. The Seller shall not have any
obligation to indemnify Buyer from and against
any Adverse Consequences caused by the breach of
any representation or warranty of the Seller
contained in clause 4 above unless the amount
of Buyer's claim in respect thereof, when
aggregated with one or more other claims brought
against Seller hereunder, exceeds two hundred
thousand United States Dollars (US$200,000). The
maximum liability of the Seller for a breach of
any of his representations, warranties and
covenants contained herein shall be limited to an
amount equal to the aggregate of 50% of the
Purchase Price.
(ii) In the event the Seller breaches any of his
representations and warranties in clause 3(a)
above, provided that Buyer makes a written claim
for indemnification against the Seller pursuant to
clause 12(g) below prior to the first anniversary
of the Closing Date, then the Seller shall
indemnify Buyer from and against the entirety of
any Adverse Consequences Buyer shall suffer
through and continuing after the date of the claim
for indemnification caused by the breach, without
regard to the monetary limit set forth above in
clause 9(b)(i). There shall be no indemnification
for any Adverse Consequences Buyer shall suffer
where written notice of the claim is first made
after the first anniversary of the Closing Date.
(c) INDEMNIFICATION PROVISIONS FOR BENEFIT OF SELLER
In the event Buyer breaches any of its representations,
warranties, and covenants contained herein, and provided
that Seller makes a written claim for indemnification
against Buyer pursuant to clause 12(g) below prior to the
first anniversary of the Closing Date, then Buyer agrees
to indemnify Seller from and against the entirety of any
Adverse Consequences Seller shall suffer through and
continuing after the date of the claim for
indemnification caused by the breach. There shall be no
indemnification for any Adverse Consequences Seller shall
suffer where written notice of the claim is first made
after the first anniversary of the Closing Date.
(d) DETERMINATION OF ADVERSE CONSEQUENCES
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The indemnification provisions in this clause 9 are in
addition to, and not in derogation of, any statutory,
equitable, or common law remedy any Party may have for
breach of representation, warranty, or covenant.
10. TERMINATION
(a) Termination of Agreement
The Parties may terminate this Agreement as provided
below:
(i) Buyer and Seller may terminate this Agreement by
mutual written consent at any time prior to the
Closing;
(ii) Buyer may terminate this Agreement by giving
written notice to Seller at any time prior to the
Closing in the event (A) Seller has within the
then previous ten (10) business days given Buyer
any notice pursuant to clause 6(b) above and (B)
the development that is subject of the notice has
had or is likely to have a material adverse effect
upon the Condition of the Company or the
consummation of the transactions contemplated
hereby;
(iii) Buyer may terminate this Agreement by giving
written notice to Seller at any time prior to the
Closing (A) in the event the Seller has breached
any of his representations, warranties, or
covenants contained in this Agreement in any
material respect, Buyer has notified the Seller of
such breach, and the breach, if capable of cure,
has continued without cure for a period of 10 days
after the notice of breach, or (B) if the Closing
shall not have occurred on or before 16th
September, 1997, by reason of the failure of any
condition precedent under clause 8(a) hereof
(unless the failure results primarily from the
Buyer itself breaching any of its representations,
warranties, or covenants contained in this
Agreement); and
(iv) Seller may terminate this Agreement by giving
written notice to Buyer at any time prior to the
Closing (A) in the event Buyer has breached any of
its representations, warranties, or covenants
contained in this Agreement in any material
respect, Seller has notified Buyer of such breach,
and the breach if capable of cure has continued
without cure for a period of 10 days after the
notice of breach, or (B) if the Closing shall not
have occurred on or before 16th September,1997, by
reason of the failure of any condition precedent
under clause 8(b) hereof (unless the failure
results primarily the Seller itself breaching any
of its
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representations, warranties, or covenants contained
in this Agreement).
(b) EFFECT OF TERMINATION
If any Party terminates this Agreement pursuant to clause
10(a) above, all rights and obligations of the Parties
hereunder shall terminate without any liability of any
Party to the other Party, except for any liability of any
Party then in breach provided, however, that the
provisions of clause 11 and clause 12 shall survive
termination.
11. ARBITRATION
The Parties shall attempt to resolve all disputes under this
Agreement through amicable discussions and consultations. In
the event that they are unable to resolve any differences the
matter shall be referred to final and binding arbitration in
accordance with the following: Any dispute arising out of or
in connection with this Agreement, including any questions
regarding its existence, validity, breach or termination,
shall be referred to and finally resolved by arbitration in
London in accordance with the Rules for the time being in
force of the International Chamber of Commerce, which rules
are deemed to be incorporated into this Agreement. The
tribunal shall consist of three (3) arbitrators, with each
side to the dispute choosing one arbitrator and such two
arbitrators choosing the third. If within 30 days any of the
parties to the dispute has not selected its arbitrator, or the
two arbitrators have been unable to agree on the selection of
the third arbitrator, such arbitrator shall be chosen by the
ICC. The third arbitrator shall serve as the chairperson of
the arbitration panel. The language of the arbitration shall
be English.
12. MISCELLANEOUS
(a) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS
No Party shall issue any press release or make any public
announcement relating to the subject matter of this
Agreement prior to the Closing without the prior written
approval of Buyer and Seller; provided, however, that any
Party may make any public disclosure it believes in good
faith is required by applicable law or any listing or
trading agreement concerning its publicly-traded
securities (in which case the disclosing Party will use
its reasonable best efforts to advise the other Parties
prior to making the disclosure).
(b) NO THIRD PARTY BENEFICIARIES
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This Agreement shall not confer any rights or remedies
upon any Person other than the Parties and their
respective successors and permitted assigns.
(c) Entire Agreement
This Agreement (including the documents referred to
herein) constitutes the entire agreement among the
Parties and supersedes any prior understanding,
agreements, or representations by or among the Parties,
written or oral, to the extent they related in any way to
the subject matter hereof.
(d) Succession and Assignment
This Agreement shall be binding upon and inure to the
benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign
either this Agreement or any of his or its rights,
interests, or obligations hereunder without the prior
approval of Buyer and Seller.
(e) Counterpart
This Agreement may be executed in one or more
counterpart, each of which shall be deemed an original
but all of which together will constitute one and the
same instrument.
(f) Headings
The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any
way the meaning or interpretation of this Agreement.
(g) Notices
All notices, requests, demands, claims, and other
communications hereunder will be in writing, deemed duly
given (and received five days after) if sent by
registered or certified mail, return receipt requested,
postage prepaid, and addressed to the intended recipient
as set forth below:
If to Seller: Continental Communications Limited
XX Xxx 000
2-6 Church Street
St. Helier, Jersey
Channel Islands JE4 8QD
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If the Buyer: Xxxx XxXxxxx
Vice-Chairman
International Wireless Communications, Inc.
00/X, Xxx Xxxx Xxx Xxxxxx
00 Xxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Xxxx Xxxx
Executive Director
Asian Infrastructure Fund Advisers Limited
Xxxxx 0000-00
Xxxx Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Any Party may send any notice, request, demand, claim or
other communication hereunder to the intended recipient
at the address set for the above using any other means
(including personal delivery, expedited courier,
messenger service, telecopy, telex, ordinary mail, or
electronic mail), but no such notice, request, demand,
claim, or other communication shall be deemed to have
been fully duly given unless and until it actually is
received by the intended recipient. Any Party may change
the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by
giving the other Parties notice in the manner herein set
forth.
(h) GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of England without giving effect
to any choice or conflict of law provision or rule that
would cause the application of the laws of any
jurisdiction other than that of England.
(i) AMENDMENTS AND WAIVERS
No amendment of any provision of this Agreement shall be
valid unless the same shall be in writing and signed by
Buyer and Seller. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by
virtue of any prior or subsequent such occurrence.
(j) SEVERABILITY
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Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any
other situation or in any other jurisdiction.
(k) EXPENSES
Each of Buyer and Seller will bear its own costs and
expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions
contemplated hereby.
(l) CONSTRUCTION
The Parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises,
this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof
shall arise favoring or disfavoring any Party by virtue
of the authorship of any of the provisions of this
Agreement. Any reference to any federal, state, local,
or foreign statute or law shall be deemed also to refer
to all rules and regulations promulgated thereunder,
unless the context requires otherwise. The word
"including" shall mean including without limitation.
(m) INCORPORATION OF ANNEXES, SCHEDULES AND EXHIBITS
The Annexes, Schedules and Exhibits identified in this
Agreement are incorporated herein by reference and made a
part hereof.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
on the date first above written.
Continental Communications Limited
By: /s/
------------------------------------------------
Title:
---------------------------------------------
Witnessed by: 1. /s/
-------------------------------
2. /s/
-------------------------------
International Wireless Communications Pakistan Limited
By: /s/ Xxxxxxx Xxxxx /s/ Xxxxx Xxxxx
------------------------------------------------
Title: Director Director
---------------------------------------------
Witnessed by: 1. /s/
-------------------------------
2. /s/
-------------------------------
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