STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT dated as of August 18, 1997 (this
"Agreement"), is made and entered into by and among International Wireless
Communications Holdings, Inc., a Delaware corporation ("IWCH"), and Pakistan
Wireless Holdings Limited, a Mauritius company ("PWH").
RECITALS
WHEREAS, IWCH has formed PWH as an indirect wholly owned subsidiary
and agreed to transfer 493,510 shares of IWCH Class 1 Common Stock, par value
$.01 per share, to PWH (the "Transferred Shares");
WHEREAS, PWH has borrowed funds pursuant to that certain Loan
Agreement dated August 18, 1997 among PWH, Toronto Dominion Investments, Inc.
("TDI") and the other lenders named therein (together with TDI, the "Lenders")
(the "PWH Loan Agreement") to purchase ordinary shares (the "Shares") of
International Wireless Communications Pakistan, Limited. ("IWCPL").
WHEREAS, the Shares have been pledged to TDI, as agent for the
Lenders, to secure the obligations of PWH under the PWH Loan Agreement; and
WHEREAS, as a condition to transferring the Transferred Shares to PWH,
IWCH will receive an option to purchase the Shares in accordance with the terms
and conditions of this Agreement;
NOW, THEREFORE, based on the foregoing premises and for good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:
1. GRANT OF OPTION. PWH hereby grants to IWCH, an exclusive and
irrevocable option (the "Option") to purchase, subject to the terms and
conditions of this Agreement, all or any portion of the ordinary and preference
shares of IWCPL owned by PWH (together with any shares of capital stock into
which such ordinary and preference shares have been converted, whether by
merger, exchange, reclassification or otherwise, the "Option Shares").
2. EXERCISE PRICE; PAYMENT. The exercise price of the Option Shares
purchased by IWCH pursuant to Section 1 hereof shall be the original purchase
price of such Option Shares paid by PWH for such shares together with any
amounts funded PWH as additional capital contributions with respect to such
shares (the "Exercise Price"). The Exercise Price shall be paid in cash (by
check or wire transfer) or cancellation of all indebtedness of PWH held by IWCH,
the value of which indebtedness shall be as determined in good faith by the
Board of Directors of IWCH.
3. EXERCISE OF OPTION; DURATION; CLOSINGS.
(a) The Option may be exercised at any time after the Exercise
Date (as defined below) and prior to the Expiration Date (as defined below).
(b) The "Exercise Date" is the first date on which the
obligations of the borrower under the PWH Loan Agreement and under the loan
agreement dated August __, 1997 among IWCH, TDI and the other lenders named
therein are satisfied or discharged in full, whether by repayment at or prior to
maturity, exchange or cancellation of the promissory notes issued thereunder
(the "Notes").
(c) The "Expiration Date" shall be the date 180 days after the
Exercise Date.
(d) To exercise the Option, IWCH shall, prior to the Expiration
Date, send a written notice (a "Notice of Exercise") to PWH specifying (i) the
location, date and time for the closing (a "Closing") of the purchase (which
date shall be no later than five calendar days and no earlier than the next day
after the date such notice is mailed, but in no event earlier than the date on
or by which the condition specified in Section 4(a) has been satisfied); and
(ii) the form(s) in which the Exercise Price is to be paid with respect to the
Option. If the Closing is to occur sooner than three calendar days from the
date on which a Notice of Exercise is sent, notice shall also be given to PWH by
confirmed telecopy, at the time the Notice of Exercise is sent, of the
information contained in such Notice of Exercise.
(e) At the Closing:
(i) IWCH shall: (A) if it has elected to pay all or a
portion of the Exercise Price in cash, deliver to PWH by check or wire transfer
an amount equal to the cash portion of Exercise Price; and/or (B) if it has
elected to pay all or a portion of the Exercise Price by cancellation of
indebtedness, deliver to PWH the PWH appropriate documents evidencing the
indebtedness to be canceled and a certificate executed by the Chief Financial
Officer of IWCH setting forth the fair market value of such indebtedness.
(ii) PWH shall deliver to IWCH one or more certificates
registered in the name of IWCH representing Options Share being acquired by IWCH
at the Closing.
4. CONDITION TO CLOSING.
(a) CONDITIONS TO CLOSING OBLIGATIONS OF PWH AND IWCH. The
respective obligations of PWH and IWCH to proceed with the Closing shall be
subject to the satisfaction prior to the Closing of the condition that no order,
statute, rule, regulation, executive order, stay, decree, judgment or injunction
shall have been enacted, entered, issued, promulgated or enforced by any court
or governmental authority, subsequent to the date of this Agreement, that
prohibits or restricts the effectuation of any of the transactions contemplated
by this Agreement.
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(b) ADDITIONAL CONDITIONS TO PWH'S CLOSING OBLIGATIONS. In
addition to the condition specified in Section 4(a), the obligation of PWH to
proceed with the Closing shall also be subject to the satisfaction of the
following conditions (except to the extent waived by IWCH in its sole
discretion), notwithstanding the prior giving of Notice of Exercise providing
for the Closing:
(i) PWH shall have performed and complied in all material
respects with the agreements and obligations contained in this Agreement that
are required to be performed and complied with by it at or prior to the date of
the Closing; and
(ii) The representations and warranties of PWH contained
in this Agreement shall be true and correct in all material respects as of the
date of this Agreement, and shall be deemed to have been made again at and as of
the Closing and shall then be true and correct in all material respects.
(c) ADDITIONAL CONDITION TO IWCH'S CLOSING OBLIGATIONS. In
addition to the condition specified in Section 4(a), the obligation of IWCH to
proceed with any Closing shall also be subject to the satisfaction (except to
the extent waived by PWH, in its sole discretion), of the following conditions:
(i) IWCH shall have performed and complied in all
material respects with the agreements and obligations contained in this
Agreement that are required to be performed and complied with by it at or prior
to the date of the Closing; and
(ii) The representations and warranties of IWCH contained
in this Agreement shall be true and correct in all material respects as of the
date of this Agreement, and shall be deemed to have been made again at and as of
the Closing and shall then be true and correct in all material respects.
5. COVENANT BY PWH. Without IWCH's written consent (which may be
withheld at its sole discretion) PWH shall at no time prior to the Expiration
Date take, or refrain from taking, any action where the effect of so doing would
be to (i) prevent or disable PWH from delivering the Option Shares to IWCH upon
exercise of the Option, (ii) prevent or disable PWH from performing any of its
other obligations under this Agreement, or (iii) prevent or disable IWCH from
exercising any of its rights under this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF PWH. PWH represents and
warrants that, as of the date of this Agreement:
(a) PWH has full right, power and authority to enter into and
perform this Agreement (including, without limitation, full right, power and
authority to sell the Option Shares), and this Agreement has been duly
authorized by all necessary action on the part of PWH, and has been duly
executed and delivered by PWH and is valid, binding and enforceable against PWH
in accordance with its terms.
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(b) Subject to the PWH Loan Agreement and the transactions
contemplated thereby, PWH is the holder and beneficial owner of the Shares.
7. REPRESENTATIONS AND WARRANTIES OF IWCH. IWCH represents and
warrants that, as of the date of this Agreement:
(a) IWCH has full right, power and authority to enter into and
perform this Agreement, and this Agreement has been duly authorized by all
necessary action on the part of IWCH, and has been duly executed and delivered
by IWCH and is valid, binding and enforceable against IWCH in accordance with
its terms.
8. SPECIFIC PERFORMANCE. PWH and IWCH acknowledge that their
respective rights under this Agreement are unique and that neither of them will
have adequate remedies at law if another fails to perform any of its obligations
under this Agreement. Accordingly, PWH and IWCH agree that each shall have the
right, in addition to any other rights which it may have, to specific
performance and equitable injunctive relief if the other shall fail or threaten
to fail to perform any of its obligations under this Agreement.
9. MISCELLANEOUS.
(a) GOVERNING LAWS. It is the intention of the parties to this
Agreement that the internal laws of the State of California (irrespective of its
choice of law principles) shall govern the validity of its terms, and the
interpretation and enforcement of the provisions to this Agreement.
(b) NOT ASSIGNABLE. No party to this Agreement shall be
permitted to assign any of its rights or delegate any of its duties under this
Agreement without the prior written consent of the other parties.
(c) SEVERABILITY. If any provision of this Agreement, or the
application of such provision, shall for any reason and to any extent be invalid
or unenforceable, the remainder of this Agreement and application of such
provision to other persons or circumstances shall be interpreted so as best to
reasonably effect the intent of the parties to this Agreement. The parties
further agree to replace such void or unenforceable provision of this Agreement
with a valid and enforceable provision which will achieve, to the extent
possible, the economic, business and other purposes of the void or unenforceable
provision.
(d) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be an original as against any party whose
signature appears on such counterpart and all of which together shall constitute
one and the same instrument.
(e) OTHER REMEDIES. Except as otherwise provided in this
Agreement, any and all remedies expressly conferred by a party in this Agreement
shall be deemed cumulative with and not exclusive of any other remedy conferred
by this Agreement or by law on such party, and the exercise of any one remedy
shall not preclude the exercise of any other.
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(f) AMENDMENT AND WAIVERS. Any term or provision of this
Agreement may be amended, and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either retroactively
or prospectively) only by a writing signed by the party to be bound. The waiver
by a party of any breach of this Agreement or default in the performance of this
Agreement shall not be deemed to constitute a waiver of any other default or any
succeeding breach or default. The failure of any party to enforce any of the
provisions of this Agreement shall not be construed to be a waiver of the right
of such party thereafter to enforce such provisions.
(g) NOTICES. Whenever any party to this Agreement desires or is
required to give any notice, demand, or request with respect to this Agreement,
each such communication shall be in writing and shall be effective only if it is
delivered by personal service, by commercial overnight courier service, by
confirmed telecopy, or by mail (registered or certified mail, postage prepaid,
return receipt requested) to the respective parties at the addresses set forth
on the signature page hereto. Such communications shall be effective when they
are received by the addressee of such communication.
(h) HEADINGS. The titles and headings in this Agreement are for
reference purposes only and shall not in any manner limit the construction of
this Agreement which shall be considered as a whole.
(i) FURTHER ASSURANCES. Each party agrees to cooperate fully
with the other parties and to execute such further instruments, documents and
agreements and to give such further written assurances, as may be reasonably
requested by any other party to better evidence and reflect the transactions
described in this Agreement and contemplated by this Agreement and to carry into
effect the intents and purposes of this Agreement.
(j) ABSENCE OF THIRD PARTY BENEFICIARY RIGHTS. No provisions of
this Agreement are intended, nor shall be interpreted, to provide or create any
third party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, shareholder or partner of any party to this Agreement or
any other person or entity unless specifically provided otherwise to this
Agreement, and, except as so provided, all provisions of this Agreement shall be
personal solely between the parties to this Agreement.
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The parties have executed this Stock Option Agreement as of the date
first above written.
INTERNATIONAL WIRELESS
COMMUNICATIONS HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Executive Vice President
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PAKISTAN WIRELESS HOLDINGS, LTD.
By: /s/ Xxxxx X. Xxxxxxx
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Name:
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Title:
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SIGNATURE PAGE TO STOCK OPTION AGREEMENT
