POST-IPO SHAREHOLDERS' AGREEMENT # 1
THIS POST-IPO SHAREHOLDERS' AGREEMENT # 1 (this "Agreement") is made and
entered into on and as of -, 1999 by and among (i) NETIA HOLDINGS S.A.,
(formerly R.P. Telekom S.A.), a company organized and existing under the laws of
the Republic of Poland with its headquarters at xx. Xxxxxxxx 00, 00-000 Xxxxxx.
Xxxxxx (the "Company"), (ii) XXXXXXX INVESTMENTS LIMITED, a public company
incorporated under the laws of Israel ("Xxxxxxx"), (iii) TREFOIL CAPITAL
INVESTORS L.P., a limited partnership organized under the laws of Delaware
("Trefoil"), (iv) SHAMROCK HOLDINGS, INC., a corporation organized under the
laws of Texas ("Shamrock"), (v) TELIA AB (publ.), a company organized under the
laws of the Kingdom of Sweden ("Telia") and (vi) (a) WARBURG, XXXXXX EQUITY
PARTNERS, L.P., a Delaware limited partnership ("WPEP"), (b) WARBURG, XXXXXX
VENTURES INTERNATIONAL, L.P., a Bermuda limited partnership ("WPVI"), (c)
WARBURG PINCUS NETHERLANDS EQUITY PARTNERS 1, C.V., a Dutch limited partnership
("WPNE I"), (d) WARBURG PINCUS NETHERLANDS EQUITY PARTNERS 11, C.V., a Dutch
limited partnership ("WPNE II") and (e) WARBURG PINCUS NETHERLANDS EQUITY
PARTNERS 111, C.V., a Dutch Limited partnership ("WPNE III" and, together with
WPEP, WPVI, WPNE I and WPNE 11, the "WP Entities" and each individually a "WP
Entity"). Xxxxxxx, Trefoil, Shamrock, Telia and the WP Entities are collectively
referred to as the "Shareholders" and each individually a "Shareholder", and the
Company and the Shareholders are collectively referred to as the "Parties" and
each individually a "Party".
WITNESSETH
WHEREAS, the Company, Xxxxxxx, Trefoil, Shamrock, GS Capital Partners L.P.,
Stone Street Fund 1994, L.P., Bridge Street Fund 1994, L.P. (the latter three
parties collectively referred to as the "GS Entities"), Telia and the WP
Entities are parties to a Pre-IPO Shareholders' Agreement, dated as of .., 1999
(the "Pre-IPO Shareholders' Agreement"), pursuant to which the Parties have
agreed, among other things, to enter into a Post-IPO Shareholders' Agreement # I
and a Post-IPO Shareholders' Agreement # 2 upon the occurrence of the Initial
Public Offering, as defined therein, to set forth herein their mutual
understandings regarding the relations among them, and their respective rights
and obligations, with respect to the Company;
WHEREAS, the Initial Public Offering, as defined in the Pre-IPO
Shareholders' Agreement, has been completed;
NOW, THEREFORE, in consideration of the promises and mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. MANAGEMENT OF THE COMPANY AND ITS SUBSIDIARIES
1.1 Management of the Company. The statutes of the Company shall be amended
and restated in substantially the form attached hereto as Exhibit A (the
"Post-IPO Statute"), and shall provide for both a management board and a
supervisory board, the composition of which shall be established according to
the Post-IPO Statute and representation on which shall be established in
accordance with this Section 1.1 and the Polish Commercial Code.
1.1.1. Supervisory Board. The supervisory board of the Company (the
"Supervisory Board") shall consist of eleven (11) members, subject to
adjustment as provided below, and shall be organized, have responsibilities
and be designated in accordance with the following:
(a) Representation on the Supervisory Board.
(i) The DTG Supervisory Board Members.
(A) As long as any one or all of Xxxxxxx, Trefoil,
Shamrock and the GS Entities (collectively, the "DT
Shareholders") and their Permitted Controlled Affiliate
Transferees (as defined herein), in the aggregate, own
Shares of the Company ("Shares") constituting ten percent
(10%) or more of the outstanding voting securities, then
Xxxxxxx, Trefoil and Shamrock, acting together, shall have
the right to appoint three (3) members of the Supervisory
Board (the "Xxxxxxx/Shamrock Supervisory Board Members").
(B) As long as the DT Shareholders and their Permitted
Controlled Affiliate Transferees, in the aggregate, own
Shares constituting five percent (5%) or more, but less than
ten percent (10%), of the outstanding voting securities of
the Company, then the Xxxxxxx, Trefoil and Shamrock, acting
together, shall have the right to appoint two (2)
Xxxxxxx/Shamrock Supervisory Board Members.
(ii) The Telia Supervisory Board Members.
(A) As long as Telia and its Permitted Controlled
Affiliate Transferees own Shares constituting ten percent
(10%) or more of the outstanding voting securities of the
Company, then Telia shall have the right to appoint three
(3) members of the Supervisory Board (the "Telia Supervisory
Board Members").
(B) As long as Telia and its Permitted Controlled
Affiliate Transferees own Shares constituting five percent
(5%) or more, but less than ten percent (I 0%), of the
outstanding voting
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securities of the Company, then Telia shall have the right
to appoint two (2) Telia Supervisory Board Members.
(iii) The WP Supervisory Board Members.
As long as the WP Entities and their Permitted
Controlled Affiliate Transferees, in the aggregate, own
Shares constituting five percent (5%) or more of the
outstanding voting securities of the Company, then the WP
Entities shall have the right to appoint one (1) member of
the Supervisory Board (the "WP Supervisory Board Member").
(iv) If at any time the Shares owned by (A) the DT
Shareholders and their Permitted Controlled Affiliate
Transferees, (13) Telia and its Permitted Controlled Affiliate
Transferees, or (C) the WP Entities and their Permitted
Controlled Affiliate Transferees, respectively, decreases for any
reason to less than five percent (5%) of the outstanding voting
securities of the Company, then from such time, the DT
Shareholders, Telia or the WP Entities, as the case may be, shall
cease to have the right to appoint, respectively, any
Xxxxxxx/Shamrock Supervisory Board Members, Telia Supervisory
Board Members or WP Supervisory Board Member or to participate in
the appointment of the Jointly-Agreed Supervisory Board Member
referred to in Clause (v) below.
(v) The remaining four (4) members of the Supervisory Board
shall be elected by the General Assembly of the Company's
shareholders (the "General Assembly"), provided, that, as long as
the WP Entities and their Permitted Controlled Affiliate
Transferees, in the aggregate, respectively, own Shares
constituting five percent (5%) of the outstanding voting
securities of the Company, then the DT Shareholders, Telia and
the WP Entities shall each be entitled to put forth potential
candidates and shall jointly have the right to appoint one (1)
such Supervisory Board Member (the "Jointly-Agreed Supervisory
Board Member"), it being their intention to appoint a person with
experience and expertise in international telecommunications
activities and it being agreed that the initial Jointly-Agreed
Supervisory Board Member shall be Xx. Xxxxx Xxxxxx and all
remaining members (except for one (1) member who may be appointed
by certain holders of Series A shares pursuant to the Company's
existing statutes) shall be "independent" (the "Independent
Directors"), a member of the Supervisory Board shall not be
deemed to be "independent" if he or she (A) is an executive
officer of the Company or any of its subsidiaries or of any
Affiliate (as defined below) of the Company or is a member of the
immediate family (or has a similar relationship) with any such
person, (13) has a business or professional relationship with the
Company or any of its subsidiaries that is material to the
Company or such person, or (C) has an ongoing business or
professional relationship with the Company or any of its
subsidiaries, whether or not material in an economic sense, that
involves continued dealings with management of the Company such
as the relationship between the Company and its investment
bankers or legal counsel.
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(vi) If the number of supervisory board members which the
relevant Shareholders have the right to appoint is reduced by
operation of clauses (i)(B), (ii)(B), (iii) or (iv) above, then
(A) the Shareholder(s) having the right to appoint such directors
shall promptly take all action necessary to remove the number of
their Supervisory Board appointees so as to comply with this
Section 1. 1. 1, and (B) any vacancies created by such removals
shall be filled by the General Assembly.
(vii) If at any meeting of the Company's shareholders at
which members of the Supervisory Board are to be elected, "block
voting" procedures provided under the Polish Commercial Code are
required to be implemented, the Shareholders will vote all Shares
held by them in favor of their respective nominees so as to
preserve as closely as possible the proportionate representation
provided in this Section 1. 1. 1.
(b) Chairman; Vice-Chairman
(i) As long as Telia and its Permitted Controlled Affiliate
Transferees own Shares constituting twenty percent (20%) or more
of the outstanding voting securities of the Company, the Chairman
of the Supervisory Board shall be appointed by Telia; provided
that such selection is approved by Xxxxxxx, Trefoil and Shamrock,
acting together, on the one hand, and the WP Entities, acting
together, on the other hand, such approval not to be unreasonably
withheld. The Chairman shall have the power to cast the deciding
vote in the event of a deadlock among the members of the
Supervisory Board. In addition, the Chairman shall have the right
to call or preside over meetings of the Supervisory Board and
other procedural rights normally associated with such office.
Approval by the DT Shareholders of the selection of the Chairman
will be required only for so long as they and their Permitted
Controlled Affiliates Transferees, in the aggregate, hold Shares
constituting five percent (5%) or more of the outstanding voting
securities of the Company, and approval by the WP Entities of the
selection of the Chairman will be required only for so long as
the WP Entities and their Permitted Controlled Affiliates, in the
aggregate, own Shares constituting five percent (5%) or more of
the outstanding voting securities of the Company.
(ii) As long as the DT Shareholders and their Permitted
Controlled Affiliate Transferees own Shares constituting twenty
percent (20%) or more of the outstanding voting securities of the
Company, the Vice Chairman of the Supervisory Board shall be
appointed by Xxxxxxx, Trefoil and Shamrock, acting together;
provided that such selection is approved by Telia, on the one
hand, and the WP Entities, acting together, on the other hand,
such approval not to be unreasonably withheld. The Vice Chairman
shall not have the power to cast any "deciding votes" or
otherwise exercise any other extraordinary powers, other than the
right to call or preside over meetings of the Supervisory Board
when the Chairman is not present and other procedural rights
normally associated with such
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office. Approval by Telia of the selection of the Vice Chairman
will be required only for so long as Telia and its Permitted
Controlled Affiliates own Shares constituting five percent (5%)
or more of the outstanding voting securities of the Company, and
approval by the WP Entities of the selection of the Vice Chairman
will be required only for so long as the WP Entities and their
Permitted Controlled Affiliates, in the aggregate, own Shares
constituting five percent (5%) or more of the outstanding voting
securities of the Company.
(c) Intentionally omitted
(d) Powers and Responsibilities.
(i) The powers and responsibilities of the Supervisory Board
shall be as set forth in this Section 1. 1. I (d) of this Section
1. 1. I and the Polish Commercial Code, and also shall be set
forth in the Post-IPO Statute.
(ii) The following matters shall require the approval of a
majority of the members of the Supervisory Board: (A)
presentation to the General Assembly of a written report on the
results of the Supervisory Board's examination of the Company's
balance sheet and the profit and loss account; (B) presentation
to the General Assembly of a written report on the results of the
Supervisory Board's examination of the report and the
recommendations of the Management Board with respect to the
division of profits or coverage of losses; (C) the appointment
and removal of the members of the Management Board (except for
any members with respect to whom the Amended Statute reserves the
right of appointment to one or more shareholders), and the
issuance of by-laws for the Management Board; (D) setting or
changing the compensation of the Management Board, or approving
their employment contracts, and the setting and changing of any
incentive plan for the Management Board and other key Company
employees; (E) approval of business plans and budgets for the
Company; (F) unless otherwise provided in the most recent
business plan or budget of the Company approved by the
Supervisory Board, consent to incurring or making loans or other
indebtedness in excess of US$100,000 in a single or series of
related transactions or the equivalent amount in Polish zlotys or
any other currencies; (G) unless otherwise provided in the most
recent business plan or budget of the Company approved by the
Supervisory Board, the authorization of capital expenditures,
obligations or commitments in excess of US$100,000 in a single or
series of related transactions or the equivalent amount in Polish
zlotys or any other currencies; (H) unless otherwise provided in
the most recent business plan or budget of the Company approved
by the Supervisory Board, the giving of any guarantee or
indemnity with respect to the obligations or liability of any
other entity, which guaranty or indemnity shall be in excess of
US$100,000 in a single or series of related transactions or the
equivalent amount in Polish zlotys or any other currencies; (1)
unless otherwise provided in the most recent business plan or
budget of the Company approved by the Supervisory Board, the
acquisition of real estate for a purchase price exceeding
US$100,000 in a single or series of related transactions
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or the equivalent amount in Polish zlotys or any other
currencies; (J) unless otherwise provided in the most recent
business plan or budget of the Company approved by the
Supervisory Board. consent to the sale, lease, pledge,
hypothecation, encumbering or transferring of any of the
Company's assets having a value in excess of US$100,000 in a
single or series of related transactions or the equivalent amount
in Polish zlotys or any other currencies, provided, however, that
sales of products and obsolete equipment in the ordinary course
of business will be subject to no restriction; (K) unless
otherwise provided in the most recent business plan or budget of
the Company approved by the Supervisory Board, the making of any
investment or funding of any amounts in or with respect to any
nontelecommunications related businesses or operations of the
Company (including, for this purpose, Uni-Net Sp. z o.o.),
whether under existing contractual arrangements or otherwise; (L)
consent to the commencement, settlement, assignment, compromise
or release of any claim, of or against the Company in excess of
US$100,000 in a single or series of related transactions or the
equivalent amount in Polish zlotys or any other currencies; (M)
bidding for any license or concession, or agreeing to the
material modification of any existing license of the Company or
any subsidiary; (N) consent to acquiring shares of or investing
in other entities other than in existing subsidiaries of the
Company; and (0) any matter concerning which the Management Board
has reached a voting deadlock and which has been certified to the
Supervisory Board in accordance with Section 1.1.2 below.
(iii) In addition to any approval required pursuant to
Section 1.1.1 (d)(ii), the approval of the Independent Directors
shall be required for (A) any transactions entered into by the
Company with an affiliate (as defined in Section 16, Paragraph 4
of the Post-IPO Statute) and (13) setting or changing the
compensation of the Management Board, or approving their
employment contracts.
In this Agreement: "Affiliate" shall mean any firm, company or
corporation which a Party shall directly or indirectly control, is
controlled by or is under common control with; "Permitted Controlled
Affiliate Transferee" shall mean any firm, company or corporation which a
Shareholder shall directly or indirectly control (and, in the case of
Xxxxxxx, shall include Matav Cable Systems Media Ltd. for as long as that
entity is directly or indirectly controlled by Xxxxxxx) and which, upon
acquiring any Shares from a Shareholder, agrees to be bound by the
provisions of this Agreement; and "subsidiary" means an entity in which the
Company holds more than fifty percent (50%) of the voting stock or has the
right to appoint at least fifty percent (50%) of the members of the
management board or supervisory board (or similar governing or supervisory
authority) of such entity. As used in the preceding sentence, 46 control"
means the right to exercise, directly or indirectly, more than fifty
percent (50%) of the voting rights attributable to the shares of the
controlled entity or the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of the
controlled entity.
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1.1.2. Management Board. The Management Board shall consist of four
(4) members, each of whom shall be appointed by the Supervisory Board,
plus, to the extent applicable, one (1) additional member appointed by a
shareholder having the right to make such appointment pursuant to the
Post-IPO Statute. Any matter concerning which the Chairman of the
Management Board certifies has reached a voting deadlock shall be decided
by the Supervisory Board.
1.1.3. Reimbursement of Expenses. Reasonable out-of-pocket expenses
incurred by members of the Supervisory Board and the Management Board in
connection with attending board meetings or fulfilling other obligations as
requested by the Supervisory Board shall be reimbursed by the Company.
1.1.4. [intentionally deleted]
1.1.5. Conduct of Company Business. The Parties acknowledge that the
Company, Netia Telekorn S.A. ("Netia Telekom") and Netia South Sp. z o.o.
("Netia South") (Netia Telekom and Netia South together referred to as the
"Netia Entities") and their respective supervisory and management boards
(i) shall focus their attention and the Company's resources on the further
development of the telecommunications operations of the Netia Entities and
their respective subsidiaries and such other businesses or operations
falling within the scope of a business plan approved by the Company's
Supervisory Board, and (ii) shall attempt to limit their attention to the
Non-Core Assets (as defined herein) to those matters deemed reasonably
necessary to effect the sale or other disposition of those operations;
provided, however, that the foregoing shall not be deemed to prohibit or
restrict the ability of the members of such supervisory and management
boards from exercising their reasonable business judgment and satisfying
their fiduciary obligations, if any, under applicable law.
1.2. Management of Netia South and Netia Telekom. The provisions set forth
in Sections 1.1.1 and 1.1.2 above regarding the Supervisory Board and the
Management Board, respectively, including but not limited to provisions
regarding the composition, appointment, powers and responsibilities and veto
rights of the Supervisory Board and the composition of the Management Board,
shall apply also to the supervisory boards and management boards of the Netia
Entities. In addition, the individuals appointed to the management boards and
the supervisory boards of each of the Netia Entities shall be the same
individuals as those appointed to the Supervisory Board and the Management Board
of the Company. The statutes of each of the Netia Entities shall be amended and
restated so as to be identical in all material respects to the Post-IPO Statute.
1.3. Strategic Combination. The Parties acknowledge that the Polish
telecommunications industry is in the process of consolidation and that the
Company should participate in this process with the aim of maintaining its
position as a substantial competitor to Telekomunikacja Polska S.A. In
furtherance of this goal, the Parties agree that they shall use all reasonable
efforts to cause the Company to seek out and, if commercially and strategically
appropriate, complete a merger or other - combination (a "Strategic
Combination") with one or more strategic participants in the Polish
telecommunications market as soon as practicable. It
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would be the Parties' goal that any such Strategic Combination augment the value
of the Parties' investment in the Company and would treat all shareholders of
the Company in a non-discriminatory manner. It is acknowledged that the
discussions with any strategic telecommunications entities with respect to a
Strategic Combination shall be coordinated by Telia's representatives on the
Supervisory Board.
2. ACCOUNTS, REPORTS AND RIGHT OF INSPECTION
2.1. The Company shall maintain proper books and accounts on an accrual
basis and in accordance with the provisions of this Agreement, Polish law and
International Accounting Standards as promulgated by the International
Accounting Standards Committee ("IAS"). All financial reports referred to below
shall be prepared in accordance with Polish law and IAS, and shall also be
adjusted to other accounting standards (such as Swedish, U.S. or Israeli GAAP)
in order to enable any of the Shareholders to comply with their respective local
or stock exchange rules (with reasonable costs and expenses of such adjustments
to be paid for by the Company). Annually upon the close of the fiscal year (or
as otherwise approved by the Management Board), all such books and accounts
shall be audited by the auditors of the Company.
2.2. The Company shall prepare the following financial reports on a
consolidated basis for the Company and its subsidiaries and shall provide the
same to the Supervisory Board in the English language: (i) a monthly income and
cash flow statement; (ii) quarterly and annual balance sheets and such other
financial information as may be reasonably requested by the Supervisory Board;
and (iii) profit and loss statements.
3. DISPOSAL OF CERTAIN ASSETS AND OTHER ACTIONS
To the extent not already accomplished as of the date hereof, the Parties
agree to cause the Company to sell, transfer, spin-off or otherwise dispose of
all of its Non-Core Assets and satisfy all of its Non-Core Obligations (each as
defined herein) as soon as practicable and to use all commercially reasonable
efforts to cause such sale, transfer, spin-off or disposition (i) to be effected
by December 18, 1999 and (ii) to be effected in such a manner so as to avoid the
Company assuming or retaining any liabilities or obligations relating to such
operations. In this Agreement, "Non-Core Assets" and "Non-Core Obligations"
shall have the definitions set forth in the Amended and Restated Option Exercise
Agreement entered into among Xxxxxxx, Trefoil, Shamrock, the GS Entities, Telia
and the Company dated as of December 18, 1998 (the "Amended and Restated Option
Exercise Agreement").
4. CONFIDENTIALITY
Each Party hereby undertakes to keep and procure that its directors,
employees, agents and advisors shall keep in strict confidence all information,
knowledge, data, drawings, designs and other material of a confidential nature
("Information") communicated to it by or acquired from the Company or any other
Party prior to the effective date of this Agreement, it being understood that
this Agreement shall not be deemed to provide any Shareholder with the right to
obtain any information from the Company beyond what is required by applicable
law. Included in the definition of Information is information relating to the
business of the Company as
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well as information relating to the business of each of the Shareholders
(whether or not such information relates to the territory in which the Company
does business). No Party shall disclose any such Information to any person
whatsoever other than its directors or employees, agents, affiliates and
advisors directly concerned in the performance of this Agreement and the affairs
of the Company and each Party shall inform all such persons of the confidential
nature of the Information and shall accept responsibility for compliance by such
persons with this Section 4.
4.2. The provisions of this Section 4 shall not apply to Information which
the Party concerned can prove was lawfully in its possession at the date of
receipt or which becomes public knowledge (except by reason or default of such
Party) or which such Party obtains from some other person with good legal title
thereto, or is independently developed by such Party.
4.3. Notwithstanding the provisions of this Section, each Party shall (on a
"need to know" basis) be at liberty to disclose Information where, and to the
extent that, such disclosure is properly made pursuant to and in accordance with
a relevant statutory obligation or as otherwise may be required by the Company
in its business and regulatory activities with government agencies, vendors,
bankers or potential investors or as otherwise may be required by applicable
law; Provided however, that the disclosing Party shall take reasonable steps to
obtain, if possible, a written confidentiality undertaking from such person to
whom it wishes to disclose such Information, that is consistent with the terms
of this Agreement and that the Party from whom the disclosing Party obtained the
relevant Information is given prior written notice of such disclosure.
4.4. The provisions of this Section 4 shall remain in force for a period
commencing on the date of this Agreement and, in respect of any one Shareholder,
end on the second anniversary of that Shareholder ceasing to be a Shareholder in
the Company.
5. ARBITRATION AND DISPUTE RESOLUTION
5.1. The Parties desire that this Agreement operate between them fairly and
reasonably. If during the term of this Agreement, a dispute arises between the
Parties, or one Party perceives the other as acting unfairly or unreasonably, or
a question of interpretation arises under this Agreement, then the Parties shall
promptly confer and exert their best efforts in good faith to reach a reasonable
and equitable resolution of the issue. If the disputing Parties are unable to
resolve the issue within twenty (20) business days, the matter shall be resolved
in accordance with Section 5.2. For the avoidance of doubt, voting deadlocks
referred to in Sections 1.1.2 shall not be resolved pursuant to this Section 5,
but shall be resolved in accordance with the procedures set forth in such
Sections 1.1.1 (d)(ii)and 1.1.2.
5.2. In the event the disputing Parties are unable to resolve any dispute
hereunder by the procedures set forth in Section 5.1, such dispute shall be
finally settled by arbitration in accordance with the Rules of Arbitration of
the United Nations Commission on International Trade Law (the "UNCITRAL
Arbitration Rules") in effect on the date of this Agreement. The number of
arbitrators shall be three (3). Each of the disputing Parties shall appoint one
(1) arbitrator and they shall jointly appoint the third arbitrator. The third
arbitrator shall be chairman of the arbitral tribunal. The President (Prezes) of
the Polish Chamber of Commerce (Krajowa Izba Gospodarcza) in Warsaw shall act as
the "appointing authority" under the UNCITRAL
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Arbitration Rules if either disputing Party fails to appoint an arbitrator or if
they both fail to appoint jointly the third arbitrator within the limits
specified in the UNCITRAL Arbitration Rules. The place of arbitration shall be
Warsaw, Poland. The language to be used in the arbitral proceeding shall be
English. The disputing Parties shall equally share the expenses of the
arbitrator(s) and the administrative costs of the arbitration proceedings, but
each disputing Party shall bear its own costs and expenses, including fees and
expenses of its own legal counsel. The pending of the arbitration proceeding
shall not in and of itself relieve either disputing Party from its duty to
perform under this Agreement.
6. REPRESENTATIONS AND WARRANTIES
6.1. Representations and Warranties of the Company. The Company represents
and warrants to each of the Shareholders as follows:
6.1.1. The Company is duly organized, validly existing and in good
standing under the laws of the Republic of Poland, and has all requisite
corporate power and authority to enter into this Agreement and perform each
and every obligation required to be performed by it hereunder.
6.1.2. The execution, delivery and performance of this Agreement by
the Company and the consummation by the Company of the transactions
contemplated under this Agreement have been duly and validly authorized by
all necessary corporate actions on the part of the Company.
6.1.3. This Agreement has been duly executed and delivered by the
Company and, assuming this Agreement constitutes a valid and binding
obligation of the other parties hereto, constitutes a valid and binding
obligation of the Company enforceable in accordance with its terms except
as enforcement may be limited by bankruptcy, insolvency or other similar
laws and by equitable principles.
6.1.4. The execution and delivery of this Agreement by the Company
does not, and performance of this Agreement by the Company will not (i)
require the consent, approval or authorization of any person, entity or
public authority, (ii) conflict with the statutes of the Company or give
rise to a right to accelerate or terminate any agreement, loan agreement,
security instrument, deed of trust or other regulation or other provision
of law or, to the knowledge of the Company, any order, judgment or other
direction of any court or tribunal of competent jurisdiction or (iii) give
rise to any lien, claim, encumbrance or restriction on any of the licenses
or other assets of the Company.
6.2 Representations and Warranties of the Shareholders. Each Shareholder,
severally and not jointly, represents and warrants to the Company and to each of
the other Shareholders as follows:
6.2.1. Such Shareholder is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, and
has all requisite corporate or
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other power and authority to enter into this Agreement and perform each and
every obligation required to be performed by it hereunder.
6.2.2. The execution, delivery and performance of this Agreement by
such Shareholder and the consummation by such Shareholder of the
transactions contemplated under this Agreement have been duly and validly
authorized by all necessary corporate or other actions on the part of such
Shareholder.
6.2.3. This Agreement has been duly executed and delivered by such
Shareholder and, assuming the Agreement constitutes a valid and binding
obligation of the other parties hereto, constitutes a valid and binding
obligation of such Shareholder enforceable in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency or other
similar laws and by equitable principles.
6.2.4. Except as set forth in Schedule 6.2.4, the execution and
delivery of this Agreement by such Shareholder does not, and the
performance of this Agreement by such Shareholder will not (i) require the
consent, approval or authorization of any person, entity or public
authority (except, in the case of Xxxxxxx, the approval of the Bank of
Israel to the extent required by law), (ii) conflict with such
Shareholder's statutes, articles of association or other governing
documents or give rise to a right to accelerate or terminate any agreement,
loan agreement, security instrument, deed of trust or other regulation or
other provision of law or, to the knowledge of such Shareholder, any order,
judgment or other direction of any court or tribunal of competent
jurisdiction or (iii) give rise to any lien, claim, encumbrance or
restriction on any of the assets of such Shareholder.
7. MISCELLANEOUS
7.1. Notices. All notices or other communications required or permitted to
be given hereunder shall be (as elected by the person giving such notice) (i)
personally delivered with written confirmation of receipt, (ii) transmitted by
postage prepaid registered mail (airmail if international) or (iii) transmitted
by facsimile transmission and with postage prepaid mail confirmation (airmail if
international) to the Parties as follows:
Except as otherwise specified herein, all notices and other communications
shall be deemed to have been given on the date of receipt if delivered
personally or by mail or on the date of transmission with confirmed answer back
if transmitted by telecopy or telex, whichever shall first occur. Any Party
hereto may change its address for purposes hereof by written notice to the other
Parties in accordance with this Section 7. 1.
Netia Holdings S.A.
Netia Holdings S.A.
xx. Xxxxxxxx 00
00-000 Xxxxxx
Xxxxxx
-11-
Attn: Meir Srebemik
Facsimile: 48 22 496435
Telephone: 00 00 000000
With a copy to:
Weil, Gotshal & Xxxxxx
Xxx Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attn: Xxxxxxx Xxxxxxx
Facsimile: 44 171 903 0990
Telephone: 00 000 000 0 000
and to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 10 1 5 3
U.S.A.
Attn: Xxxxxxx Xxxxx
Facsimile: 1 212 310 8007
Telephone: 0 000 000 0000
The Shareholders:
Telia AB
Business Area International
X-000 00 Xxxxxx
Xxxxxx
Attn: Clas Hygrell, Vice President, Business Development
Facsimile: 46 8 713 3152
Telephone: 00 0 000 0000
With a copy to:
Telia AB, Legal Affairs
Attn: Jan-Henrik Ahmell, Director, Legal Affairs
X-000 00 Xxxxxx
Xxxxxx
Facsimile: 46 8 94 64 70
Telephone: 00 0 000 0000
Xxxxxxx Investments Limited
0, Xxxxxx Xxxxxx
-00-
Xxx Xxxx
Xxxxxx 62283
Fax: 000-0-000 0999
Attn: Xxxxx Arnoyel
Shamrock Holdings, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
X.X.X.
Facsimile: 1 818 845 4675
Attn: Xxxxxx X. Xxxxxxx
Trefoil Capital Investors L.P.
000 Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
U.S.A.
Facsimile: 1 818 842 3142
Attn: Xxxxxx X. Xxxxxxxxx
Managing Director of Trefoil Investors, Inc.
The WP Entities
X.X. Xxxxxxx, Xxxxxx & Co., LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 100 1 7
U.S.A.
Facsimile: 1 212 878 9351
Telephone: 0 000 000 0000
Attn: Xxxxxxx Xxxxxxx
With a copy to:
X.X. Xxxxxxx, Xxxxxx & Co. International Ltd.
Xxxxxx House
00 Xxxx Xxxxxx, Xx. Xxxxx'x
Xxxxxx XXXX 0XX
Xxxxxxx
Facsimile: 44 171 321 0881
Telephone: 00 000 000 0000
Attn: Xxxxxxx Italia
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
-00-
Xxx Xxxx, Xxx Xxxx 100 1 0-0000
X.X.X.
Facsimile: 1 212 728 81 11
Telephone: 0 000 000 0000
Attn: Xxxxx X. Xxxxx
7.2. Effective Date; Entire Agreement; Amendments. This Agreement shall
become effective upon signing. Upon such effectiveness, this Agreement, together
with (i) the Exhibit attached hereto, which is incorporated in and is deemed to
be a part of the Agreement, and (ii) the Post-IPO Shareholders' Agreement # 2
between the Company, the Parties hereto and the GS Entities, regarding, among
things, sale and assignment of the Shares and dated the date hereof, shall
constitute the entire agreement between the Parties, and supersede all prior
agreements or understandings between them with respect to the matters referred
to herein (including, without limitation, the Amended and Restated Pre-IPO
Shareholders' Agreement among the Parties). This Agreement may be modified or
amended only by an instrument in writing signed by all Parties.
7.3. Shares Subject to this Agreement. Each of the Shareholders agrees that
all Shares owned by them, whether now owned or hereafter acquired by them, shall
be subject to this Agreement.
7.4. No Agency. Nothing in or arising out of this Agreement is to be taken
as constituting a partnership or agency relationship between the Parties, and no
Party shall have the right or authority to bind or commit the other in any
manner or for any purposes whatsoever, other than as expressly provided for
herein with respect to the Company.
7.5. Further Action. Each Party agrees to perform any further acts, give
further assurances and execute and deliver any further documents as may be
necessary or convenient to carry out the provisions and intent of this
Agreement. Each Party shall use and exercise its rights and powers (as to voting
or otherwise) in and in relation to the Company in order to give full effect to
the provisions of this Agreement. The Parties will do all acts required,
including but not limited to, passing appropriate resolutions of the Company. to
cause the Company to undertake to perform the obligations imposed upon it by the
terms of the Agreement.
7.6. No Waiver. No relaxation, forbearance, delay or indulgence by any
Party in enforcing any of the terms and conditions of this Agreement or the
granting of time by any Party to any other Party shall prejudice, affect or
restrict the rights and powers of such Party hereunder nor shall any waiver by
any Party or any breach hereof operate as a waiver of or in relation to any
subsequent or continuing breach hereof.
7.7. Governing Law; Construction. This Agreement and the rights of the
Parties hereunder shall be governed by and interpreted in accordance with the
laws of the Republic of Poland.
7.8. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original but both of which shall
constitute one and the same document.
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7.9. Costs and Reimbursements. Unless otherwise stated in this Agreement,
all expenses involved in the negotiation, preparation and consummation of this
Agreement shall be borne by the Party incurring such expenses.
7.10. Termination. This Agreement and the transactions contemplated
hereunder shall terminate in any of the following ways:
7.10.1. Automatically with respect to any Shareholder if such
Shareholder ceases to own Shares representing at least 2.5% of the
outstanding voting securities of the Company (it being agreed that for
purposes of the foregoing, (i) Trefoil and Shamrock shall be treated as one
Shareholder and (ii) a Shareholder and its Permitted Controlled Affiliate
Transferees shall be treated as one Shareholder); or
7.10.2. Automatically, when the only remaining parties to this
Agreement are the Company and any one Shareholder; or
7.10.3. Upon the dissolution or liquidation (voluntary or in
bankruptcy) of the Company; or
7.10.4. By the unanimous written agreement of the Parties.
If this Agreement is terminated without a breach or default by any of
the Parties, then all of the Parties shall be released from any and all
liabilities hereunder except those obligations in Section 4 for the period
set forth in Section 4.4.
7.11. Binding on Successors; Non-Assignability. This Agreement shall be
binding upon and inure to the benefit of each of the Parties and their
respective legal representatives, successors and permitted assigns; Provided
that no Party may assign any rights or delegate any duties under this Agreement,
in whole or in part, without the prior written consent of the other Parties,
except that a Shareholder may assign its rights or delegate its duties under
this Agreement, in whole or in part, without the prior consent of the other
Parties, to a Permitted Controlled Affiliate Transferee.
7.12. Severability. If any provision of this Agreement shall be determined
by any court of competent jurisdiction to be invalid or unenforceable, the
remainder of the Agreement other than the portion determined to be invalid or
unenforceable shall not be affected thereby, and each valid provision thereof
shall be enforced to the fullest extent permitted by law. The Parties will, to
the extent possible, modify such term or provision so that such provision is no
longer invalid or unenforceable.
7.13. Nature of Liability. The liability of each of the WP Entities is
several and not joint and no one of the WP Entities shall be liable in any way
for the acts or omissions of any other of the WP Entities.
-15-
IN WITNESS WHEREOF, the Parties hereto have duly executed and delivered
this Agreement as an instrument under seal as of the day and year first above
written.
NETIA HOLDINGS S.A.
By: ______________________________
Printed Name: ____________________
Title: ___________________________
THE SHAREHOLDERS:
TELIA AB (publ.)
By: ______________________________
Printed Name: ____________________
Title: ___________________________
XXXXXXX INVESTMENTS LIMITED
By: ______________________________
Printed Name: ____________________
Title: ___________________________
SHAMROCK HOLDINGS, INC.
By: ______________________________
Printed Name: ____________________
Title: ___________________________
-00-
XXXXXXX XXXXXXX XXXXXXXXX L.P.
By: ______________________________
Printed Name: ____________________
Title: ___________________________
WARBURG, XXXXXX EQUITY PARTNERS, L.P.
By Warburg, Xxxxxx & Co.,
its General Partner
By: ______________________________
Printed Name: ____________________
Title: Partner
WARBURG, XXXXXX VENTURES
INTERNATIONAL, L.P.
By Warburg, Xxxxxx & Co.,
its General Partner
By: ______________________________
Printed Name: ____________________
Title: Partner
WARBURG, XXXXXX NETHERLANDS EQUITY
PARTNERS I, C.V.
By Warburg, Xxxxxx & Co.,
its General Partner
By: ______________________________
Printed Name: ____________________
Title: Partner
-00-
XXXXXXX, XXXXXX XXXXXXXXXXX
EQUITY PARTNERS II, C.V.
By Warburg, Xxxxxx & Co.,
its General Partner
By: ______________________________
Printed Name: ____________________
Title: Partner
WARBURG, XXXXXX NETHERLANDS
EQUITY PARTNERS III, C.V.
By Warburg, Xxxxxx & Co.,
its General Partner
By: ______________________________
Printed Name: ____________________
Title: Partner
-18-
