EXECUTION COPY
DATED DECEMBER 21, 2004
(1) TELESYSTEM INTERNATIONAL WIRELESS INC.
(2) CLEARWAVE N.V.
- AND -
(3) SELLERS LISTED IN SCHEDULE 4, PART B
SHARE TRANSFER AGREEMENT
RELATING TO THE TRANSFER OF SHARES IN
OSKAR HOLDINGS N.V.
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TABLE OF CONTENTS
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..........................................................14
8. COVENANTS................................................................15
9. NOTICES..................................................................23
10. GENERAL PROVISIONS.......................................................24
11. GOVERNING LAW AND DISPUTE RESOLUTION.....................................27
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SHARE TRANSFER AGREEMENT
DATE: DECEMBER 21, 2004
PARTIES:
(1) TELESYSTEM INTERNATIONAL WIRELESS INC., a company organised and
existing under the laws of Canada and having its registered office at
0000 Xxxx-Xxxxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxx, Xxxxxx, X0X 0X0
("TIW");
(2) CLEARWAVE N.V., a public limited liability company organised and
existing under the laws of The Netherlands and having its registered
office at World Trade Center, Strawinskylaan 707, Amsterdam 1077 XX,
The Netherlands ("CLEARWAVE");
(3) SELLERS, being the Persons whose names appear in Part B of Schedule 4
(each, a "SELLER" and collectively, the "SELLERS");
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RECITAL:
(A) Each Seller is the beneficial and legal owner of the number of Class B
Shares with a nominal value of (euro)1.00 each (collectively, the
"SUBJECT SHARES") in the share capital of Oskar Holdings set forth next
to such Seller's name in Part B of Schedule 4.
(B) The Sellers wish to transfer all of the Subject Shares to Clearwave,
and TIW wishes to pay for the Subject Shares, on behalf of its
subsidiary Clearwave, in common shares of TIW's share capital, upon the
terms and conditions set forth below (the "SUBJECT SHARE TRANSFER").
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 2003;
"ACCOUNTS DATE" 31 December 2003;
"ADVENT SELLERS" collectively, Advent Partners Limited
Partnership, Advent Private Equity Fund
- Central Europe Limited Partnership,
ACEE II-A Co-Investment Fund Limited
Partnership, Advent Central & Eastern
Europe II, Limited Partnership, Advent
Central & Eastern Europe II-A Limited
Partnership, Advent Central & Eastern
Europe II-B Limited Partnership, Advent
Central & Eastern Europe II-L Limited
Partnership, Advent PGGM Global Limited
Partnership, and The Czech and Slovak
Private Equity Fund L.P.;
"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, in each case, where
"own" means ownership of more than 50
per cent of the voting interests or
rights of the specified person;
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"AGREEMENT" this Share Transfer Agreement;
"AMFQ" Autorite des marches financiers du
Quebec;
"ARTICLES OF ASSOCIATION" the articles of association of Oskar
Holdings as amended from time to time;
"BLACKOUT PERIOD" as defined in Schedule 6;
"BUSINESS COMBINATION" as defined in Clause (iii) of the
definition of Change of Control;
"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 London, England, the
Netherlands, the State of New York in
the United States of America, and the
Province of Quebec, Canada, for the
transaction of ordinary business;
"CHANGE IN THE BOARD MAJORITY" as defined in Clause (ii) of the
definition of Change of Control;
"CHANGE OF CONTROL" shall be deemed to have occurred in
respect of a person if:
(i) a "person" or "group" within the
meaning of Sections 13(d) and 14(d)(2)
of the 1934 Act (other than the Existing
Shareholders) becomes the ultimate
"beneficial owner" as defined in Rule
13d-3 under the 1934 Act of more than a
majority, on a fully diluted basis, of
the total voting power of the capital
stock of such person of any class or
kind ordinarily having the power to vote
for the election of directors of such
person; or
(ii) individuals who on the date hereof
constituted the board of directors of
such person (together with any new
directors whose election by such board
of directors or whose nomination for
election to such board of directors by
such person's shareholders was approved
by a vote of at least two-thirds of the
members of such board of directors then
in office who either were members of
such board of directors on such date or
whose election or nomination for
election was
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previously so approved cease for any
reason to constitute a majority of the
members of the board of directors of
such person then in office (a "CHANGE IN
THE BOARD MAJORITY"), and a "person" or
"group" within the meaning of Sections
13(d) and 14(d)(2) of the 1934 Act
(other than the Existing Shareholders)
has become, at any time during the 120
days before the Change in Board
Majority, the ultimate "beneficial
owner" (as defined in the Rule 13d-3
under the 0000 Xxx) of more than 33 1/3%
of the total voting power of the capital
stock of such person of any class or
kind ordinarily having the power to vote
for the election of directors of such
person on a fully diluted basis; or
(iii) there is consummated either (A) a
merger, amalgamation, plan of
arrangement, consolidation,
reorganization, share exchange or
issuance of securities involving such
person (each a "BUSINESS COMBINATION")
unless, immediately after such Business
Combination, all or substantially all of
the individuals and entities who were
the beneficial owners of voting capital
of such person immediately before the
Business Combination continue to
beneficially own, directly or
indirectly, more than 66 2/3% of the
then outstanding voting capital of the
resulting or acquiring entity in such
Business Combination (which shall
include, without limitation, a
corporation which as a result of such
transaction owns such person or
substantially all of such person's
assets either directly or indirectly) in
substantially the same proportions as
their respective ownership in the
outstanding voting capital immediately
before such Business Combination; or (B)
the sale or other disposition of any of
such person's assets for gross proceeds
equal to at least two-thirds of the then
private enterprise value of such person;
"CLEARWAVE" as defined in paragraph (2) under the
heading "Parties";
"COMPLETION" the completion of the Subject Share
Transfer pursuant to Clause 4 of this
Agreement, which shall take place on the
Completion Date, by the performance by
the parties of their respective
obligations under Clause 4;
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"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 the Sellers 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, New York time, on
the tenth Business Day after such date
or such other time and date as the
parties may agree;
"CONCURRENT SECONDARY
OFFERING" as defined in Clause 8.7;
"CONDITIONS" the conditions precedent referred to in
Clauses 3.1 and 3.2;
"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;
"DOCUMENTED SALE" as defined in Schedule 6;
"EMP SELLERS" collectively, EEIF Czech N.V. and
Emerging Europe Infrastructure Fund
C.V.;
"EBRD" European Bank for Reconstruction and
Development;
"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;
"EXEMPT SELLER" each Seller that is not identified as
having been organized under the laws of
the United States, or one of the states,
territories or possessions thereof,
under the heading "Laws of
Incorporation" in Schedule 4, Part B
hereof, and, for the avoidance of doubt,
the EBRD shall be an Exempt Seller;
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"EXISTING SHAREHOLDERS" the parties to the Registration Rights
Agreement, other than TIW;
"EXIT AGREEMENT" the Amended and Restated Exit Agreement
dated May 3, 2001 among TIW, Clearwave
and the Investors identified therein;
"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 the Czech
Republic or elsewhere;
"INDEMNIFIED PARTY" as defined in Clause 7;
"INDEMNIFYING PARTY" as defined in Clause 7;
"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;
"LOCK-UP PERIOD" as defined in Clause 8.5.1;
"MANAGEMENT ACCOUNTS" TIW's unaudited balance sheet as at
September 30, 2004, together with its
profit and loss account and cash flow
statement for the three- and nine-month
periods ending September 30, 2004;
"MATERIAL ADVERSE CHANGE" with respect to a party, any event,
circumstance, condition, fact, effect or
other matter which has the effect of
preventing in a material and adverse way
such party from performing and complying
with any of its obligations under this
Agreement or making its Warranties
hereunder;
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"NASD" as defined in Clause 8.7.3;
"NASDAQ" Nasdaq National Market or, in the event
the common shares of TIW are phased down
to the Nasdaq SmallCap Market by reason
of TIW not satisfying the Nasdaq
National Market's minimum bid price
continuing listing requirement, "Nasdaq"
shall refer to the Nasdaq SmallCap
Market;
"OSKAR HOLDINGS" Oskar Holdings N.V., a public limited
liability company organised and existing
under the laws of The Netherlands and
having its registered office at World
Trade Center, Strawinskylaan 707,
Amsterdam 1077 XX, The Netherlands;
"OTHER TIW EXCHANGE" as defined in Clause 8.7;
"PROHIBITED SHARE TRANSACTION" as defined in Clause 8.5.1;
"PURCHASERS" TIW and Clearwave;
"QUEBEC ACT" as defined in Clause 3.5;
"QUEBEC REGULATION" as defined in Clause 3.5;
"RECOGNIZED EXCHANGE" Nasdaq, New York Stock Exchange, Toronto
Stock Exchange, American Stock Exchange
or London Stock Exchange;
"REGISTRABLE SHARES" as defined in Schedule 6;
"REGISTRATION EXPENSES" as defined in Clause 8.7.3;
"REGISTRATION RIGHTS
AGREEMENT" the Amended and Restated Registration
Rights Agreement, dated as of 6 May
2004, between, amongst others,
Telesystem Ltd., 0000-0000 Xxxxxx Inc.,
Caisse de depot et placement du Quebec,
certain funds advised by Emerging
Markets Partnership (Europe) Limited,
certain affiliates of XX Xxxxxx Partners
LLC, U.F. Investment (Barbados) Ltd. and
TIW, and certain affiliates;
"RELEASE DATE" as defined in Clause 8.5.1;
"REORGANIZATION EVENT" as defined in Clause 8.7;
"RIGHTS OFFERING" as defined in Clause 8.2.3;
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"SEC" United States Securities and Exchange
Commission;
"SECONDARY OFFERING" as defined in Clause 8.7;
"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 1995 Act on the Supervision
of the Securities Trade (WET TOEZICHT
EFFECTENVERKEER 1995) and the rules and
regulations made thereunder, together
with applicable published policy
statements and orders from the
Netherlands Authority for the Financial
Markets; and the 1934 Act and the 1933
Act and the rules and regulations made
thereunder, together with applicable
published interpretations and releases
of the SEC;
"SELLER" AND "SELLERS" as defined in paragraph (3) under the
heading "Parties";
"SELLING EXPENSES" as defined in Clause 8.7.3;
"SHARE TRANSFER DOCUMENTS" as defined in Clause 10.2.1;
"SHAREHOLDERS AGREEMENT" the Amended and Restated Shareholders
Agreement dated May 4, 2001 among
Clearwave, TIW, Oskar Holdings (f/k/a
TIW Czech N.V.) and the Investors
identified therein;
"SHELF REGISTRATION STATEMENT" as defined in Schedule 6;
"SUBJECT SHARES" as defined in Recital (A);
"SUBJECT SHARE TRANSFER" as defined in Recital (B);
"SUBSIDIARY" with respect to any specified person,
(i) 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 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
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two-level board, its supervisory board;
and (ii) 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);
"TERMINATION DATE" February 28, 2005;
"TIW" as defined in paragraph (1) under the
heading "Parties";
"TIW SHARES" as defined in Clause 2.2;
"TIW SECURITIES" as defined in Clause 8.2.3;
"TSX" Toronto Stock Exchange;
"UNANIMOUS SHAREHOLDERS
RESOLUTION" as defined in Clause 8.9;
"USD" denotes the lawful currency from time to
time of the United States of America;
"WAIVER" the waiver and consent of the Existing
Shareholders regarding their rights
under the Registration Rights Agreement
sufficient to allow the Sellers to
participate in future Concurrent
Secondary Offerings as and to the extent
set forth in Clause 8.7 hereof, in form
and content substantially as set forth
in Schedule 7 hereto;
"WARRANTIES" the warranties set out in Schedules 3
and 4;
"1933 ACT" as defined in Clause 8.3;
"1934 ACT" as defined in Clause 8.3; and
"2003 20-F" TIW's annual report on Form 20-F for the
fiscal year ended December 31, 2003.
1.2 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; and
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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.
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.
1.5 CLAUSES AND SCHEDULES
Unless the context otherwise requires, references to Recitals, Clauses
and Schedules are references to recitals and clauses hereof and
schedules hereto, and references to this Agreement include the
Schedules.
1.6 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).
1.7 TIME
Unless the context otherwise requires, any reference to a time of day
is a reference to London time.
1.8 REFERENCES
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.
1.9 CURRENCY
Unless otherwise specifically indicated, all dollar references in this
Agreement are in USD.
1.10 SEVERAL OBLIGATIONS
Except where expressly stated to the contrary, all obligations
contained in this Agreement are several and not joint or joint and
several.
2. SHARE TRANSFER
2.1 Subject to the provisions of Clause 2.2, on and with effect from
Completion, each Seller hereby agrees to transfer to Clearwave the
Subject Shares owned by it as set forth in Part B of Schedule 4,
together with all rights and title attached thereto.
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2.2 For the Subject Shares transferred by the Sellers to Clearwave, TIW
shall, on behalf of Clearwave, pay to each Seller 18.488 common shares
of TIW for each Subject Share owned by such Seller (such shares to be
issued by TIW to the Sellers pursuant to this Agreement, the "TIW
SHARES").
3. CONDITIONS PRECEDENT
3.1 CONDITIONS APPLICABLE TO SELLERS.
The obligation of each Seller to transfer the Subject Shares to
Clearwave under Clause 2.1 is conditional on the satisfaction of all
Conditions set out in Schedule 1, Part A on or before the Termination
Date and the issue by TIW on the Completion Date of the TIW Shares to
such Seller under Clause 2.
3.2 CONDITIONS APPLICABLE TO PURCHASERS.
The obligation of TIW to issue the TIW Shares to a Seller under Clause
2.2 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 such Seller on the Completion Date of the Subject Shares to
Clearwave under Clause 2.1.
3.3 The satisfaction of any Conditions set out in Schedule 1, Part A may
be waived in respect of any Seller for the benefit of the Purchasers
(with or without conditions) by such Seller sending written notice to
that effect to the Purchasers and the other Sellers. The waiver by a
Seller shall not affect the obligations of the Purchasers towards the
other Sellers or the obligation of the other Sellers to the
Purchasers.
3.4 The satisfaction of any Conditions set out in Schedule 1, Part B may
be waived for the benefit of any Sellers (with or without conditions)
by the Purchasers by written notice to that effect to the Sellers. The
waiver by the Purchasers for the benefit of a Seller shall not affect
the obligations of the other Sellers towards the Purchasers.
3.5 The parties shall use commercially reasonable efforts to ensure that
the Conditions are satisfied as soon as possible after the date of
this Agreement, and in any event prior to the Termination Date. In
furtherance of the foregoing, if prior to the Completion Date AMFQ
shall have 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, TIW
shall use commercially reasonable efforts to promptly file a
prospectus to qualify the issuance of the TIW Shares with AMFQ and the
Ontario Securities Commission and obtain a receipt therefor.
3.6 Should any party become aware of anything which will or may reasonably
be expected to prevent any of the Conditions from being satisfied it
shall forthwith disclose the same to the other parties.
4. COMPLETION
4.1 With respect to the delivery of the TIW Shares by TIW to the Sellers,
Completion shall take place at the offices of TIW at 0000
Xxxx-Xxxxxxxx Xxxx. West, 38th floor, Montreal, Quebec, Canada, and
with respect to the other actions to be taken to
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complete the Subject Share Transfer, Completion shall take place at
the offices of Oskar Holdings at World Trade Center, Strawinskylaan
707, Amsterdam 1077 XX, The Netherlands or at such other place as
shall be mutually agreed between the Sellers and the Purchasers on the
Completion Date when all (but not some only) of the events described
in this Clause 4 shall occur.
4.2 On the Completion Date, each Seller shall deliver to TIW, or
Clearwave, as the case may be, those documents and take those actions
as set out in Schedule 2, Part B and each Seller shall transfer the
Subject Shares to Clearwave as per Clause 2.1, free from any
Encumbrances and, together with all rights now or hereafter attaching
or accruing thereto, including all rights to any dividend or other
distribution declared after the date of this Agreement.
4.2.1 If Oskar Holdings declares any dividend or other distribution
between the date of this Agreement and the Completion Date to
shareholders of record before the Completion Date, each Seller
shall deliver to the Purchasers on the Completion Date (or the
payment date of such dividend or other distribution, if such date
is later than the Completion Date), in addition to the Subject
Shares, an amount per Subject Share equal to the per share
dividend or distribution.
4.3 On the Completion Date, the Purchasers shall deliver to each Seller
those documents and take those actions as set out in Schedule 2, Part
A and shall issue the TIW Shares to each Seller as per Clause 2.2 as
validly issued fully paid and non-assessable common shares of TIW,
free from any Encumbrances other than those created by the Sellers and
their Affiliates, as the case may be, and those transfer restrictions
created by Clause 8.5, together with all rights now or hereafter
attaching or accruing thereto, including all rights to any dividend or
other distribution declared after the date of this Agreement.
4.3.1 If TIW declares any dividend or other distribution between the
date of this Agreement and the Completion Date to shareholders of
record before the Completion Date, the Purchasers shall deliver
to each Seller on the Completion Date (or the payment date of
such dividend or other distribution, if such date is later than
the Completion Date), in addition to the TIW Shares, an amount
per TIW Share equal to the per share dividend or distribution.
5. WARRANTIES
5.1 TIW makes the Warranties set out in Schedule 3, Part A to and for the
benefit of the Sellers as of the date hereof, and as of the Completion
Date. TIW and Clearwave, jointly and severally, make the Warranties
set out in Schedule 3, Part B, to and for the benefit of the Sellers
as of the date hereof and as of the Completion Date. Notwithstanding
anything in this Agreement or in Schedule 3 to the contrary, the
parties agree that TIW and Clearwave make no warranties as to the
securities Laws of any jurisdiction other than Canada and the United
States of America. The Warranties made by TIW and Clearwave as of the
Completion Date shall be made subject to any further disclosures to a
Seller made by TIW or Clearwave in writing on or before Completion in
a form and substance satisfactory to such Seller, acting reasonably.
For the avoidance of doubt, any such further disclosures made to a
Seller which are not in a form and substance satisfactory to a Seller,
acting reasonably, shall entitle such Seller to elect not to proceed
to Completion, provided that this will not affect Completion with
respect to the other Sellers. 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.
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5.2 Each Seller makes the Warranties set out in Schedule 4, Part A, in
respect of itself only, to and for the benefit of the Purchasers as of
the date hereof and as of the Completion Date. The Warranties made by
the Sellers 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, acting
reasonably. For the avoidance of doubt, any such further disclosures
made by a particular Seller to the Purchasers which are not in a form
and substance satisfactory to the Purchasers, acting reasonably, shall
entitle the Purchasers to elect not to proceed to Completion with
respect to such particular Seller, provided that this will not affect
Completion with respect to the other Sellers. 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 Each party is aware and acknowledges that it has 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.
5.5 Each of the Warranties set out in each paragraph of Schedule 3 and
Schedule 4 is separate and independent and unless otherwise expressly
provided shall not be limited by reference to any other Warranty or
anything in this Agreement.
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 a 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, a Seller 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 in respect of such
Seller, the Purchasers may by written notice to the other parties
elect to proceed to Completion or terminate this Agreement with
respect to such Seller, provided that this will not affect the
Completion with respect to the other Sellers.
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6.2 If, on or before the Completion Date, any Purchaser 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 in respect of such
Purchaser, such Seller may by written notice to the other parties
elect to proceed to Completion or terminate this Agreement with
respect to itself, provided that this will not affect the Completion
with respect to the other Sellers.
6.3 If Completion does not occur as to the Subject Share Transfer between
the Purchasers and a particular Seller on or before the Termination
Date this Agreement shall terminate with respect to the Subject Share
Transfer between the Purchasers and such particular Seller (but as to
such Seller only).
6.4 If either the Purchasers or any Seller terminates this Agreement
pursuant to Clauses 6.1 or 6.2 or this Agreement terminates
automatically by virtue of Clause 6.3, each relevant party's further
rights and obligations hereunder shall 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
(ii) Clauses 7 (Indemnification), 9 (Notices), 10.2 (Entire
Agreement), and 11 (Governing Law and Dispute Resolution) shall
survive beyond such termination.
6.5 Except as set out in this Clause 6, no party may terminate or rescind
this Agreement, either before or after Completion.
7. INDEMNIFICATION
7.1 Each of the (i) Purchasers jointly and severally as regards each of
the Sellers and (ii) Sellers severally as regards the Purchasers,
covenant and agree, (a) for a period of twelve (12) months following
the Completion Date, to protect, indemnify and hold harmless the other
parties from and against any and all losses, claims, damages,
liabilities, costs or expense caused or incurred by reason of, or in
any way arising, directly or indirectly, out of any breach or default
of or under any representation or warranty of such party in this
Agreement, and (b) for a period of eighteen (18) months following the
Completion Date, to protect, indemnify and hold harmless the other
parties from and against any and all losses, claims, damages,
liabilities, costs or expense caused or incurred by reason of, or in
any way arising, directly or indirectly, out of any breach or default
of or under any covenant or agreement of such party in this Agreement.
7.2 In the event that any claim, action, suit or proceeding is brought or
instituted against a party in the context of Clause 7.1, such party
(an "INDEMNIFIED PARTY") shall promptly notify the person from whom
indemnification is sought (the "INDEMNIFYING PARTY") and the
Indemnifying Party shall promptly retain counsel approved by the
Indemnified Party, acting reasonably, to represent the Indemnified
Party in such claim, action, suit or proceeding, and the Indemnifying
Party shall pay all reasonable fees and disbursements of such counsel
relating to such claim, action, suit or proceeding. No Indemnifying
Party shall, without the written consent of the Indemnified Party,
effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought
hereunder (whether or not the Indemnified Party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
Indemnified Party from all liability arising out of such action or
claim and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act, by or on behalf of any
Indemnified Party.
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7.3 The liability of each Seller to the Purchasers hereunder shall not
exceed the product of USD 11.6236 and the number of TIW Shares to
which such Seller is entitled as a consequence of the Subject Share
Transfer pursuant to Clause 2.2.
7.4 The aggregate liability of the Purchasers to a Seller hereunder shall
not exceed the product of USD 11.6236 and the number of TIW Shares to
which such Seller is entitled as a consequence of the Subject Share
Transfer pursuant to Clause 2.2.
8. COVENANTS
8.1 PRE-COMPLETION COVENANTS
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. In
addition, TIW covenants and agrees that it shall promptly notify the
Sellers upon becoming aware that a Condition has been satisfied.
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 common 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 any of 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 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 each Seller the right to acquire that number of TIW
Securities needed by each Seller to maintain the same
proportionate equity interest in TIW it will have after
completion of the Subject Share Transfer, under the same terms
and conditions as the Rights Offering.
8.3 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, as amended (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, as
amended (the "1933 ACT").
15
8.4 TIW SHARES.
8.4.1 TIW hereby covenants and agrees that (i) it will use best efforts
to make the required filing with Nasdaq with respect to the
quotation of the TIW Shares, as soon as possible, and in any
event within ten (10) days following Completion, and (ii)
throughout the period ending on the eighteen-month anniversary of
the Completion Date, it will use commercially reasonable efforts
to (a) maintain the listing of the class of shares of which the
TIW Shares form a part on a Recognized Exchange, (b) ensure that
the TIW Shares are listed or qualified and are freely tradable in
Canada on the TSX, subject to any restrictions on trading imposed
by this Agreement, and (c) maintain its status as a reporting
company under the 0000 Xxx.
8.4.2 Each Seller hereby covenants and agrees that:
(a) if required by any applicable Securities Laws, it will
assist TIW or Clearwave, as the case may be, in filing such
reports, undertakings and other documents with respect to
the transfer of the Subject Shares and the issue of the TIW
Shares as may be required of TIW or Clearwave, 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 associated with such
filings;
(b) it will comply with its obligations under applicable
Securities Laws regarding disclosure of its acquisition, or
in the future, as the case may be, disposition of TIW Shares
and, if required, file such reports or other documents with
any relevant securities commission or other regulatory
authority and issue such press release disclosing such
acquisition or disposition;
(c) it will not resell the TIW Shares in Canada, in The
Netherlands or in the United States except in accordance
with the Securities Laws; and
(d) the share certificates in relation to the TIW Shares to be
received by the Exempt Sellers shall have the legends set
forth on Schedule 9, and the share certificates in relation
to the TIW Shares to be received by Sellers other than the
Exempt Sellers shall have the legends set forth on Schedule
10.
8.5 LOCK-UP.
8.5.1 Subject to the provisions of Clause 8.7, each Seller as regards
the TIW Shares acquired by it under this Agreement covenants and
agrees that, unless TIW consents in writing, it will not,
directly or indirectly, (a) 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
16
owned by a Seller in accordance with the Securities Laws and
common shares of TIW that may be issued upon exercise of any
option or warrant or securities convertible or exchangeable for
common shares of TIW beneficially owned by a Seller) or (b) enter
into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or
risks of ownership of the common shares of TIW, whether any such
transaction described in clause (a) or (b) above (a "PROHIBITED
SHARE TRANSACTION") is to be settled by delivery of common shares
of TIW or other securities, in cash or otherwise, for a period
(the "LOCK-UP PERIOD") from the date hereof to up to twelve
months after the Completion Date, with the partial release from
such lock-up to occur on the first business day in each
successive period of 45 days starting from 45th day after the
Completion Date (each such day, a "RELEASE DATE"), as to 5%, 5%,
18.75%, 18.75%, 7.5%, 7.5%, 18.75% and 18.75%, respectively, of
the TIW Shares on each Release Date, and the certificates
evidencing such TIW Shares shall bear a legend evidencing the
transfer restrictions provided for in this Clause 8.5.1.
8.5.2 For the avoidance of doubt, Clause 8.5.1 shall not apply to a
sale, transfer, disposal or other transaction of a nature
described in Clause 8.5.1 in respect of shares of TIW acquired by
a Seller other than the TIW Shares acquired by the Sellers as a
result of the consummation of the Subject Share Transfer,
provided such shares are not acquired in the context of a
derivatives or monetization transaction regarding the TIW Shares
acquired hereunder.
8.5.3 If a Seller materially breaches its covenants under Clause
8.5.1, the Lock-Up Period shall automatically be extended to
twelve (12) months from the Completion Date for all the TIW
Shares that such breaching party holds as a result of the
consummation of the Subject Share Transfer hereunder and such
breaching party shall no longer benefit from the rights set forth
under Clause 8.7 hereof; provided, however, that this shall not
prevent the non-breaching parties from seeking any other
available remedy against this breach and shall not limit in any
way the claim resulting from such breach, if any.
8.5.4 Notwithstanding Clause 8.5.1 but subject to Clause 8.5.3, the
TIW Shares acquired by the Sellers as a result of the
consummation of the Subject Share Transfer may be sold pursuant
to Clause 8.7, provided, however, that such TIW Shares to be sold
pursuant to Clause 8.7 will be taken in the following
chronological order: (i) first, from the TIW Shares no longer
subject to the Lock-Up Period, (ii) next, from the next tranche
to be released from the Lock-Up Period immediately after the
Secondary Offering (as defined below), and (iii) thereafter, from
the subsequent tranches to be released from the Lock-Up Period.
8.5.5 Upon the release of any TIW Shares from the Lock-up Period , TIW
shall, upon the request of and without charge to any Seller, (i)
instruct the transfer agent to replace any share certificate
relating to such TIW Shares with a new share certificate, which
new share certificate shall not evidence the transfer
restrictions provided for in Clause 8.5.1, and (ii) provide such
evidence as the transfer agent shall require that such TIW Shares
are no longer subject to the Lock-Up Period and otherwise
generally co-operate with the Sellers in the issuance of new
share certificates in connection with any permitted transfer by
them of the TIW Shares.
17
8.5.6 Notwithstanding the foregoing, (i) the Lock-Up Period shall
immediately terminate upon the occurrence of (a) a Change of
Control in respect of TIW or (b) a material breach by TIW of its
obligations under Clause 8.7, and (ii) Clause 8.5.1 shall not
restrict or prevent any Seller from tendering any or all of the
TIW Shares in any public tender or third party offer for shares
of common stock of TIW which public tender or third party offer,
if successful, could result in a Change of Control in respect of
TIW (it being understood that if such TIW Shares are not acquired
in such offer for any reason, the provisions of this Clause 8.5
shall be deemed to have otherwise remained in force without
interruption with respect to such tendered TIW Shares).
8.6 REORGANIZATION EVENT.
If there shall occur between the date hereof and the Completion Date:
(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 lieu of the TIW Shares any Seller is entitled to receive hereunder,
such Seller shall instead be entitled to receive and shall accept, in
lieu of common shares of TIW, such other securities which such Seller
would have been entitled to receive as a result of such Reorganization
Event had such Seller been a holder of common shares of TIW at the time
of such Reorganization Event.
8.7 CONCURRENT REGISTRATION RIGHTS.
Provided that the Sellers have complied in all material respects with
all their obligations under this Agreement, if at any time during the
period of eighteen (18) months after the Completion Date, TIW shall
determine to register under the 1933 Act or effect the qualification
under Canadian Securities Laws (as defined in the Registration Rights
Agreement), or effect a registration or qualification under the
applicable laws and listing rules with respect to any exchange on which
the common shares of TIW are listed (the "OTHER TIW EXCHANGE"), or so
registers or qualifies, any of its equity securities (or securities
convertible or exchangeable into equity securities) in a secondary
offering in which any Existing Shareholder participates (the "SECONDARY
OFFERING"), (a) TIW shall give written notice thereof to each Seller as
soon as practicable after TIW determines to register or qualify
securities under a Secondary Offering and each such notice shall
include a list of the jurisdictions in which TIW intends to attempt to
qualify such securities or the distribution thereof, as applicable,
under the 1933 Act, applicable blue sky or other state securities laws
or Canadian Securities Laws (as defined in the Registration Rights
Agreement) or the applicable laws and rules with respect to the Other
TIW Exchange, as applicable, and (b) each Seller shall be entitled, in
addition to any rights any Seller may have under any other agreement
pertaining to registration of securities of TIW that such Seller may
hold, to have TIW register or qualify, concurrently with the Secondary
Offering, (the "CONCURRENT SECONDARY OFFERING"), a number of TIW Shares
in the same ratio to the total number of TIW Shares it then holds as
the aggregate number of equity securities of TIW to be included by the
Existing Shareholders in the Secondary Offering bears to the aggregate
number of equity securities that such Existing
18
Shareholders then hold, and that is specified in a written request or
requests (which may specify all or any part of such TIW Shares, as the
case may be) made by each Seller in good faith within ten (10) days
after the date written notice is delivered by TIW, subject to the
right of TIW to delay, or not to proceed with, such Secondary Offering
and Concurrent Secondary Offering pursuant to the terms of the
Registration Rights Agreement, on the following terms and conditions:
8.7.1 The underwriter for the Secondary Offering and the Concurrent
Secondary Offering shall be chosen by TIW or as may be otherwise
provided for in the Registration Rights Agreement, and each
Seller that intends to include its TIW Shares in such
registration or qualification shall (together with TIW and any
other shareholders distributing their securities through such
underwriting) enter into an underwriting agreement in customary
form with the underwriter(s) (including, without limitation,
customary lock-up provisions). Notwithstanding any other
provision of this Clause 8.7, if the managing underwriter(s)
advise(s) the participating shareholders and TIW in writing that
marketing factors require a limitation on the number of
securities to be underwritten, then the number of securities to
be included in such registrations or qualifications under the
Secondary Offering and the Concurrent Secondary Offering shall be
allotted pro rata among the participating shareholders in the
registered offering, including, without limitation, the Existing
Shareholders and the Sellers, as the case may be, based upon the
number of securities owned by such holders at the relevant time,
provided however that in the case of the Sellers, the pro rata
allocation shall only be based upon the number of TIW Shares
acquired hereunder owned by such holders at the relevant time.
8.7.2 Notwithstanding the request made pursuant to Clause 8.7, each
Seller shall have the right to withdraw its securities from any
Concurrent Secondary Offering between the time the terms of such
Concurrent Secondary Offering are agreed and the underwriting
agreement related thereto is executed, provided, however, that if
such Seller elects to withdraw its securities from such
Concurrent Secondary Offering, it must give immediate oral
notice, followed as soon thereafter as practicable by written
notice, to TIW and the underwriter(s), it being understood that
if such Seller executes the underwriting agreement it shall be
deemed to have waived its rights under this Clause 8.7.2. Any
securities excluded or withdrawn from such underwriting agreement
shall not be included in such registration or qualification.
8.7.3 TIW shall pay all Registration Expenses, as hereinafter defined,
incurred by TIW and the Sellers, as the case may be, in
connection with complying with their obligations pursuant to this
Agreement, provided, that such expenses shall not include Selling
Expenses, as hereinafter defined. Selling Expenses shall be borne
by the Sellers pro rata on the basis of the number of the
securities so registered and sold by all participants. For the
purposes of this Clause, (i) "REGISTRATION EXPENSES" shall mean
all expenses incident to TIW's and the Sellers' performance of or
compliance with their obligations under this Clause 8.7 and
Clause 8.10, including, without limitation, all SEC, National
Association of Securities Dealers ("NASD") and stock exchange,
Nasdaq, TSX, Canadian Securities Commission or other applicable
Canadian securities regulatory authority registration, listing
and filing fees and expenses, fees and
19
expenses of compliance with applicable state securities or "blue
sky" laws or other Securities Laws (including, without
limitation, all fees and disbursements of counsel for the
underwriters in connection with "blue sky" qualifications of
common shares), printing expenses, escrow fees, messenger and
delivery expenses, fees and disbursements of counsel for TIW and
all independent certified public accountants or chartered
accountants (including where applicable the expenses of any
annual audit and "cold comfort" letters required by or incident
to such performance and compliance), the disbursements of
underwriters customarily paid in connection with secondary
registered public sales of securities (including the fees and
expenses of any "qualified independent underwriter" required by
the NASD), fees of one U.S. and one Canadian counsel, as
required, for all the Sellers participating in the Secondary
Offering (which fees shall not exceed USD 20,000 in the aggregate
per registration), fees and expenses of any special experts
retained by TIW in connection with such registration, and fees
and expenses of other persons retained by TIW (but not including
any Selling Expenses) and (ii) "SELLING EXPENSES" shall mean all
underwriting discounts and fees and selling commissions and stock
transfer taxes, if any, attributable to the sale of securities
shares by the selling shareholders.
8.7.4 None of the Sellers shall be required to make any
representations or warranties in connection with any registration
or qualification other than representations and warranties as to
(i) its ownership of its TIW Shares to be sold or transferred
free and clear of all liens, claims and encumbrances, (ii) its
power and authority to effect such transfer and (iii) such
matters pertaining to compliance with Securities Laws as may be
reasonably requested. Each Seller shall be obligated to provide
an indemnity pursuant to any underwriting arrangements only with
respect to information provided by it, any indemnity under any
underwriting arrangements shall be several, not joint and
several, among the Sellers selling TIW Shares and the liability
of each such Seller will be in proportion to, and such liability
will be limited to, the net amount received by each such Seller
from the sale of its TIW Shares pursuant to such registration or
qualification; provided, however, that TIW shall not be obligated
to provide to the underwriters any indemnification regarding
matters described in (i) through (iii) above.
8.7.5 If any shareholder of TIW benefiting from registration rights,
including, without limitation, the parties to this Agreement,
shall determine not to participate in a Secondary Offering or
Concurrent Secondary Offering, (i) other participating
shareholders in the Secondary Offering and Concurrent Secondary
Offering shall have the right to include in such Secondary
Offering and Concurrent Secondary Offering additional securities
in an amount up to their respective pro rata share of the
securities so withdrawn, and (ii) such non-participating
shareholder shall not be prevented from participating in
subsequent Secondary Offerings or Concurrent Secondary Offerings.
8.7.6 The rights under this Clause 8.7 may be exercised, with respect
to an unlimited number of registrations or qualifications,
whether such registration or qualification is done under blue sky
laws or other compliance, or Canadian Securities Laws or other
compliance, provided however that such rights are
20
exercised (i) within the period prescribed in this Clause 8.7 and
(ii) concurrently with, and pursuant to the same terms and
conditions (other than specified differences provided in this
Agreement) as, a Secondary Offering. The TIW Shares permitted to
be included and so included in any Concurrent Secondary Offering
shall be covered by the applicable agreement with the
underwriters with respect to the Secondary Offering by the
Existing Shareholders on the same terms as the purchase,
underwriting or other arrangement with the Existing Shareholders
in such agreement except as provided herein and customary for
transactions of the kind contemplated.
8.7.7 In the event that any Seller shall waive the Condition set forth
in Schedule 1, Part A, paragraph 5, the rights of such Seller
under this Clause 8.7 shall not apply to the extent that such
rights shall conflict with the rights of the Existing
Shareholders under the Registration Rights Agreement.
8.8 SECONDARY OFFERING BEFORE COMPLETION DATE.
If TIW proposes to close a secondary offering between the date hereof
and the Completion Date in which the Sellers, or any of them, would
have been able to participate had the Completion Date occurred prior to
the date of such offering, then TIW shall (i) effect a primary issuance
simultaneously with such secondary offering of a number of common
shares of TIW designated by the Sellers, which number of common shares
shall not exceed the number of TIW Shares that the Sellers would have
been entitled to sell in the Concurrent Secondary Offering pursuant to
Clause 8.7 and (ii) on the Completion Date, acquire the corresponding
portion of the Subject Shares for cash at a price per share equal to
the product of (a) the exchange ratio set forth in Clause 2.2 and (b)
the offer price per share pursuant to the Secondary Offering less
Selling Expenses per share, in lieu of the issuance of such number of
TIW Shares.
8.9 WAIVER OF RIGHTS.
The Sellers and Purchasers agree (subject, in the case of each Seller,
to Completion occurring with respect to such Seller and in the case of
Purchasers, with respect to each Seller to Completion occurring with
respect to such Seller) that they hereby waive any and all rights they
may have under sections 8 and 10 of the Shareholders Agreement in
respect of the transactions contemplated hereby. In addition, the
Sellers and TIW agree to suspend the operation of sections 13.1 and 14
of the Shareholders' Agreement, as well as the terms of the Unanimous
Shareholders' Resolution dated as of 3 December 1999, as amended and
restated (the "UNANIMOUS SHAREHOLDERS RESOLUTION"), until the
Completion Date, it being understood that the Shareholders' Agreement
will be terminated and the Unanimous Shareholders' Resolution will
cease to have any effect as between the Purchasers and a Seller if and
when Completion has occurred in respect of such Seller.
8.10 REGISTRATION OF TIW SHARES ISSUED TO ADVENT SELLERS.
TIW agrees to use commercially reasonable efforts to arrange for the
TIW Shares issued to the Advent Sellers to be registered for resale
under the 1933 Act pursuant to a registration statement in accordance
with the terms set forth in Schedule 6.
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8.11 DUTCH SECURITIES LAWS SELLING RESTRICTIONS.
The TIW Shares are not and will not be offered in or from The
Netherlands other than to persons who trade or invest in securities in
the conduct of their profession or trade as referred to in article 2 of
the Exemption Regulation issued under the 1995 Act on the Supervision
of the Securities Trade (VRIJSTELLINGSREGELING WET TOEZICHT
EFFECTENVERKEER 1995), which includes banks, securities intermediaries
(including dealers and brokers), insurance companies, pension funds,
other institutional investors and commercial enterprises, which as an
ancillary activity regularly invest in securities.
8.12 REMOVAL OF U.S. SECURITIES LAW TRANSFER RESTRICTION LEGENDS.
The legends required by Clause 8.4.2(d) will be removed by delivery of
substitute certificate(s) without such legend in connection with a
sale:
8.12.1 made pursuant to Regulation S under the Securities Act upon
delivery of the certificate representing the TIW Shares so sold
and a duly executed declaration of a Seller, in a form
satisfactory to TIW's transfer agent and TIW acting reasonably:
(a) stating that the sale of the securities represented
thereby is being made in compliance with Rule 904 of
Regulation S under the 1933 Act; and
(b) certifying that:
(i) the offer of such securities was not made to a person
in the United States and either (x) at the time the
buy order was originated, the buyer was outside the
United States, or such Seller and any person acting
on its behalf reasonably believe that the buyer was
outside the United States, or (y) the transaction was
executed in, on or through the facilities of the TSX
and neither such Seller nor any person acting on its
behalf knows that the transaction has been
prearranged with a buyer in the United States;
(ii) neither such Seller nor any person acting on its
behalf engaged in any directed selling efforts in
connection with the offer and sale of such
securities;
(iii)the sale is bona fide and not for the purpose of
"washing off" resale restrictions imposed because the
securities are "restricted securities";
(iv) the sale is not a transaction or part of a series of
transactions which, although in technical compliance
with Regulation S under the 1933 Act is part of a
plan or scheme to evade the registration requirements
of the 1933 Act; and
(v) the Seller is not an "affiliate" of TIW within the
meaning of Regulation S under the 1933 Act.
(c) Terms used in this Clause 8.12.1 have the meanings given
to them by Regulation S under the 1933 Act.
22
8.12.2 made (i) pursuant to an effective registration statement under
the 1933 Act, (ii) after expiration of the 40-day distribution
compliance period required by Regulation S under the 1933 Act, in
the case of TIW Shares issued to Exempt Sellers, (iii) in
reliance on and in accordance with Rule 144 under the 1933 Act,
or (iv) in reliance upon a letter from the staff of the SEC or an
opinion of recognized securities law counsel in form and
substance satisfactory to TIW and its counsel, acting reasonably,
to the effect that such legend is not required for purposes of
the 1933 Act and delivered to TIW's transfer agent and TIW. In
the event of a sale or other disposition by a Seller pursuant to
Rule 144 under the 1933 Act (other than pursuant to Rule 144(k))
of TIW Shares, if reasonably requested by TIW such Seller will
supply TIW with evidence of compliance with such Rule. Upon
receipt of such evidence of compliance the transfer agent shall
effectuate the transfer of the TIW Shares sold as indicated in
the letter evidencing such compliance. After expiration of the
40-day distribution compliance period required by Regulation S
under the 1933 Act, Exempt Sellers shall also have the right,
whether or not related to a sale of the TIW Shares sold to such
Exempt Sellers pursuant to this Agreement, to request that TIW
(i) instruct the transfer agent to replace any share certificate
relating to such TIW Shares with a new share certificate, which
new share certificate shall not evidence the transfer
restrictions provided for in Clause 8.4.2(d), and (ii) provide
such evidence as the transfer agent shall require that such TIW
Shares are no longer subject to the distribution compliance
period and otherwise generally co-operate with the Sellers in the
issuance of new share certificates in connection with any
permitted transfer by them of the TIW Shares.
9. NOTICES
9.1 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 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):
9.1.1 in the case of TIW, to:
Telesystem International Wireless Inc.
0000 Xxxx Xxxxxxxx Xxxxxx West, 38th Floor
Xxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
Fax: x0 000 000 0000
Attn: General Counsel
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9.1.2 in the case of Clearwave, to:
c/o Telesystem International Wireless Inc.
0000 Xxxx Xxxxxxxx Xxxxxx West, 38th Floor
Xxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
Fax: x0 000 000 0000
Attn: General Counsel
9.1.3 in the case of a Seller, to the address set forth for such
Seller on Schedule 8 hereto, in each case with a copy to:
Weil, Gotshal & Xxxxxx
Xxx Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Fax: x00 00 0000 0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
9.2 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.
9.3 Any Notice given by a Seller to TIW will be deemed to be given to all
Purchasers and any Notice given to a Seller by TIW will be deemed to
be given by all Purchasers.
10. GENERAL PROVISIONS
10.1 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 any party may, by written notice
to all parties, 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 (whether as
the result of a merger or otherwise) and permitted assigns and no
assignment by a party of its rights and obligations under this
Agreement to a permitted assignee shall relieve the assigning party of
its obligations under this Agreement.
10.2 ENTIRE AGREEMENT
10.2.1 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"), together with the letter agreements with each Seller
dated August 9 or 10, 2004, as applicable that pertains to the
treatment of confidential information, 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.
24
10.2.2 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 10.2 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.
10.3 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 any 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.
10.4 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.
10.5 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.
10.6 DISCLOSURE
The parties agree that letters dated August 9 or 10, 2004 were signed,
pertaining to the treatment of confidential information, which
provisions shall form an integral part hereof. The parties further
acknowledge that (i) the terms and conditions of this Agreement are
strictly confidential and the parties agree to hold such terms and
conditions in strict confidence and not to disclose them to any person
until the
25
Completion Date, 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,
unless such information, at the time of disclosure, is within the
public domain, or, after disclosure, becomes readily and lawfully
available to the industry or the public, other than by a breach of
this Agreement, other than their respective shareholders, directors,
general and limited partners, 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; (ii) any information
relating to the negotiation of this Agreement and any information
exchanged between the parties in contemplation of entering into this
Agreement or consummating the transactions contemplated hereby is
strictly confidential and the parties agree to hold such information
in strict confidence and not to disclose it to any person before or
after Completion, 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,
unless such information, at the time of disclosure, is within the
public domain, or, after disclosure, becomes readily and lawfully
available to the industry or the public, other than by a breach of
this Agreement, other than their respective shareholders, directors,
general and limited partners, employees and representatives, it being
understood that the disclosing party shall have the obligation to
inform any person to whom such information is disclosed of the
confidential nature thereof; and (iii) no party shall make any
announcement with regard to this Agreement and the transactions
contemplated hereby without obtaining the prior written consent of the
other parties hereto, which consent shall not be unreasonably withheld
or delayed.
10.7 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, 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.
10.8 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. The parties shall endeavour in good faith
negotiations to modify any invalid, illegal or unenforceable provision
of this Agreement to the extent necessary to make such provision valid,
legal and enforceable. Each of the parties hereto agrees that it shall
not allege the invalidity, illegality or unenforceability of this
Agreement, or any one or more of the provisions contained herein.
26
10.9 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.
10.10 COSTS
Subject to Clause 8.7.3, the Sellers 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 the
finalization of the transactions contemplated hereby, 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 reasonable fees and
expenses of legal advisers, accountants and other professional
advisers) incurred by the Sellers directly related to the negotiation
and the finalization of the transactions contemplated hereby up to, but
not in excess of (pound)200,000 for all Sellers in aggregate.
Notwithstanding the foregoing, in the event that this Agreement is not
completed as a result of a Seller's failure to complete the
transactions contemplated hereby in breach of this Agreement, then the
Purchasers shall not be obligated to pay any expenses of such Seller
(but such Seller only) as provided in sub-Clause (ii) hereof.
11. GOVERNING LAW AND DISPUTE RESOLUTION
11.1 GOVERNING LAW
This Agreement shall be governed by, and construed in all respects in
accordance with, the laws of the State of New York, in the United
States of America, without regard to whether the choice of law rules
under New York law would result in the application of the law of
another jurisdiction.
11.2 ARBITRATION
11.2.1 Any dispute, controversy or claim arising out of or relating to
this Agreement, or the breach, termination or invalidity hereof,
shall be settled by arbitration in accordance with the UNCITRAL
Arbitration Rules as at present in force. There shall be one
arbitrator and the appointing authority shall be the London Court
of International Arbitration. The seat and place of arbitration
shall be London, England and the English language shall be used
throughout the arbitral proceedings. The parties hereby waive any
rights under the Arbitration Xxx 0000 or otherwise to appeal any
arbitration award to, or to seek a determination of a preliminary
point of law by, the courts of England. The arbitral tribunal
shall not be authorised to take or provide, and each of the
parties agrees that it shall not seek from any judicial
authority, any interim measures of protection or pre-award relief
against any other party, any provisions of UNCITRAL Arbitration
Rules notwithstanding.
11.2.2 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.
27
IN WITNESS WHEREOF, the parties hereto, being duly authorised and intending to
be legally bound, have caused this Agreement to be duly executed and delivered
as of the date first above written.
TELESYSTEM INTERNATIONAL WIRELESS INC.
By: /s/ XXXXX XXXXXXXX
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Name: Xxxxx Xxxxxxxx
Title: Executive Vice President and Chief Financial Officer
By: /s/ XXXXXXXX XXXXXX
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Name: Xxxxxxxx Xxxxxx
Title: General Counsel & Secretary
CLEARWAVE N.V.
By: /s/ ILLEGIBLE
-----------------------------------------------------------
Name: Illegible
Title: Authorized signatory of Telesystem
International Wireless Corporation N.V.,
Managing Director
ABN AMRO VENTURES B.V.
By: /s/ XXXXXXX XXXXXXXX /s/ XXXXXX XXXXXXX
------------------------------------- -------------------------------
Name: Xxxxxxx Xxxxxxxx and Name: Xxxxxx Xxxxxxx
Title: Executive Director Title: Investment Manager
PART'COM S.A.
By: /s/ HENRI DE LAPPARENT
------------------------------------------------
Henri de Lapparent, Chief Executive Officer
MEDIATEL CAPITAL
By: Mediatel Management
By: /s/ HENRI DE LAPPARENT /s/ XXXXXX XX XXXXXXX
---------------------------------------- ---------------------------------
Name: Henri de Lapparent Name: Xxxxxx xx Xxxxxxx
Title: Board Member Title: Board Member
X.X. Xxxxxx Partners (BHCA), L.P.
By: JPMP Master Fund Manager, L.P., its General Partner
By: JPMP Capital Corp. ,its General Partner
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
ADVENT PARTNERS LIMITED PARTNERSHIP
By: Advent International Corporation, General Partner
By: /s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx, Vice President
ADVENT PRIVATE EQUITY FUND - CENTRAL EUROPE LIMITED PARTNERSHIP
By: Advent Central Europe Management Limited Partnership, General Partner
By: Advent International Limited Partnership, General Partner
By: Advent International Corporation, General Partner
By: /s/ XXXXX X. XXXXXXXX
------------------------------------------------------------------
Xxxxx X. Xxxxxxxx, Vice President
ACEE II-A CO-INVESTMENT FUND LIMITED PARTNERSHIP
ADVENT CENTRAL & EASTERN EUROPE II, LIMITED PARTNERSHIP
ADVENT CENTRAL & EASTERN EUROPE II-A LIMITED PARTNERSHIP
ADVENT CENTRAL & EASTERN EUROPE II-B LIMITED PARTNERSHIP
ADVENT CENTRAL & EASTERN EUROPE II-L LIMITED PARTNERSHIP
ADVENT PGGM GLOBAL LIMITED PARTNERSHIP
THE CZECH AND SLOVAK PRIVATE EQUITY FUND L.P.
By: Advent International Limited Partnership, General Partners
By: Advent International Corporation, General Partner
By: /s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx, Vice President
PARNIB B.V. , REPRESENTED BY ALPINVEST PARTNERS N.V.
By: /s/ P.F.F, DE VAN DER XXXXXXXX /s/ X. XXXXXXX
------------------------------- -----------------------------
Name: P.F.F. van der Shueren X. Xxxxxxx
Title: Head Legal Affairs Legal Counsel
EEIF CZECH N.V.
By: /s/ XXXXX XXXXXX
-----------------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Attorney In Fact
EMERGING EUROPE INFRASTRUCTURE FUND C.V.
By its general partner: AIG Emerging Europe Infrastructure Management L.P.
By its general partner: AIG Emerging Europe Infrastructure Management Ltd.
By: /s/ XXXXX XXXXXX
-----------------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Attorney In Fact
THE EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT
By: /s/ IZZET GUNEY
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Izzet Guney
Director - Telecoms, Informatics and Media
