Exhibit 4.7
EXECUTION VERSION
DATED 10 FEBRUARY 2004
(1) EEIF CZECH N.V.
(2) EMERGING EUROPE INFRASTRUCTURE FUND C.V.
(3) CLEARWAVE N.V.
- AND -
(4) TELESYSTEM INTERNATIONAL WIRELESS INC
SHARE SALE AND PURCHASE AGREEMENT
XXXXXX, XXXX & XXXXXXXX
A MULTINATIONAL PARTNERSHIP OF SOLICITORS
AND REGISTERED FOREIGN LAWYERS
Xxxxxxxxx Xxxxx
0-0 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX
000 0000 0000 000 0000 0000 Fax
Ref: 26449-00004
CONTENTS
CLAUSE SUBJECT MATTER PAGE
1. DEFINITIONS AND INTERPRETATION................................... 2
2. SHARE SALE AND PURCHASE AND USE OF PROCEEDS...................... 9
3. CONDITIONS PRECEDENT............................................. 9
4. COMPLETION....................................................... 10
5. WARRANTIES....................................................... 10
6. TERMINATION...................................................... 12
7. INDEMNIFICATION.................................................. 12
8. COVENANTS........................................................ 12
9. LIMITATIONS ON LIABILITY......................................... 14
10. NOTICES.......................................................... 15
11. GENERAL PROVISIONS............................................... 17
12. GOVERNING LAW AND DISPUTE RESOLUTION............................. 19
13. EXCLUSION OF CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999........ 20
SCHEDULE 1................................................................ 21
Conditions Precedent...................................................... 21
SCHEDULE 2................................................................ 25
Documents to be executed and/or delivered at Completion................... 25
SCHEDULE 3................................................................ 28
Warranties of ClearWave................................................... 30
SCHEDULE 4................................................................ 31
Warranties of EEIF Czech and EEIF CV...................................... 31
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SHARE SALE AND PURCHASE AGREEMENT
DATE: 10 FEBRUARY 2004
PARTIES:
(1) EEIF CZECH N.V., a corporation duly organized and existing under the
laws of the Netherlands Antilles and having its place of business at De
Xxxxxxxxxx 00 ,Xxxxxxx, xxx Xxxxxxxxxxx Antilles ("EEIF CZECH");
(2) EMERGING EUROPE INFRASTRUCTURE FUND C.V., a limited partnership
(commanditaire vennootschap) existing under the laws of the
Netherlands, with corporate seat in Amsterdam, having its office at
1077 ZX Xxxxxxxxx, Xxxxxxxxxxxxxx 0000, registered at the Trade
Register under number 34122734 ("EEIF CV" and together with EEIF Czech
the "SELLERS");
(3) CLEARWAVE N.V., a company organised and existing under the Laws of The
Netherlands and having its registered office at World Trade Center,
Xxxxxxxxxxxxxx 000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx ("CLEARWAVE");
and
(4) TELESYSTEM INTERNATIONAL WIRELESS INC., a company incorporated under
the Laws of Canada, having its registered office at 0000 Xxxx-Xxxxxxxx
Xxxxxx Xxxx, Xxxxxxxx, Xxxxxx, Xxxxxx, X0X 0X0 ("TIW");
RECITAL:
(A) EEIF Czech and EEIF CV are the beneficial owners of 366,867 and
109,238, respectively, convertible Class B preference shares, par value
(euro)1 per share in the share capital of TIW Czech N.V. a public
limited liability company organised and existing under the laws of The
Netherlands and having its registered seat at World Trade Center,
Xxxxxxxxxxxxxx 000, Xxxxxxxxx 1077XX, The Netherlands ("TIW CZECH").
(B) The Sellers wish to sell certain of the shares they own in TIW Czech to
ClearWave, and ClearWave wishes to purchase such shares, the whole upon
the terms and conditions set forth below.
(C) The Sellers wish to use the proceeds from the sale of the shares of TIW
Czech under this Agreement to purchase common shares in TIW and TIW
wishes to issue and sell such common shares to the Sellers.
(D) The parties acknowledge that the proposed transfer of the shares of TIW
Czech under this Agreement is subject to a right of first refusal (the
"ROFR RIGHTS") of certain other shareholders of TIW Czech under the
terms of a shareholders agreement between ClearWave, TIW, TIW Czech and
the Investors (as defined therein) (the "SHAREHOLDERS") dated May 3,
2001 (the "SHAREHOLDERS AGREEMENT") and that the sending of a notice of
the proposed share transfer together with a signed copy of this
Agreement to the other Shareholders is intended to constitute a valid
notice under section 10.1 of the Shareholders Agreement (the "TIW CZECH
SHARE TRANSFER NOTICE").
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions have the
following meanings:
Term Definition
"ACCOUNTS" TIW's audited accounts for the year
ended 31 December 2002;
"ACCOUNTS DATE" 31 December 2002;
"AFFILIATE" in relation to a specified person, any
person that, directly or indirectly,
through one or more intermediaries, (a)
owns or Controls the specified person,
(b) is owned or Controlled by the
specified person, or (c) is under common
ownership or Control with the specified
person, and in the case of a specified
person that is an individual, will
include such individual's natural
children, current spouse and/or natural
parents, including any trust established
for the benefit of such individual's
natural children, current spouse and/or
natural parents, where "own" means
ownership of more than 50 per cent of
the voting interests or rights of the
specified person;
"AGREEMENT" this Share Sale and Purchase Agreement;
"ARTICLES" the articles of association of TIW Czech
as amended from time to time;
"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 the Czech Republic,
the Netherlands and the Province of
Quebec, Canada, for the transaction of
ordinary business;
"CESKY" Cesky Mobil a.s., a joint stock company,
identification number 25788001, with its
seat at Xxxxxxxxxxx 000, Xxxxxx 00, XXX
000 00, Xxxxx Xxxxxxxx;
"COMPLETION" the completion of the transfer of the
TIW Czech Shares to ClearWave and the
purchase of the TIW Shares by the
Sellers, 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 a.m. on the fifth
Business Day after such date or such
other time and date as the parties may
agree, provided that, in any event, the
Completion Date shall be no earlier than
the earliest date permitted by the
Shareholders Agreement, unless all
Shareholders have, to the satisfaction
of all parties, unconditionally and
irrevocably waived all of their rights
pursuant to the right of first refusal
procedure contained in the Shareholders
Agreement in relation to the
Transaction;
"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;
"CVMQ" the Commission des valeurs mobilieres du
Quebec;
"DEED OF TRANSFER" as defined in Schedule 2 Part A;
"DOLPHIN GROUP" the Subsidiaries of TIWC Europe B.V.;
"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;
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"EXCHANGING SHAREHOLDER" as defined in Clause 8.3 of the Share
Transfer Agreement;
"EXIT AGREEMENT" Amended and Restated Exit Agreement
between Telesystem International
Wireless Corporation N.V., ClearWave
N.V., RomGSM Holdings Limited and the
Investors (as defined therein) dated May
3, 2001;
"FINANCIAL CONDITION" the assets, liabilities (including,
without limitation, contingent
liabilities), business, properties,
operations, financial condition or
financial results of the relevant
entity;
"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
Netherlands, the Czech Republic or
elsewhere;
"INDEMNITY WARRANTIES" in respect of TIW, the Warranties given
by TIW in paragraphs 1, 2, 3, 30, 37 and
41 of Part A of Schedule 3 of the Share
Transfer Agreement and in paragraphs 1,
2, 8 and 9 of Part A of Schedule 3
hereof; in respect of ClearWave, the
Warranties given by ClearWave in
paragraphs 1, 2, 3 and 5 of Part B of
Schedule 3; in respect of EEIF Czech,
the Warranties given by EEIF Czech in
paragraphs 1, 2, 3, 5 and 6 of Part A of
Schedule 4; and, in respect of EEIF CV,
the Warranties given by EEIF CV in
paragraphs 1, 2, 3, 4, 5 and 6 of Part B
of Schedule 4;
"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;
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"MAJOR SHAREHOLDERS" as defined in the Share Transfer
Agreement;
"MANAGEMENT ACCOUNTS" TIW's unaudited profit and loss account
for the period ending September 30,
2003;
"MATERIAL ADVERSE CHANGE" means, with respect to TIW, any event,
circumstance, condition, fact, effect or
other matter which has the effect of
preventing in a material and adverse way
TIW from performing and complying with
any of its obligations under this
Agreement or which is reasonably likely
to result in a Material Adverse Effect
and means, with respect to EEIF Czech,
EEIF CV and ClearWave, any event,
circumstance, condition, fact, effect or
other matter which has the effect of
preventing in a material and adverse way
EEIF Czech, EEIF CV or ClearWave from
performing and complying with any of
their respective obligations under this
Agreement.
"MATERIAL ADVERSE EFFECT" any effect that, individually or in the
aggregate with other effects is, or is
reasonably likely to be, materially
adverse to the Financial Condition of
TIW;
"MOBIFON SHARE TRANSFER" as defined in the Share Transfer
Agreement;.
"NASDAQ" Nasdaq SmallCap Market or Nasdaq
National Market, as the case may be;
"OFFERING" as defined in Clause 8.9 of the Share
Transfer Agreement;
"PURCHASERS" TIW and ClearWave;
"QUEBEC ACT" as defined in Schedule 1, Part A;
"QUEBEC REGULATION" as defined in Schedule 1, Part A;
"ROFR RIGHTS" as defined in Recital (D);
"ROFR PROCEDURE" as defined in Schedule 1 Part A;
"SENIOR MANAGEMENT" each of Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxx
and Xxxxxxxx Xxxxxx;
"SHAREHOLDERS" as defined in Recital (D);
"SHAREHOLDERS AGREEMENT" as defined in Recital (D);
"SHARE SALE AND PURCHASE
DOCUMENTS" as defined in Clause 11.2.1
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"SECURITIES LAWS" means, 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 (the "Regulatory
Authority") and the by-laws, rules and
regulations of the TSX and the Nasdaq,
the 1934 Act and the 1933 Act;
"SELLERS" EEIF Czech and EEIF CV;
"SHARE TRANSFER AGREEMENT" means that Share Transfer Agreement
dated as of the date hereof and entered
into among MobiFon Holdings B.V, TIW and
EEIF Melville B.V.
"SUBSIDIARY" means, (i) with respect to any specified
person:
any corporation, association or other
business entity of which (a) more than
50% of the voting power of the
outstanding voting stock is owned,
directly or indirectly, by such person
and one or more other Subsidiaries of
such person or (b) such person and one
or more other Subsidiaries of such
person has the right to appoint or
remove a majority of the members of its
board of directors or, in the case of an
entity having a two-level board, the
supervisory board; and
(ii) with respect to any partnership,
(a) the sole general partner or the
managing general partner of which is
such person or a Subsidiary of such
person or (b) the only general partners
of which are that person or one or more
Subsidiaries of that person (or any
combination thereof);
"TAXES" all forms of taxation whether direct or
indirect and whether levied by reference
to income, profits, gains, net wealth,
asset values, turnover, added value or
other reference and statutory,
governmental, state, provincial, local
governmental or municipal impositions,
duties, contributions, rates and levies
(including without limitation social
security contributions and any other
payroll taxes), whenever and wherever
imposed (whether imposed by way of a
withholding or a deduction for or on
account of tax or otherwise) and in
respect of any person and all penalties,
charges, costs and interest relating
thereto;
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"TERMINATION DATE" 30 June 2004, or such later date as the
parties may agree;
"TIW CZECH" as defined in Recital (A);
"TIW CZECH PROCEEDS" as defined in Clause 2.2;
"TIW CZECH SHARES" as defined in Clause 2.1;
"TIW CZECH SHARE TRANSFER
NOTICE" as defined in Recital (D);
"TIW GROUP" TIW and its Subsidiaries, excluding the
Dolphin Group;
"TIW GROUP PUBLIC RECORDS" as defined in paragraph 39 of Part A of
Schedule 3;
"TRANSACTION" means the transfer of the TIW Czech
Shares to ClearWave and the purchase of
the TIW Shares by the Sellers pursuant
to this Agreement.
"TRANSFER NOTICE" as defined in Schedule 1 part A;
"TSX" as defined in Schedule 1 Part A;
"USD" denotes the lawful currency from time to
time of the United States of America;
and
"WARRANTIES" the warranties set out in Schedules 3
and 4 hereof, and the warranties given
by TIW in paragraphs 1, 2, 3, 5, 6, 9,
10, 16, 17 and 19 to 42 of Part A of
Schedule 3 of the Share Transfer
Agreement;
"1933 ACT" as defined in Clause 8.3; and
"1934 ACT" as defined in Clause 8.3.
1.2 Interpretation
Any reference in this Agreement to:
1.2.1 a "DAY" shall mean a calendar day;
1.2.2 a "PARTY" or "PARTIES" shall, unless the context otherwise
requires, be construed as a reference to a party or the
parties (as the case may be) to this Agreement;
1.2.3 a "PERSON" shall be construed as a reference to any
individual, firm, corporation, partnership, trust,
incorporated or unincorporated association,
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joint venture, company, Governmental Authority or other entity
of any kind, and shall include any successor(by merger or
otherwise) of such entity; and
1.2.4 a document expressed to be in the "AGREED FORM" means a
document in a form which has been agreed by the parties on or
before execution of this Agreement and signed or initialled by
them or on their behalf, for the purposes of identification.
1.3 Statutes
Any references in this Agreement to statutory provisions shall be
construed as references to those provisions as modified, amended or
re-enacted from time to time.
1.4 Headings
The Clause and Schedule headings are inserted for convenience of
reference only and shall not affect the construction of this Agreement.
1.5 Documents
Any reference in this Agreement to all or any documents or agreements
shall be construed as a reference to those documents or agreements as
the same may have been, or may be from time to time, amended, varied,
supplemented, restated, novated or replaced in accordance with their
respective terms and the terms of this Agreement.
1.6 Clauses and Schedules
Unless the context otherwise requires, references to Recitals, Clauses
and Schedules are references to recitals, clauses hereof and schedules
hereto, and references to this Agreement include the Schedules.
1.7 Gender and Plurals
Any reference to the masculine, feminine or neuter gender respectively
includes the other genders and any reference to the singular includes
the plural (and vice versa).
1.8 Time
Any reference to a time of day is a reference to London time.
1.9 References - General
1.9.1 References to any English legal term for any action, remedy,
method of judicial proceeding, legal document, legal status,
court, official or any legal concept or thing shall in respect
of any jurisdiction other than England be deemed to include
what most nearly approximates in that jurisdiction to the
English legal term
1.9.2 The words "HEREOF", "HEREIN", "HEREUNDER" and words of similar
import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of
this Agreement.
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2. SHARE SALE AND PURCHASE AND USE OF PROCEEDS
2.1 On and with effect from Completion, the Sellers hereby agree to sell
and transfer to ClearWave, and ClearWave hereby agrees to purchase from
the Sellers that aggregate number of convertible Class B preference
shares of TIW Czech which, after giving effect to the MobiFon Share
Transfer and the ROFR Rights, would reduce the Sellers' direct and
indirect ownership in TIW Czech to 13.95% of all issued and outstanding
shares of TIW Czech at the Completion Date, representing a maximum of
98,500 TIW Czech shares (the "TIW CZECH SHARES").
2.2 As consideration for each TIW Czech Share transferred by the Sellers to
ClearWave, ClearWave shall pay to the Sellers or to such Person the
Sellers may direct, USD 131.8840 per TIW Czech Share, for a total of up
to USD 12,990,600 (the "TIW CZECH PROCEEDS").
2.3 The Sellers hereby agree to purchase that number of common shares of
TIW representing an aggregate amount equal to the TIW Czech Proceeds
based on a price of USD 7.8703 per share, up to a maximum of 1,650,595
common shares (the "TIW SHARES") and TIW hereby agrees to issue and
sell to the Sellers the TIW Shares in consideration for the TIW Czech
Proceeds.
2.4 For purpose of clarity, the Sellers acknowledge and agree that the
payment by ClearWave of the TIW Czech Proceeds to TIW, as directed by
the Sellers pursuant to paragraph 2.4 of Schedule 2 Part B, shall
satisfy ClearWave's payment obligation for the TIW Czech Shares under
Clause 2.2.
2.5 For purpose of clarity, TIW acknowledges and agrees that the payment by
ClearWave of the TIW Czech Proceeds to TIW, or as TIW may direct, shall
satisfy the Sellers' payment obligation for the TIW Shares under Clause
2.3.
3. CONDITIONS PRECEDENT
3.1 The obligation of the Sellers to transfer the TIW Czech Shares to
ClearWave under Clause 2 is conditional on the satisfaction of the
Conditions set out in Schedule 1 Part A on or before the Termination
Date and the payment by ClearWave of the TIW Czech Proceeds to the
Sellers, or to such Person as the Sellers may direct, on Completion
under Clause 2.
3.2 The obligation of ClearWave to purchase the TIW Czech Shares under
Clause 2 is conditional on the satisfaction of the Conditions set out
in Schedule 1 Part B on or before the Termination Date.
3.3 The obligation of the Sellers to purchase the TIW Shares under Clause
2.3 is conditional on the satisfaction of the Conditions set out in
Schedule 1 Part C on or before the Termination Date and the purchase of
the TIW Czech Shares by ClearWave from the Sellers on Completion under
Clause 2.
3.4 The obligation of TIW to issue and sell the TIW Shares to the Sellers
under Clause 2.3 is conditional on the satisfaction of the Conditions
set out in Schedule 1 Part D on or before the Termination Date and the
transfer of the TIW Czech Shares by the Sellers to ClearWave on
Completion under Clause 2.
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3.5 The satisfaction of any Conditions set out in Schedule 1 Part A may be
waived (with or without conditions) by the Sellers by written notice to
that effect to ClearWave.
3.6 The satisfaction of any Conditions set out in Schedule 1 Part B may be
waived (with or without conditions) by ClearWave by written notice to
that effect to the Sellers.
3.7 The satisfaction of any Conditions set out in Schedule 1 Part C may be
waived (with or without conditions) by the Sellers by written notice to
that effect to TIW.
3.8 The satisfaction of any Conditions set out in Schedule 1 Part D may be
waived (with or without conditions) by TIW by written notice to that
effect to the Sellers.
3.9 The parties shall use their best efforts to ensure that the Conditions
are satisfied as soon as possible after the date of this Agreement, and
in any event by no later than the Termination Date. For the avoidance
of doubt, neither the Sellers nor the Purchasers shall have any
obligation whatsoever to use best efforts to procure that the
shareholders in TIW Czech either waive or not exercise their ROFR
Rights.
3.10 Should any party become aware of anything which will or may prevent any
of the Conditions from being satisfied it shall forthwith disclose the
same to the other party.
4. COMPLETION
4.1 Completion shall take place at the offices of Stibbe, Stibbetoren,
Strawinskylaan 2001, 1077 ZZ Amsterdam on the Completion Date or at
such other place as shall be mutually agreed between the Purchasers and
the Sellers when all (but not some only) of the events described in
this Clause 4 shall occur.
4.2 At Completion, the Sellers shall deliver to ClearWave those documents
and take those actions as set out in Schedule 2 Part B and shall
transfer the TIW Czech Shares to ClearWave with full title guarantee,
free from any Encumbrances other than those created under the
Shareholders Agreement and the Exit Agreement and, together with all
rights now or hereafter attaching or accruing thereto, including all
rights to any dividend or other distribution declared, made or paid
after the date of this Agreement.
4.3 At Completion, ClearWave shall deliver to the Sellers those documents
and take those actions as set out in Schedule 2 Part A and shall pay to
the Sellers, or to such Person as the Sellers may direct, the TIW Czech
Proceeds.
4.4 At Completion, TIW shall deliver to the Sellers those documents and
take those actions as set out in Schedule 2 Part C and shall allot and
issue the TIW Shares to the Sellers as validly allotted and issued
fully paid and non-assessable common shares of TIW, with full title
guarantee, free from any Encumbrances, together with all rights now or
hereafter attaching or accruing thereto, including all rights to any
dividend or other distribution declared, made or paid after the date of
this Agreement.
5. WARRANTIES
5.1 TIW makes the Warranties set out in Schedule 3 Part A hereof, and the
warranties given by TIW in paragraphs 1, 2, 3, 5, 6, 9, 10, 16, 17 and
19 to 42 of Part A of Schedule 3 of the Share Transfer Agreement,
subject to the disclosures set forth in Schedule 6 of the Share
Transfer Agreement, to and for the benefit of the Sellers and
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their successors in title 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 and their successors in title as of the date hereof and as of
the Completion Date. The Warranties made by TIW and ClearWave as of the
Completion Date shall be made subject to any further disclosures to the
Sellers on or before Completion in a form and substance satisfactory to
the Sellers. For the avoidance of doubt, any such further disclosures
made to the Sellers which are not in a form and substance satisfactory
to the Sellers shall entitle the Sellers to elect not to proceed to
Completion. For the purposes of repeating the Warranties as of the
Completion Date, an express or implied reference in a Warranty to the
"date of this Agreement" is to be construed as a reference to the
Completion Date.
5.2 EEIF Czech makes the Warranties set out in Part A of Schedule 4 to and
for the benefit of the Purchasers and their successors in title as of
the date hereof and as of the Completion Date. EEIF CV makes the
Warranties set out in Part B of Schedule 4 to and for the benefit of
the Purchasers and their successors in title as of the date hereof and
as of the Completion Date. The Warranties made by the Sellers as of the
Completion Date shall be made subject to any further disclosures made
by the Sellers on or before Completion in a form and substance
satisfactory to the Purchasers. For the avoidance of doubt, any such
further disclosures made to the Purchasers which are not in a form and
substance satisfactory to the Purchasers shall entitle the Purchasers
to elect not to proceed to Completion. For the purposes of repeating
the Warranties as of the Completion Date, an express or implied
reference in a Warranty to the "date of this Agreement" is to be
construed as a reference to the Completion Date.
5.3 The parties are aware and acknowledge that they have entered into this
Agreement in reliance on the Warranties given by each party which have
induced it to enter into this Agreement.
5.4 The rights and remedies of a party in respect of any breach of the
Warranties by the other party shall not be affected by any information
of which such non-breaching party has knowledge (however acquired and
whether actual, imputed or constructive) relating to the other party or
the transactions contemplated in this Agreement, and shall survive
Completion and shall not in any respect be extinguished or affected in
any way by Completion. Each of the Purchasers and Sellers acknowledges
that, at the date hereof, it does not have knowledge of, nor has it
been informed in writing by its advisors that any such advisor is aware
of any breach or potential breach of Warranty and such acknowledgement
shall be deemed repeated by each party as of the Completion Date.
5.5 Each of the Warranties set out in each paragraph of Schedule 3 and
Schedule 4 are separate and independent and unless otherwise expressly
provided shall not be limited by reference to any other Warranty or
anything in this Agreement.
5.6 If in respect of, or in connection with, any breach of any of the
Warranties any sum payable by way of compensation is subject to Taxes
(which definition shall, for the purpose of this Clause 5.6 only, not
include tax on net income), then any such further amount shall be paid
so as to secure that the net amount received is equal to the amount of
compensation due to it in respect of such breach, less any sums
recovered under insurance policies held by the party not in breach.
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6. TERMINATION
6.1 If, on or before the Completion Date, either (i) the Purchasers
consider that either EEIF CV or EEIF Czech are in breach of a Warranty
or another provision of this Agreement, the effect of which is to give
rise to a Material Adverse Change, then the Purchasers may by written
notice to the Sellers elect to proceed to Completion or terminate this
Agreement; or (ii) the Sellers consider that either ClearWave or TIW 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, then the
Sellers may by written notice to the Purchasers elect to proceed to
Completion or terminate this Agreement.
6.2 If Completion does not occur on or before the Termination Date this
Agreement shall terminate.
6.3 If either the Purchasers or Sellers terminate this Agreement pursuant
to Clause 6.1 or this Agreement terminates automatically by virtue of
Clause 6.2, each party's further rights and obligations cease
immediately on termination, provided however, that (i) termination does
not affect a party's accrued rights and obligations at the date of
termination and that Clauses 10 (Notices), 11.2 (Entire Agreement), 12
(Governing Law and Dispute Resolution) and 13 (Exclusion of Contract
(Rights of Third Parties) Act 1999) shall survive beyond such
termination.
6.4 Except as set out in this Clause 6, no party may terminate or rescind
this Agreement, either before or after Completion.
7. INDEMNIFICATION
Without diminishing the obligations of any party to mitigate any loss,
in the event that any of the Indemnity Warranties are breached by the
Purchasers or Sellers (the "BREACHING PARTY") respectively, the
Breaching Party agrees to indemnify the other party (the "NON-BREACHING
PARTY") from and against:
(a) the entirety of any losses, excluding any
consequential losses, which the Non-Breaching Party
actually suffers and which result from, arise out of,
relate to or are caused by the breach of an Indemnity
Warranty; and
(b) all direct costs which the Non-Breaching Party may
incur whether before or after the start of an action
in connection with (i) the settlement of a claim
against the Breaching Party in respect of a breach or
an alleged breach of an Indemnity Warranty or the
enforcement of a settlement; and (ii) legal
proceedings against the Breaching Party in respect of
a breach or an alleged breach of an Indemnity
Warranty in which judgement is given for the
Non-Breaching Party or the enforcement of the
judgement.
8. COVENANTS
8.1 PRE-COMPLETION COVENANTS
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8.1.1 Between the date hereof and the Completion Date, each party
hereto covenants and agrees that it shall promptly notify the
other parties of the occurrence, or non-occurrence of any
event, which would be likely to cause any Conditions to be
satisfied by it not to be satisfied;
8.1.2 The Sellers hereby covenant and agree that they will send the
TIW Czech Share Transfer Notice to the other Shareholders as
soon as practicable after the date hereof and in any event, no
later than the third Business Day thereafter.
8.2 BUSINESS OF TIW. TIW covenants and agrees that it shall act in
accordance with the terms and conditions of Clause 8.2.1 to 8.2.5 of
the Share Transfer Agreement.
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 (the "1934 ACT"), nor exempt from the filing requirements of the
1934 Act pursuant to Rule 12g3-2(b) thereunder, TIW agrees to furnish
holders and prospective purchasers of TIW Shares with the information
required by Rule 144A(d)(4) under the United States Securities Act of
1933 (the "1933 ACT").
8.4 TIW SHARES.
8.4.1 TIW hereby covenants and agrees that it will use its best
efforts to obtain the acceptance for listing of the TIW Shares
on the TSX as soon as possible.
8.4.2 The Sellers hereby covenant and agree that:
(a) if required by any applicable securities laws or
regulations, they will assist TIW and ClearWave, as
the case may be, in filing such reports, undertakings
and other documents with respect to the purchase of
the TIW Czech Shares and the issue of the TIW Shares
as may be required of TIW and 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
associates with such filings.
(b) they will not resell the TIW Shares in Canada or in
the United States except in accordance with
Securities Laws.
8.5 CHANGE OF CONTROL. TIW covenants and agrees that if, between the date
hereof and Completion, TIW or its shareholders enter into an agreement
or series of related agreements, whether by way of a take-over bid, a
merger or otherwise, the result of which would be that any "person" or
"group" (as that term is used in Section 13(d)(3) of the 0000 Xxx)
other than the Major Shareholders when taken as a group, becomes the
"beneficial owner" (as defined in Rule 13d-3 under the 1934 Act),
directly or indirectly, of more than 50% of the common shares of TIW or
otherwise acquires Control of TIW, TIW will ensure that the Sellers
participates in such transaction on the same proportionate terms and
conditions as if they had completed the TIW Czech Share Transfer.
8.6 LOCK-UP. The Sellers covenant and agree to not, directly or indirectly,
(1) offer for sale, sell, pledge, or otherwise dispose of (or enter
into any transaction or device that is designed to, or could be
expected to, result in the disposition by any person at any
13
time in the future of) any common shares of TIW (including, without
limitation, common shares of TIW that may be deemed to be beneficially
owned by the Sellers in accordance with the rules and regulations of
the United States Securities and Exchange Commission and common shares
of TIW that may be issued upon exercise of any option or warrant) or
securities convertible into or exchangeable for common shares of TIW
owned by the Sellers on the consummation of the TIW Czech Share
Transfer, or (2) 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 such common shares of TIW, whether
any such transaction described in clause (1) or (2) above is to be
settled by delivery of common shares of TIW or other securities, in
cash or otherwise, for a period of six (6) months from the Completion
Date, without the prior written consent of TIW, unless it does so in
accordance with applicable Securities Laws and (i) pursuant to their
tag-along right under section 6.1 of the Investor Rights Agreement,
substantially in the form attached as Schedule 7 of the Share Transfer
Agreement; (ii) pursuant to their piggyback registration rights under
section 3 of the Registration Rights Agreement, substantially in the
form attached as Schedule 8 of the Share Transfer Agreement; or (iii)
if TIW acquires Shares from an Exchanging Shareholder for total or
partial cash consideration (except under an Offering), provided that
EEIF will only be released from this lock-up provision with respect to
the percentage of common shares of TIW that EEIF holds that is equal to
the percentage of Shares of the Exchanging Shareholder that is
purchased for cash by TIW.
9. LIMITATIONS ON LIABILITY
9.1 The parties shall not be liable to any other party hereto in respect of
a claim for breach of the Warranties or any other provision of this
Agreement (a "RELEVANT CLAIM") unless and until (i) such Relevant Claim
is capable of being quantified or is ascertained or ascertainable at
the time of the Relevant Claim; (ii) the amount that would otherwise be
recoverable from the Purchasers or the Sellers, as the case may be (but
for this Clause 9.1) in respect of that claim, when aggregated with any
other amount or amounts recoverable in respect of other claims of such
party under this Agreement or the Share Transfer Agreement, exceeds USD
1,000,000 and (iii) the amount of each such claim exceeds USD 100,000;
provided that the Purchasers' joint total liability, and the Sellers'
joint total liability shall, respectively, be limited to USD
42,500,000, in respect of all claims under this Agreement and the Share
Transfer Agreement.
9.2 No party shall be liable in respect of a Relevant Claim unless the
party intending to bring a claim has given the party in breach written
notice of that Relevant Claim as soon as is reasonably practicable
after becoming aware of such claim, stating in reasonable detail the
nature of the claim and, if practicable, the amount claimed:
9.2.1 in respect of a claim for breach of Warranty by TIW relating
to Taxes on or before the later of the expiry of the
applicable limitation or prescription period provided under
applicable Law;
9.2.2 in respect of another claim, on or before the later of April
30, 2005 or 60 days after TIW's audited accounts for the year
ended 31 December 2004 have been released.
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9.3 Neither party shall be liable to the other party in respect of any
Relevant Claim (if not previously satisfied, settled or withdrawn)
unless the other party has referred such claim to arbitration in
accordance with Clause 12.2, within twelve months of the service of
notice of that Relevant Claim under Clause 10.2.
9.4 The Purchasers shall not be liable in respect of a Relevant Claim if
and to the extent that the Accounts or the Management Accounts make an
adequate allowance, provision or reserve in respect of the matter
giving rise to the Relevant Claim or was referred to in the notes to
the Accounts or the controller's report on the Management Accounts, a
true and complete copy of which have been delivered to the Sellers and
have been initialled for the purposes of identification.
9.5 No party shall be liable to the extent that the matter giving rise to
the claim arises as a consequence of any breach by the party seeking to
enforce the claim of its obligations under this Agreement.
9.6 The parties agree that, in respect of any matter which may give rise to
a liability under this Agreement including a claim under this Agreement
no such liability shall be met more than once.
9.7 Save for the notice requirement under Clause 9.2, this Clause 9 does
not apply in respect of a claim involving or relating to breach of an
Indemnity Warranty.
10. NOTICES
10.1 Any notice, communication or other document required to be given or
served under this Agreement ("NOTICE") shall be in writing in English
duly signed by or on behalf of the party giving it and may be delivered
to any party by sending it by commercial courier or by facsimile to
such party (with a copy by e-mail at the sole discretion of the party
giving the Notice and provided that a failure to send a copy by e-mail
shall not otherwise invalidate such Notice) at its address set forth
below (or at its new address, as notified to each of the other parties
in writing in accordance with this Clause):
10.1.1 in the case of EEIF Czech, to:
x/x Xxxxx Xxxxx Xxxxxxx
Xx Xxxxxxxxxx 00
Curacao, the Netherlands Antilles
Tel: x000 0000 0000
Fax: x000 0000 0000
Attn: Xxxxxx Xxxxx
With a copy to:
Emerging Markets Partnership (Europe) Limited
000, Xxxxxxxx Xxxx
Xxxxxx XX0 0XX
Xxxxxx Xxxxxxx
15
Tel: x00 00 0000 0000
Fax: x00 00 0000 0000
Attn: Xxxxx Xxxxxx
10.1.2 in the case of EEIF C.V., to:
c/o American International Company Limited
P.O. Box HM 152, Xxxxxxxx XX HX
00 Xxxxxxxx Xxxx,
Xxxxxxxx XX 00, XXXXXXX
Phone: x000 000-0000
Fax: x000 000-0000
Attn: L. Xxxxxxx Xxxxxx or Xxxxxxx Xxxxx
With a copy to:
Emerging Markets Partnership (Europe) Limited
000, Xxxxxxxx Xxxx
Xxxxxx XX0 0XX
Xxxxxx Xxxxxxx
Tel: x00 00 0000 0000
Fax: x00 00 0000 0000
Attn: Xxxxx Xxxxxx
10.1.3 in the case of TIW, to:
Telesystem International Wireless Inc.
0000 Xxxx Xxxxxxxx Xxxxxx West, 38th Floor
Xxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
Tel: x0 000 000 0000
Fax: x0 000 000 0000
Attn: General Counsel
10.1.4 9.1.3 In the case of ClearWave, to:
c/o Telesystem International Wireless Inc.
0000 Xxxx Xxxxxxxx Xxxxxx West, 38th Floor
Xxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
Tel: x0 000 000 0000
Fax: x0 000 000 0000
Attn: General Counsel
10.2 Any Notice given by commercial courier shall be deemed to have been
delivered on the second Business Day following the date it is
dispatched and any Notice given by facsimile shall be deemed to have
been delivered on the date that the facsimile is dispatched and
confirmation of receipt (electronic or otherwise) is received and
16
provided that if deemed receipt occurs before 9.00 a.m. on a Business
Day the notice shall be deemed to have been received at 9.00 a.m. on
that day, and if deemed receipt occurs after 5.00 p.m. on a Business
Day, or on a day which is not a Business Day, the notice shall be
deemed to have been received at 9.00 a.m. on the next Business Day.
10.3 Any Notice given by either Seller to either Purchaser will be deemed to
be given to both Purchasers and any Notice given to either Seller by
either Purchaser will be deemed to be given by both Purchasers.
11. GENERAL PROVISIONS
11.1 Successors and Assigns
No party shall be entitled to assign any of its rights and obligations
under this Agreement without the prior written consent of each of the
other parties, provided, however, that either party may assign any of
its rights and obligations under this Agreement to one or more of its
Affiliates. This Agreement shall be binding upon the parties and their
respective successors and permitted assigns.
11.2 Entire Agreement
11.2.1 This Agreement and the documents which are required by its
terms to be entered into by the parties or any of them or
which are referred to in this Agreement (together the "SHARE
SALE AND PURCHASE DOCUMENTS") constitute the entire agreement
and understanding of the parties in connection with the
exchange of the shares and other matters described in them and
supersede any previous agreement between the parties relating
to the subject matter of this Agreement.
11.2.2 Each party acknowledges and agrees that it has not entered
into the Share Sale and Purchase 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 Sale and Purchase Documents (a "PRE-CONTRACTUAL
STATEMENT"), which is not expressly set out in the Share Sale
and Purchase Documents (or any of them). Each party
irrevocably and unconditionally waives any claims, rights or
remedies which it may otherwise have in relation to a
Pre-Contractual Statement;
provided always that this Clause 11.2 shall not exclude or
limit any liability or any right which any party may have in
respect of a Pre-Contractual Statement made or given
fraudulently or dishonestly in circumstances where there has
been wilful concealment.
11.3 Amendments
Any amendment of or to any provision of this Agreement shall be
effective only if it is made or given in writing and signed by all the
parties hereto.
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11.4 Waiver
No delay or failure by any party to this Agreement to exercise any of
its powers, rights or remedies under this Agreement shall operate as a
waiver of them, nor shall any single or partial exercise of any such
powers, rights or remedies preclude any other or further exercise of
them. The remedies provided in this Agreement are cumulative and not
exclusive of any remedies provided by law. No waiver by a party of any
breach by the other party of any provision of this Agreement shall be
deemed to be a waiver of any subsequent breach of that or any other
provision of this Agreement.
11.5 Time of essence
Time is of the essence of this Agreement in respect of any date or
period mentioned in this Agreement and any date or period substituted
by written agreement between the parties or otherwise.
11.6 Partnership
Nothing in this Agreement shall be deemed to constitute a partnership
between the parties (or any of them) nor constitute any party the agent
of any other party (unless otherwise expressly provided) or otherwise
entitle any party to have authority to bind any other party for any
purpose.
11.7 Disclosure
The parties acknowledge that a letter agreement was signed on 4
November 2003, pertaining to the treatment of confidential information,
which forms an integral part hereof (the "NON-DISCLOSURE AGREEMENT").
The parties further acknowledge that (i) the terms and conditions of
this Agreement are strictly confidential and agree to hold such terms
and conditions in strict confidence and not to disclose them to any
person, except as may be otherwise permitted by this Agreement or
required by law (including without limitation any order of a court of
competent jurisdiction) or by the rules of any recognized stock
exchange, or governmental or other regulatory body, other than their
respective shareholders, employees and representatives, it being
understood that the disclosing party shall have the obligation to
inform any person to whom the terms and conditions of this Agreement
are disclosed of the confidential nature thereof; and (ii) neither
party shall make any announcement with regard to the this Agreement and
the transactions contemplated hereby without obtaining the prior
written consent of the other party hereto.
11.8 Further Assurances
Each party hereto shall do and perform or cause to be done and
performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments and
documents as any other party hereto may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement.
11.9 Invalidity of Provision
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The invalidity or unenforceability of any provision of this Agreement
in any jurisdiction shall not affect the validity or enforceability of
the remainder of this Agreement in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any
other jurisdiction.
11.10 Counterparts
This Agreement may be executed in any number of counterparts or
facsimile duplicates each of which shall be an original but such
counterparts or facsimile duplicates shall together constitute one and
the same agreement.
11.11 Costs
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 execution of this Agreement and the
finalization of the transactions contemplated hereby provided however
that TIW shall be responsible for (i) all expenses relating to the
fulfilment of the conditions provided in Schedule 1, Part A, paragraphs
2 and 3.
12. GOVERNING LAW AND DISPUTE RESOLUTION
12.1 English Law
This Agreement shall be governed by, and construed in all respects in
accordance with, the laws of England.
12.2 Arbitration
Any dispute arising out of or in connection with this Agreement,
including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by arbitration
under the LCIA Rules, which rules are deemed to be incorporated by
reference into this Clause.
12.2.1 The number of arbitrators shall be 3 (three).
12.2.2 The seat, or legal place, of arbitration shall be London.
12.2.3 The language to be used in the arbitral proceedings shall be
English.
12.2.4 Notwithstanding the above, any of the interim or conservatory
measures of the parties arising out of or relating to this
Agreement may, at the option of any of the parties, be
enforced by the parties in the courts of England or in any
other courts having jurisdiction. The Purchasers hereby
irrevocably designate, appoint and empower Law Debenture
Corporate Services Limited at its registered office (being, on
the date hereof, at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxx XX0X
0XX, Xxxxxxx), to act as their authorised agent to receive
service of process and any other legal summons in England. The
Sellers hereby irrevocably designate, appoint and empower
Emerging Markets Partnership (Europe) Limited at its place of
business (being, on the date hereof, at 000 Xxxxxxxx Xxxx,
Xxxxxx XX0 0XX) to act as their authorised agent to receive
service of process and any other legal summons in England.
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Each of the parties covenants and agrees that, so long as it
has any obligation under this Agreement, it shall maintain a
duly appointed agent to receive service of process and any
other legal summons in any legal action or proceeding brought
by the other parties in England in respect of this Agreement
and shall keep the parties advised of the identity and
location of such agent.
12.2.5 Each of the parties represents and warrants to the other
parties that this Agreement and their obligations hereunder
are commercial obligations, and confirm that they are not
entitled to claim immunity from legal proceedings in an action
brought for the enforcement of this Agreement.
13. EXCLUSION OF CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
No person who is not a party to this Agreement shall have any right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Agreement.
IN WITNESS WHEREOF, the parties hereto, being duly authorised, intending to be
legally bound, have caused this Agreement to be duly executed and delivered as a
deed on the date first above written.
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SCHEDULE 1
CONDITIONS PRECEDENT
PART A
CONDITIONS IN FAVOUR OF THE SELLERS FOR THE TRANSFER OF THE TIW CZECH SHARES:
1. There is no order of any court of competent jurisdiction or
any ruling of any Governmental Authority or any condition
imposed under any Law which, would prevent the transfer of the
TIW Czech Shares or material compliance by the parties of
their obligations under this Agreement.
2. The TIW Czech Transfer Notice shall have been duly given in
accordance with the provisions of the Shareholders Agreement
and either (i) completion of the right of first refusal
procedure contained in the Shareholders Agreement (the "ROFR
PROCEDURE") shall have occurred or (ii) all Shareholders shall
have unconditionally and irrevocably waived, in a manner
satisfactory to the Sellers, all of their rights pursuant to
the ROFR Procedure in relation to the transfers of the TIW
Czech Shares contemplated by this Agreement.
3. TIW has obtained conditional listing approval and acceptance
of the private placement notice from the Toronto Stock
Exchange (the "TSX") and similar approvals from Nasdaq, as may
be required, for the issuance of the TIW Shares under the
Transaction.
4. The Commission des valeurs mobilieres du Quebec ("CVMQ") has
not objected to the information filed by TIW under Section 12
of the Securities Act (Quebec) (the "QUEBEC ACT") and section
115 of the regulation respecting securities (Quebec) (the
"QUEBEC REGULATION") in connection with the issuance of the
TIW Shares or, if the CVMQ has objected to the information
filed by TIW and required the filing of a prospectus to
qualify the issuance of such TIW Shares, then TIW shall have
filed such prospectus with the CVMQ on or before the
Completion Date.
5. The MobiFon Share Transfer shall have been completed.
21
PART B
CONDITIONS IN FAVOUR OF CLEARWAVE FOR THE PURCHASE OF THE TIW CZECH SHARES:
1. There is no order of any court of competent jurisdiction or
any ruling of any Governmental Authority or any condition
imposed under any Law which would prevent the purchase of the
TIW Czech Shares or material compliance by the parties of
their respective obligations under this Agreement.
2. The TIW Czech Transfer Notice shall have been duly given in
accordance with the provisions of the Shareholders Agreement
and either (i) completion of the ROFR Procedure shall have
occurred or (ii) all Shareholders shall have unconditionally
and irrevocably waived, in a manner satisfactory to ClearWave,
all of their rights pursuant to the ROFR Procedure in relation
to the transfers of the TIW Czech Shares contemplated by this
Agreement.
3. TIW has obtained conditional listing approval and acceptance
of the private placement notice from the TSX and similar
approvals from Nasdaq, as may be required, for the issuance of
the TIW Shares under the Transaction.
4. The CVMQ has not objected to the information filed by TIW
under Section 12 of the Quebec Act and section 115 of the
Quebec Regulation in connection with the issuance of the TIW
Shares or, if the CVMQ has objected to the information filed
by TIW and required the filing of a prospectus to qualify the
issuance of such TIW Shares, then TIW shall have filed such
prospectus with the CVMQ on or before the Completion Date.
5. The MobiFon Share Transfer shall have been completed.
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PART C
CONDITIONS IN FAVOUR OF THE SELLERS FOR THE PURCHASE OF THE TIW SHARES:
1. There is no order of any court of competent jurisdiction or
any ruling of any Governmental Authority or any condition
imposed under any Law which would prevent the issue of the TIW
Shares, or material compliance by the parties of their
obligations under this Agreement.
2. TIW has obtained conditional listing approval and acceptance
of the private placement notice from the TSX and similar
approvals from Nasdaq, as may be required, for the issuance of
the TIW Shares under the Transaction.
3. The CVMQ has not objected to the information filed by TIW
under Section 12 of the Quebec Act and section 115 of the
Quebec Regulation in connection with the issuance of the TIW
Shares or, if the CVMQ has objected to the information filed
by TIW and required the filing of a prospectus to qualify the
issuance of such TIW Shares, then TIW shall have filed such
prospectus with the CVMQ on or before the Completion Date.
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PART D
CONDITIONS IN FAVOUR OF TIW FOR THE ISSUANCE AND SALE OF THE TIW SHARES:
1. There is no order of any court of competent jurisdiction or
any ruling of any Governmental Authority or any condition
imposed under any Law which would prevent the issue of the TIW
Shares, or material compliance by the parties of their
respective obligations under this Agreement.
2. TIW has obtained acceptance of the private placement notice
from the TSX for the issuance of the TIW Shares under the
Transaction.
3. The CVMQ has not objected to the information filed by TIW
under Section 12 of the Quebec Act and section 115 of the
Quebec Regulation in connection with the issuance of the TIW
Shares or, if the CVMQ has objected to the information filed
by TIW and required the filing of a prospectus to qualify the
issuance of such TIW common shares, TIW will have filed such
prospectus with the CVMQ on or before the Completion Date.
24
SCHEDULE 2
DOCUMENTS TO BE EXECUTED AND/OR DELIVERED AT COMPLETION
PART A
DOCUMENTS TO BE EXECUTED AND/OR DELIVERED BY CLEARWAVE:
1. Deliver to the Sellers as evidence of the authority of each person
executing this Agreement and/or a document referred to in this schedule
on ClearWave's behalf:
1.1 a copy of or extract from the minutes of a duly held meeting
of the directors or governing body of ClearWave authorising
the execution of the Agreement and conferring the authority to
the signatory to sign on ClearWave's behalf, certified to be a
true copy by the secretary or managing director of ClearWave;
1.2 a power of attorney conferring the authority to sign the
Deed of transfer on ClearWave's behalf.
2. Deliver to the Sellers:
2.1 a certificate of an officer of ClearWave in the agreed form confirming
(i) the accuracy of the Warranties in Schedule 3 Part B as at
Completion and (ii) there has not occurred any Material Adverse Change
since the date of this Agreement; and
2.2 a legal opinion issued by Stibbe and addressed to the Sellers in
relation to ClearWave in the agreed form.
3. Execute and deliver a deed of transfer to be executed between ClearWave
and the Sellers before a public notary to effect the transfer of the
TIW Czech Shares as provided in this Agreement (the "Deed of
Transfer").
25
PART B
DOCUMENTS TO BE EXECUTED AND/OR DELIVERED BY THE SELLERS:
1. Deliver to the Purchasers as evidence of the authority of each person
executing this Agreement and/or a document referred to in this schedule
on the Sellers' behalf:
1.1 a copy of or extract from the minutes of a duly held meeting of the
directors or governing body of EEIF Czech authorising the execution of
this Agreement, certified to be a true copy by secretary or a director
of EEIF Czech;
1.2 a copy of or extract from the minutes of a duly held meeting of the
directors or governing body of EEIF CV authorising the execution of
this Agreement, certified to be a true copy by secretary or a director
of EEIF CV;
1.3 powers of attorney conferring the authority to sign the Agreement and
the Deed of transfer on EEIF Czech's behalf; and
1.4 powers of attorney conferring the authority to sign the Agreement and
the Deed of transfer on EEIF CV's behalf.
2. Deliver to the Purchasers:
2.1 a statement signed by an authorised representative of EEIF Czech
confirming that EEIF Czech has complied with all applicable ROFR
Procedures;
2.2 a statement signed by an authorised representative of EEIF CV
confirming that EEIF CV has complied with all applicable ROFR
Procedures;
2.3 a certificate of an officer of EEIF Czech in the agreed form confirming
(i) the accuracy of the Warranties in Schedule 4 as at Completion and
(ii) there has not occurred any Material Adverse Change since the date
of this Agreement;
2.4 a certificate of an officer of EEIF CV in the agreed form confirming
(i) the accuracy of the Warranties in Schedule 4 as at Completion and
(ii) there has not occurred any Material Adverse Change since the date
of this Agreement;
2.5 a legal opinion issued by Houthoff and addressed to the Purchasers in
relation to EEIF Czech in form and substance satisfactory to the
Purchasers acting reasonably;
2.6 a legal opinion issued by Houthoff and addressed to the Purchasers in
relation to EEIF CV in form and substance satisfactory to the
Purchasers acting reasonably;
2.7 A statement signed by an authorised representative of each of the
Sellers giving instructions to ClearWave to pay the TIW Czech Proceeds
to TIW, or as TIW may direct, as satisfaction of ClearWave's
obligations under Clause 2.2.
3. Execute and deliver the Deed of Transfer.
4. Endorse and deliver the share certificate representing the TIW Czech
Shares to ClearWave.
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PART C
DOCUMENTS TO BE EXECUTED AND/OR DELIVERED BY TIW:
1. Deliver to the Sellers as evidence of the authority of each person
executing this Agreement and/or a document referred to in this schedule
on TIW's behalf, a copy of or extract from the minutes of a duly held
meeting of the board of directors authorising the execution of the
Agreement and conferring the authority to the signatory to sign on
TIW's behalf, certified to be a true copy by the secretary of TIW.
2. Deliver to the Sellers:
2.1 a certificate of an officer of TIW in the agreed form confirming (i)
the accuracy of the Warranties in Schedule 3 Part A as at Completion
and (ii) there has not occurred any Material Adverse Change since the
date of this Agreement; and
2.2 legal opinions issued by Fasken Xxxxxxxxx XxXxxxxx and addressed to the
Sellers in relation to TIW in form and substance satisfactory to the
Sellers acting reasonably;.
3. Deliver the share certificate(s) in relation to the TIW Shares, which
certificates evidence the transfer restrictions provided for under
Clause 8.6.
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SCHEDULE 3
PART A
WARRANTIES OF TIW:
1. TIW has the corporate power and corporate authority to execute, deliver
and perform its obligations under this Agreement.
2. The execution, delivery and performance by TIW of this Agreement and
the transactions contemplated hereby:
2.1 have been or will be, on or prior to Completion, duly authorised by all
necessary corporate actions;
2.2 will not contravene the terms of its constitutional documents;
2.3 will not violate, conflict with or result in any breach or
contravention of, any contractual obligation, or any consents,
approvals, orders or authorisations referred to in paragraph 3 of this
Schedule 3;
2.4 will not cause TIW to breach or constitute a default under any
agreement, instrument or arrangement, whether binding or not, to which
it is a party, or any order, judgement or decree of any court or
Governmental Authority to which it is a party or otherwise bound;
2.5 will not result in the creation of any Encumbrance over any of the TIW
Shares, other than any Encumbrance created by the Sellers or their
Affiliates;
2.6 will not result in any indebtedness of TIW or any of its Subsidiaries
becoming due or capable of being declared due and payable prior to its
stated maturity; and
2.7 will not violate any Law binding upon it.
3. No approval, consent, licence, exemption, authorisation, order,
registration, qualification or other action by, or notice to, or filing
with, any Governmental Authority or any other person in respect of any
Law, and no lapse or waiting period under any Law, is necessary or
required in connection with the execution, delivery or performance
(including, without limitation, the transfer and delivery of the TIW
Shares) by, or enforcement against TIW of this Agreement or the
transactions contemplated hereby or any other related documents,,
except such consents, approvals, authorisations or filings that have
been obtained or made and except for those provided in Schedule 1 of
this Agreement.
4. TIW is a "foreign issuer" within the meaning of Regulation S of the
1933 Act and agrees to notify the Sellers as soon as practicable upon
it becoming a "domestic issuer", as those terms are defined in
Regulation S.
5. Subject to the truth and accuracy of the Purchasers' and the Sellers'
warranties set forth in Schedules 3 and 4 hereof, respectively, and
subject to the restrictions on transfer imposed by Clause 8.6, the TIW
Shares will be freely transferable on the TSX through an appropriately
registered dealer in Canada, provided that the Sellers comply
28
with the resale requirements set forth in section 2.6(3) of
Multilateral Instrument 45-102 - Resale of Securities.
6. Subject to the truth and accuracy of the Sellers' warranties set forth
in Schedule 4 hereof, the offer, sale and issuance by TIW of the TIW
Shares pursuant to this Agreement is exempt from the registration
requirements of the 1933 Act. None of TIW, its Subsidiaries or any
person acting on its or their behalf has offered or will offer to sell
any of the TIW Shares by means of any form of general solicitation or
general advertising (as those terms are used in Regulation D under the
0000 Xxx) or in any manner involving a public offering within the
meaning of Section 4(2) of the 1933 Act.
7. TIW does not have any obligation to pay any person any finder's or
other fee or commission (other than as provided in this Agreement) in
connection with this Agreement or the transactions to be executed
thereunder, other than fees and commission payable to Lazard Freres &
Co. LLC and Lazard & Co., Limited.
8. This Agreement constitutes the legal, valid and binding obligations of
TIW, enforceable against TIW in accordance with its terms (assuming due
execution and delivery by the Sellers) except as enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance or
transfer, moratorium or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
9. TIW is entitled to issue the TIW Shares and to transfer the full legal
and beneficial ownership of the TIW Shares under the terms of this
Agreement free from any Encumbrance, other than those created by the
Sellers and their Affiliates and those transfer restrictions created by
Clause 8.6, and when issued, the TIW Shares will be fully paid,
non-assessable common shares of TIW.
29
PART B
WARRANTIES OF CLEARWAVE
1. ClearWave is a limited company duly formed and validly existing under
the laws of the Netherlands.
2. ClearWave has the corporate power and corporate authority to execute,
deliver and perform its obligations under this Agreement.
3. The execution, delivery and performance by ClearWave of this Agreement
and the transactions contemplated hereby:
3.1 have been or will be, on or prior to Completion, duly authorised by all
necessary corporate actions;
3.2 will not contravene the terms of its constitutional documents;
3.3 will not violate, conflict with or result in any breach or
contravention of, any contractual obligation, or any consents,
approvals, orders or authorisations referred to in Part B of this
Schedule 3;
3.4 will not cause ClearWave to breach or constitute a default under any
agreement, instrument or arrangement, whether binding or not, to which
it is a party, or any order, judgement or decree of any court or
Governmental Authority to which it is a party or otherwise bound;
3.5 will not result in any indebtedness of ClearWave or any of its
Subsidiaries becoming due or capable of being declared due and payable
prior to its stated maturity; and
3.6 will not violate any Law binding upon it.
4. No approval, consent, licence, exemption, authorisation, order,
registration, qualification or other action by, or notice to, or filing
with, any Governmental Authority or any other person in respect of any
Law, and no lapse or waiting period under any Law, is necessary or
required in connection with the execution, delivery or performance by,
or enforcement against ClearWave of this Agreement or the transactions
contemplated hereby or any other related documents, except such
consents, approvals, authorisations or filings that have been obtained
or made, or are listed in Schedule 1 of this Agreement.
5. This Agreement constitutes the legal, valid and binding obligations of
ClearWave, enforceable against ClearWave in accordance with its terms
(assuming due execution and delivery by the Sellers) except as
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance or transfer, moratorium or similar laws affecting
the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
30
SCHEDULE 4
PART A
WARRANTIES OF EEIF CZECH
1. EEIF Czech is a corporation duly organized and validly existing under
the laws of the Netherlands Antilles.
2. EEIF Czech has the power and authority to execute, deliver and perform
its obligations under this Agreement.
3. As of 9 February 2004, EEIF Czech is the full legal owner of 366,867
convertible Class B preference shares in the share capital of TIW Czech
and as of the date of this Agreement EEIF Czech is entitled to sell and
transfer up to 76,117 shares of the TIW Czech Shares and the full legal
and beneficial ownership of the such shares on the terms of this
Agreement free from any Encumbrance, other than those created under or
pursuant to the Shareholders Agreement and the Exit Agreement, and no
consent of any third party is required in relation to the transfer.
4. The execution, delivery and performance by EEIF Czech of this Agreement
and the transactions contemplated hereby:
4.1 have been or will be, on or prior to Completion, duly authorised by all
necessary corporate action;
4.2 will not contravene the terms of its constitutional documents;
4.3 will not cause EEIF Czech to breach or constitute a default under any
agreement, instrument or arrangement, whether binding or not, to which
it is a party, or any order, judgement or decree of any court or
governmental agency to which it is a party to by which it is bound; and
4.4 will not violate any Law binding upon it.
5. No approval, consent, licence, exemption, authorisation, order,
registration, qualification or other action by, or notice to, or filing
with, any Governmental Authority or any other person in respect of any
Law, and no lapse or waiting period under any Law, is necessary or
required in connection with the execution, delivery or performance by,
or enforcement against EEIF Czech of this Agreement or the transactions
(including, without limitation, the transfer and delivery of the TIW
Czech Shares) contemplated hereby and thereby or any other related
documents, except such consents, approvals, authorisations or filings
that have been obtained or made, or are listed in Schedule 1 of this
Agreement.
6. This Agreement constitutes the legal, valid and binding obligations of
EEIF Czech, enforceable against EEIF Czech in accordance with its terms
(assuming due execution and delivery by the Purchasers) except as
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance or transfer, moratorium or similar laws affecting
the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
31
PART B
Warranties of EEIF CV
1. EEIF CV is a limited partnership (commanditaire vennootschap) duly
organized and validly existing under the laws of the Netherlands.
2. EEIF CV has the power and authority to execute, deliver and perform its
obligations under this Agreement.
3. As of 9 February 2004 EEIF CV is the full legal owner of 109,238
convertible Class B preference shares in the share capital of TIW Czech
and as of the date of this Agreement EEIF CV is entitled to sell and
transfer up to 22,383 shares of the TIW Czech Shares and the full legal
and beneficial ownership of the such shares on the terms of this
Agreement free from any Encumbrance, other than those created under or
pursuant to the Shareholders Agreement and the Exit Agreement, and no
consent of any third party is required in relation to the transfer.
4. The execution, delivery and performance by EEIF CV of this Agreement
and the transactions contemplated hereby:
4.1 have been or will be, on or prior to Completion, duly authorised by all
necessary corporate action;
4.2 will not contravene the terms of its constitutional documents;
4.3 will not cause EEIF CV to breach or constitute a default under any
agreement, instrument or arrangement, whether binding or not, to which
it is a party, or any order, judgement or decree of any court or
governmental agency to which it is a party to by which it is bound; and
4.4 will not violate any Law binding upon it.
5. No approval, consent, licence, exemption, authorisation, order,
registration, qualification or other action by, or notice to, or filing
with, any Governmental Authority or any other person in respect of any
Law, and no lapse or waiting period under any Law, is necessary or
required in connection with the execution, delivery or performance by,
or enforcement against EEIF CV of this Agreement or the transactions
(including, without limitation, the transfer and delivery of the TIW
Czech Shares) contemplated hereby and thereby or any other related
documents, and the ownership of its properties and assets, except such
consents, approvals, authorisations or filings that have been obtained
or made, or are listed in Schedule 1 of this Agreement.
6. This Agreement constitutes the legal, valid and binding obligations of
EEIF CV, enforceable against EEIF CV in accordance with its terms
(assuming due execution and delivery by the Purchasers) except as
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance or transfer, moratorium or similar laws affecting
the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
32
EXECUTED and DELIVERED )
as a DEED for and on behalf of )
EEIF CZECH N.V. )
EXECUTED and DELIVERED )
as a DEED for and on behalf of )
EMERGING EUROPE )
INFRASTRUCTURE FUND C.V. )
EXECUTED and DELIVERED )
as a DEED for and on behalf of )
CLEARWAVE N.V. )
EXECUTED and DELIVERED )
as a DEED for and on behalf of )
TELESYSTEM INTERNATIONAL )
WIRELESS INC. )
