Exhibit 13
JPMP TIW EH, LP
as JPMP
and
CAPITAL COMMUNICATIONS CDPQ INC.
as CDPQ
and
U.F. INVESTMENTS (BARBADOS) LTD.
as UFI
and
TELESYSTEM INTERNATIONAL WIRELESS INC.
as TIW
SHARE EXCHANGE AGREEMENT
March 13, 2002
SHARE EXCHANGE AGREEMENT dated March 13, 2002 by and among JPMP TIW EH,
LP, a limited partnership formed pursuant to the laws of Ontario ("JPMP LP"),
CAPITAL COMMUNICATIONS CDPQ INC., a corporation organized pursuant to the laws
of Canada ("CDPQ"), TELESYSTEM INTERNATIONAL WIRELESS INC., a corporation
organized pursuant to the laws of Canada ("TIW"), and U.F. INVESTMENTS
(BARBADOS) LTD., a corporation organized pursuant to the laws of Barbados
("UFI") (individually a "PARTY" and collectively, the "Parties").
RECITALS:
1. Pursuant to that certain Master and Purchase Agreement dated as of
November 28, 2001, as amended by that certain First Amending Agreement
dated as of January 18, 2002, that certain Second Amending Agreement
dated as of January 24, 2002, that certain Third Amending Agreement
dated as of February 5, 2002 and that certain Fourth Amending Agreement
dated as of March 4, 2002 (together, the "MAPA"), the parties thereto
agreed to a series of transactions which implemented a recapitalization
of the equity and debt securities of TIW. The transactions effected
pursuant to the MAPA included the issuance and sale by TIW of Special
Warrants and the grant of Purchase Warrants.
2. As of February 28, 2002 (i) XX Xxxxxx held, indirectly via JPMP LP (its
Affiliate), an aggregate of 39,539,055 Special Warrants (the "JPMP LP
SWS") and (ii) CDPQ held an aggregate of 35,780,973 Special Warrants
(the "CDPQ SWs").
3. Pursuant to the MAPA, the Special Warrants were exercisable by the
holders thereof for Underlying Securities from and after the Qualifying
Date and on or prior to the Expiry Time.
4. Pursuant to Section 5.3 of the MAPA, any exercise of Special Warrants
and Purchase Warrants is subject to an override adjustment upon a
Potential Group Determination such that, among other things, holders of
Special Warrants and Purchase Warrants may be required to receive, upon
exercise thereof, Non-Voting Preferred Shares instead of Subordinate
Voting Shares.
5. On February 28, 2002 (the Qualifying Date), each of JPMP LP and CDPQ
attended a closing organized by TIW with the intention of exercising
the whole of the JPMP LP SWs and the CDPQ SWs, respectively, in
accordance with their terms. On such date, due to the likely existence
of a Potential Group Determination, JPMP LP and CDPQ agreed not to
exercise the JPMP LP SWs and the CDPQ SWs, respectively, in their
entirety. Accordingly, as agreed among TIW and the Non-Exempt
Purchasers, on such date (i) JPMP LP exercised 22,039,055 of the JPMP
LP SWs and received from TIW upon such exercise 22,039,055 Subordinate
Voting Shares and, as to the remaining JPMP LP SWs
-2-
which JPMP LP agreed not to exercise, received the 17.5 Million JPMP LP
SWs, for which a new special warrant certificate was issued, and (ii)
18,280,973 CDPQ SWs were cancelled and the remaining 17.5 Million CDPQ
SWs were not exercised. JPMP LP and CDPQ further agreed with the
Non-Exempt Purchasers that following (A) the determination by TIW and
its Board of Directors as to (i) the existence of a Potential Group
Determination, (ii) the number of Non-Voting Preferred Shares required
to be issued to Non-Exempt Purchasers as Underlying Securities, and
(iii) the number of Special Warrants or Purchase Warrants owned by
Non-Exempt Purchasers to be deemed exercisable for Non-Voting Preferred
Shares, required in each case for purposes of avoiding the Potential
Group Determination pursuant to Section 5.3 of the MAPA, and (B)
agreement among the Non-Exempt Purchasers as to the appropriate
allocation thereof, (y) each of the 17.5 Million JPMP LP SWs and the
17.5 Million CDPQ SWs would be exercised in a manner consistent with
(A) and (B), and (z) the JPMP LP PWs and the UFI PWs would be deemed
exercisable in a manner consistent with (A) and (B).
6. Pursuant to Section 5.3 of the MAPA, on March 5, 2002, TIW and its
Board of Directors determined the existence of a Potential Group
Determination and that the number of Non-Voting Preferred Shares in (A)
above is 54,817,446. Further to such determination, TIW and the
Non-Exempt Purchasers have agreed that in order to prevent the
occurrence of a Potential Group Determination, (i) the outstanding
Purchase Warrants held by UFI representing the right to subscribe for
15,000,000 Underlying Securities shall be exercisable only for
15,000,000 Non-Voting Preferred Shares, (ii) the outstanding Purchase
Warrants held by JPMP LP representing the right to subscribe for
4,817,446 Underlying Securities shall be exercisable only for 4,817,446
Non-Voting Preferred Shares, (iii) the outstanding 17.5 Million JPMP LP
SWs shall be exercisable only for 17,500,000 Non-Voting Preferred
Shares and (iv) the outstanding 17.5 Million CDPQ SWs shall be
exercisable only for 17,500,000 Non-Voting Preferred Shares, in each of
(i) through (iv) above unless and until TIW and its Board of Directors,
acting in a manner consistent with the MAPA, determines on or prior to
the exercise of such Purchase Warrants or Special Warrants, as the case
may be, that the exercise of all or a portion of such Purchase Warrants
or Special Warrants, as the case may be, for Subordinate Voting Shares
(or common shares, as the case may be) would not result in the
occurrence of a Potential Group Determination.
7. JPMP LP and CDPQ have agreed that upon the exercise of the 17.5 Million
CDPQ SWs for Non-Voting Preferred Shares, JPMP LP shall exchange
17,500,000 of its Subordinate Voting Shares for the 17,500,000
Non-Voting Preferred Shares issued to CDPQ upon its exercise of the
17.5 Million CDPQ SWs.
8. The Parties have agreed to effect the transactions contemplated by this
Agreement in order to effectuate the determinations of TIW and its
Board of
-3-
Directors, and the agreement of the Non-Exempt Purchasers, and to
address certain other ancillary matters.
NOW, THEREFORE, in consideration of the premises and the mutual representations,
warranties, covenants and agreements contained in this Agreement and other
valuable consideration (the receipt and adequacy of all such consideration is
hereby acknowledged by each of the Parties), the Parties hereby agree as
follows:
ARTICLE 1
INTERPRETATION
1.1 MAPA
(a) Except as expressly supplemented and modified in
this Agreement (including the Preamble hereof and the Recitals hereto),
all of the provisions, terms and conditions contained in the MAPA shall
remain in full force and effect, unamended.
(b) Unless otherwise defined or unless there is
something in the subject matter or the context inconsistent therewith,
all capitalized terms and expressions not otherwise defined in this
Agreement (including the Preamble hereof) have the meanings ascribed to
them in the MAPA.
1.2 Defined Terms
As used in this Agreement, including the Preamble hereof and the
Recitals hereto, the following terms have the following meanings:
"AGREEMENT" means this Share Exchange Agreement; "HEREOF", "HERETO" and
"HEREUNDER" and similar expressions mean and refer to this Agreement
and not to any particular Article, Section, Subsection or other
subdivision; "ARTICLE", "SECTION", "SUBSECTION" or other subdivision of
this Agreement followed by a number means and refers to the specified
Article, Section, Subsection or other subdivision of this Agreement.
"CLOSING" means the closing of the transactions contemplated by this
Agreement to occur on the Exchange Closing Date at the offices of
Fasken Xxxxxxxxx DuMoulin in Montreal.
"EXCHANGE CLOSING DATE" means March 13, 2002.
"JPMP LP PWs" means the 4,817,446 Purchase Warrants issued by TIW to
JPMP LP on the Purchase Warrant Issue Date.
-4-
"17.5 MILLION CDPQ SWs" means the Special Warrants exercisable for no
additional consideration for 17,500,000 Underlying Securities.
"17.5 MILLION JPMP LP SWs" means the Special Warrants exercisable for
no additional consideration for 17,500,000 Underlying Securities.
"TRUSTEE" means Computershare Trust Company of Canada.
"UFI PWs" means the 15,000,000 Purchase Warrants issued by TIW to UFI
on the Purchase Warrant Issue Date.
1.3 Gender and Number
Any reference in this Agreement to gender includes both genders and
words importing the singular number only shall include the plural and
vice versa.
1.4 Headings, etc.
The division of this Agreement into Articles and Sections and the
insertion of headings are for convenient reference only and are not to
affect its interpretation.
1.5 Severability
If any provision of this Agreement shall be determined by an arbitrator
or any court of competent jurisdiction to be illegal, invalid or
unenforceable, that provision shall be severed from this Agreement and
the remaining provisions shall continue in full force and effect.
1.6 Inclusion
Where the word "including" or "includes" is used in this Agreement it
means "including (or includes) without limitation".
1.7 Time of the Essence
Time shall be of the essence of this Agreement.
-5-
ARTICLE 2
SHARE EXCHANGE TRANSACTIONS
2.1 Share Exchange and Related Transactions
Upon the terms and subject to the conditions of this Agreement, the
Parties agree that the following transactions will occur at the Closing
on the Exchange Closing Date in the following sequence:
(a) EXERCISE XX 00.0 XXXXXXX XXXX XXx: CDPQ shall tender to TIW
the 17.5 Million CDPQ SWs and TIW shall thereupon issue or
cause to be issued to, and in the name of, CDPQ a share
certificate representing 17,500,000 Non-Voting Preferred
Shares (the "CDPQ NON-VOTING SHARES"), all in accordance with
the terms of the MAPA;
(b) SHARE EXCHANGE: Immediately following completion of the
transactions contemplated in Section 2.1(a) above, CDPQ shall
sell, assign, transfer, convey and deliver to JPMP LP the CDPQ
Non-Voting Shares. In consideration thereof and in exchange
therefor, JPMP LP shall, contemporaneously therewith, sell,
assign, transfer, convey and deliver to CDPQ 17,500,000
Subordinate Voting Shares (the "JPMP LP EXCHANGE SVS").
(c) EXERCISE OF 17.5 MILLION JPMP LP SWs: Immediately following
completion of the transactions contemplated in Section 2.1(b)
above, JPMP LP shall tender to TIW the 17.5 Million JPMP LP
SWs and TIW shall thereupon issue or cause to be issued to,
and in the name of, JPMP LP a share certificate, representing
17,500,000 Non-Voting Preferred Shares (the "JPMP LP
NON-VOTING SHARES").
(d) ISSUANCE OF SHARE CERTIFICATES TO JPMP LP AND CDPQ:
Immediately following completion of the transactions
contemplated by Section 2.1(b) above, (i) CDPQ shall tender to
the Trustee the certificate representing the JPMP LP Exchange
SVS sold, assigned, transferred, conveyed and delivered by
JPMP LP to CDPQ pursuant to Section 2.1(b) above and TIW shall
cause the Trustee thereupon to issue or cause to be issued to,
and in the name of, CDPQ a certificate representing 17,500,000
Subordinate Voting Shares and (ii) JPMP LP shall tender to TIW
the certificate representing the CDPQ Non-Voting Shares sold,
assigned, transferred, conveyed and delivered by CDPQ to JPMP
LP pursuant to Section 2.1(b) above, and TIW shall thereupon
issue or cause to be issued to, and in the name of, JPMP LP a
share certificate representing 17,500,000 Non-Voting Shares.
-6-
2.2 Other Closing Deliveries of TIW
In addition to the documents and other items described in Section 2.1,
TIW shall deliver, or cause to be delivered, the following items (each
dated as of the Exchange Closing Date) in form and substance
satisfactory to each of JPMP LP and CDPQ, acting reasonably:
(a) a legal opinion of Fasken Xxxxxxxxx XxXxxxxx, counsel to TIW;
(b) a certificate of a senior officer of TIW in accordance with
Section 3.1(b); and
(c) a certificate of status, compliance, good standing or like
certificate with respect to TIW issued by appropriate federal
government officials in Canada.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of TIW
TIW represents and warrants as follows to each of the other Parties and
acknowledges and confirms that each of the other Parties is relying
upon such representations and warranties in connection with the
transactions contemplated by this Agreement:
(a) At all times while the Non-Voting Preferred Shares are
outstanding, TIW shall reserve and there shall be
conditionally allotted but unissued out of its authorized
capital that number of Subordinate Voting Shares (or common
shares, as the case may be) sufficient to enable TIW to meet
its obligations, hereunder and pursuant to the MAPA,
contingent or otherwise and including the obligation to issue
Subordinate Voting Shares (or common shares, as the case may
be) to any holder of Non-Voting Preferred Shares upon any
conversion of the Non-Voting Preferred Shares, which
conversion shall be effected in a manner consistent with the
constating documents of TIW;
(b) Notwithstanding any provision in the MAPA to the contrary, the
representations and warranties of TIW (including those made
herein), save and except for such representation and warranty
contained in Section 6.1(t) of the MAPA, which pertains solely
to NASDAQ (and reading such representations and warranties
without regard to any qualification of materiality or material
adverse effect contained therein) contained in the
-7-
MAPA, any Ancillary Agreement and this Agreement shall be true
and correct in all material respects as of the Exchange
Closing Date and each Purchase Warrant Closing Date, subject
to the provisions contained in Section 6.1 of the MAPA, with
the same force and effect as if such representations and
warranties had been made on and as of such date and TIW shall
have executed and delivered on each such date a certificate of
a senior officer to that effect.
3.2 Representations and Warranties of CDPQ
CDPQ represents and warrants as follows to JPMP LP and acknowledges and
confirms that JPMP LP is relying upon such representations and
warranties in connection with its entering into the transactions
contemplated hereby:
(a) upon the issuance by TIW to CDPQ of the CDPQ Non-Voting
Shares, the CDPQ Non-Voting Shares shall be owned by CDPQ as
the beneficial owner and owner of record, with a good and
marketable title thereto, free and clear of all mortgages,
liens, charges, security interests, adverse claims, pledges,
encumbrances and demands of any kind whatsoever,
(b) CDPQ has the full power and authority to enter into this
Agreement and to perform its obligations hereunder;
(c) CDPQ is not a non-resident of Canada within the meaning of the
Income Tax Act (Canada); and
(d) CDPQ is an "accredited investor" within the meaning of Section
1.1 of Ontario Securities Commission Rule 45-501-Exempt
Distributions.
3.3 Representations and Warranties of JPMP LP
JPMP LP represents and warrants as follows to CDPQ and acknowledges and
confirms that CDPQ is relying upon such representations and warranties
in connection with its entering into the transactions contemplated
hereby:
(a) the JPMP LP Exchange SVS are owned by JPMP LP as the
beneficial owner and owner of record, with a good and
marketable title thereto, free and clear of all mortgages,
liens, charges, security interests, adverse claims, pledges,
encumbrances and demands of any kind whatsoever;
(b) JPMP LP has the full power and authority to enter into this
Agreement and to perform its obligations hereunder; and
-8-
(c) JPMP LP is an "accredited investor" within the meaning of
Section 1.1 of Ontario Securities Commission Rule
45-501-Exempt Distributions.
ARTICLE 4
ACKNOWLEDGMENT OF JPMP LP AND UFI
4.1 Acknowledgment of JPMP LP Re: JPMP LP PWs
JPMP LP acknowledges and confirms to the other Parties that the JPMP LP
PWs shall be deemed exercisable for Non-Voting Preferred Shares unless
and until TIW and its Board of Directors, acting in a manner consistent
with the MAPA, determines on or prior to the exercise by JPMP LP of the
JPMP LP PWs that the exercise of all or a portion of the JPMP LP PWs
for Subordinate Voting Shares (or common shares as the case may be)
would not result in the occurrence of a Potential Group Determination.
4.2 Acknowledgment of UFI Re: UFI PWs
UFI acknowledges and confirms to the other Parties that the UFI PWs
shall be deemed exercisable for Non-Voting Preferred Shares unless and
until TIW and its Board of Directors, acting in a manner consistent
with the MAPA, determines on or prior to the exercise by UFI of the UFI
PWs that the exercise of all or a portion of the UFI PWs for
Subordinate Voting Shares (or common shares as the case may be) would
not result in the occurrence of a Potential Group Determination.
ARTICLE 5
MISCELLANEOUS
5.1 Further Assurances
Prior to, at and from time to time following the Closing, each of the
Parties shall execute and deliver such documents, instruments and other
assurances, and perform such further and other acts and things as may
be reasonably required to effectively carry out the intention of this
Agreement. Without limiting the generally of the foregoing, each Party
shall in a timely manner effect all filings, notices and other actions
required in connection with and in furtherance this Agreement and the
transactions contemplated hereby.
5.2 Survival
The representations, warranties and covenants of each of TIW, CDPQ and
JPMP LP, as applicable, contained in this Agreement will survive the
completion of the transactions contemplated hereby and, notwithstanding
any investigation made by or on behalf of any of the Parties, as
applicable, will survive the completion of
-9-
the transactions contemplated by this Agreement and will continue in
full force and effect, unamended, for the benefit of the other Parties,
as applicable.
5.3 Governing Law
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE PROVINCE XX XXXXXX XXX XXX XXXX XX XXXXXX APPLICABLE
THEREIN, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING
PROVISION OR RULE (WHETHER OF THE PROVINCE OF QUEBEC, OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN
THE PROVINCE OF QUEBEC TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING,
THE LAW OF THE PROVINCE OF QUEBEC WILL CONTROL THE INTERPRETATION AND
CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION'S
CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME
OTHER JURISDICTION WOULD ORDINARILY APPLY. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY RELATED DOCUMENT MAY
BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE PROVINCE OF QUEBEC, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO HEREBY
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY AND
ASSETS, GENERALLY AND UNCONDITIONALLY THE JURISDICTION OF THE AFORESAID
COURTS.
5.4 Counterparts
This Agreement may be executed in any number of counterparts, including
by facsimile, and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
5.5 Language
The Parties acknowledge and are satisfied that this Agreement be
initially drawn up in the English language. Notwithstanding the
foregoing, the Parties agree to instruct Stikeman Elliott to translate
this Agreement into the French language and to circulate a draft
translated version to the Parties forthwith following the date hereof
and in any event by no later than March 31, 2002, whereupon the Parties
shall have 15 days to comment thereon in writing to the other Parties
(such comments limited to issue of translation only and not of
substance). Upon agreement as to the final French translation of this
Agreement by the Parties, each of whom shall act diligently and in good
faith in respect thereof, the English and French versions of this
Agreement shall together be deemed to constitute one and the same
agreement.
-10-
IN WITNESS WHEREOF the Parties have caused this Share Exchange
Agreement to be executed by their respective duly authorized officers.
JPMP TIW EH, LP
By: 516145 N.B. Inc., its General Partner
Per:
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
CAPITAL COMMUNICATIONS CDPQ INC.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
TELESYSTEM INTERNATIONAL WIRELESS INC.
By:
------------------------------------
Name:
Title:
U.F. INVESTMENTS (BARBADOS) LTD.
By:
------------------------------------
Name:
Title:
