POST-IPO SHAREHOLDERS' AGREEMENT # 2
THIS POST-IPO SHAREHOLDERS' AGREEMENT # 2 (this "Agreement") is made and
entered into on and as of - -, 1999 by and among (i) NETIA HOLDINGS S.A.,
(formerly R.P. Telekom S.A.), a company organized and existing under the laws of
the Republic of Poland with its headquarters at xx. Xxxxxxxx 00, 00-000 Xxxxxx,
Xxxxxx (the "Company"), (ii) XXXXXXX INVESTMENTS LIMITED, a public company
incorporated under the laws of Israel ("Xxxxxxx"), (iii) TREFOIL CAPITAL
INVESTORS L.P., a limited partnership organized under the laws of Delaware
("Trefoil"), (iv) SHAMROCK HOLDINGS, INC., a corporation organized under the
laws of Texas ("Shamrock"), (v) GS CAPITAL PARTNERS L.P., a limited partnership
organized under the laws of Delaware ("GSCP"), (vi) STONE STREET FUND 1994,
L.P., a limited partnership organized under the laws of Delaware ("Stone
Street"), (vii) XXXXXX XXXXXX XXXX 0000, L.P., a limited partnership organized
under the laws of Delaware ("Xxxxxx Xxxxxx" and, together with GSCP and Stone
Street, the "GSCP Entities"), (viii) TELIA AB (publ.), a company organized under
the laws of the Kingdom of Sweden ("Telia") and (ix) (a) WARBURG, XXXXXX EQUITY
PARTNERS, L.P., a Delaware limited partnership ("WPEP"), (b) WARBURG, XXXXXX
VENTURES INTERNATIONAL, L.P., a Bermuda limited partnership ("WPVI"), (c)
WARBURG, XXXXXX NETHERLANDS EQUITY PARTNERS 1, C.V., a Dutch limited partnership
("WPNE I"), (d) WARBURG, XXXXXX NETHERLANDS EQUITY PARTNERS II, C.V., a Dutch
limited partnership ("WPNE 11") and (e) WARBURG, XXXXXX NETHERLANDS EQUITY
PARTNERS III, C.V., a Dutch Limited partnership ("WPNE III" and, together with
WPEP, WPVI, WPNE I and WPNE 11, the "WP Entities" and each individually the "WP
Entity"). Xxxxxxx, Trefoil, Shamrock, the GSCP Entities, Telia and the WP
entities are collectively referred to as the "Shareholders" and each
individually a "Shareholder", and the Company and the Shareholders are
collectively referred to as the "Parties" and each individually a "Party"-
WITNESSETH
WHEREAS, the Company, Xxxxxxx, Trefoil, Shamrock, the GSCP Entities, Telia
and the WP Entities are parties to a Pre-IPO Shareholders' Agreement, dated as
of May _, 1999 (the "Pre-IPO Shareholders' Agreement"), pursuant to which the
Parties have agreed, among other things, to enter into a Post-IPO Shareholders'
Agreement 4 1 and a Post-IPO Shareholders' Agreement # 2 upon the occurrence of
the Initial Public Offering, as defined therein, to set forth herein their
mutual understandings regarding the relations among them, and their respective
rights and obligations, with respect to the Company;
WHEREAS, the Initial Public Offering, as defined in the Pre-IPO
Shareholders' Agreement, has been completed;
NOW, THEREFORE, in consideration of the promises and mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. SALE AND ASSIGNMENT OF OWNERSHIP
Each Shareholder hereby agrees that it will not sell, assign, give, pledge,
encumber or otherwise transfer ("Transfer") any of the Shares owned by it,
whether voluntarily or by operation of law, unless it complies with the
following provisions:
1.1. Right of First Notice. If any Shareholder (the "Transferor") wishes to
Transfer all or any portion of the Shares held by it (the "Transfer Shares"),
the Transferor shall provide notice of the proposed Transfer to the other
Shareholders (the "Transfer Notice"). without the necessity of having first
entered into an agreement to sell to any third party. The Transfer Notice shall
be in writing, shall be delivered in accordance with Section 6.1 herein and
shall state the number of Shares offered, the proposed per Share transfer price
and, if one or more third party purchaser(s) is then known by the Transferor,
the identity of such purchaser(s). Each Shareholder shall have the right to give
up to one (1) Transfer Notice in any calendar month.
1.2. Right of First Offer. Each of the Shareholders other than the
Transferor (the "Participating Shareholder") shall have a right of first offer
upon receiving a Transfer Notice. Whichever among the Participating Shareholders
wishes to make an offer shall submit to the Transferor a written offer to
purchase all of the Transfer Shares at the price and upon the terms set forth in
the Transfer Notice, conditional only upon receiving the required Polish or
other governmental approvals (the "Offer to Purchase"), and such offer shall
provide that the Participating Shareholder will pay the purchase price within
thirty (30) days of the date of such Offer to Purchase. The Participating
Shareholders shall have the right to offer to purchase unconditionally, for cash
only, all, but not less than all, of the Transfer Shares. All Offers to Purchase
must be submitted in accordance with Section 6.1 herein.
1.3. The Offer to Purchase must be submitted by the Participating
Shareholders within the applicable time period as specified below (the "Offer
Period"):
1.3.1. If Telia or a WP Entity is the Transferor, the Offer to
Purchase must be submitted within thirty (30) days from the date of the
Transfer Notice; and
1.3.2. If any of the Shareholders other than Telia or a WP Entity is
the Transferor, whichever among Xxxxxxx, Trefoil, Shamrock and the GSCP
Entities are the Participating Shareholders shall have the right to submit
the Offer to Purchase and purchase the subject Shares prior in time to
Telia and the WP Entities submitting such offer. Therefore, (i) whichever
among Xxxxxxx, Trefoil, Shamrock and the GSCP Entities are the
Participating Shareholders must submit the Offer to Purchase within twenty
(20) days from the date of the Transfer Notice (and provide a copy of the
same to Telia and the WP Entities) and, (ii) if none of Xxxxxxx, Trefoil,
Shamrock and the GSCP Entities submits an offer during such twenty-day
period, then Telia and the WP Entities shall have the right to submit an
Offer to Purchase within a period of not less than twenty-one (21) days and
not more than thirty (30) days from the date of such Transfer Notice.
1.4. If the Transferor receives one or more Offers to Purchase, the
Transferor must accept all, but not less than all, of such Offers to Purchase,
whereupon each Participating
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Shareholder shall have thirty (30) days from the date of its Offer to Purchase
to pay for the offered Shares, within which period each such Participating
Shareholder must obtain any requisite Polish or other governmental approvals;
provided, however that, if such Participating Shareholder has made all necessary
filings and taken all other actions reasonably required to obtain such approval
but nevertheless fails to obtain such approvals within such thirty-day period,
the Participating Shareholder shall be required to obtain such approvals and pay
for such offered shares as soon as practicable, but not to exceed an additional
thirty (30) days thereafter, during which additional period interest on the
purchase price to be paid by the Participating Shareholder shall accrue and be
payable by the Participating Shareholder upon the payment thereof at the rate of
seven percent (7%) per annum. If, pursuant to Section 1.3.1 or 1.3.2(i) above,
more than one among the Participating Shareholders submits an Offer to Purchase,
the Transfer Shares shall be sold by the Transferor to such Participating
Shareholders pro rata based upon their then relative (as among themselves)
current ownership of Shares.
1.5. In the event that any transfer of shares pursuant to this Section I
requires a Polish or other governmental approval and such approval requires a
filing, provision of information or some other action to be taken by the
Company, the Company undertakes to use all reasonable efforts to make such
filing, provide such information and take such action so as to enable such
approval to be obtained within the time limits provided for the sale and
purchase of the Transfer Shares pursuant to Section 1.4 above. In the event that
such approvals are not obtained by a Participating Shareholder within the time
limits specified in Section 1.4 above, then such Participating Shareholder will
have no obligation to purchase any of the Transfer Shares, shall not be deemed a
Defaulting Shareholder (as defined in Section 1.6 below) and shall not be deemed
to have submitted an Offer to Purchase for purposes of Section 1.7 below.
Transfer of the Transfer Shares to any Participating Shareholder will take place
simultaneously with payment by that Participating Shareholder for those Transfer
Shares, but otherwise in all respects on the same terms as set out in the
Transfer Notice.
1.6. If any Participating Shareholder who makes an Offer to Purchase
defaults on its obligation to pay for the Transfer Shares in accordance with
Section 1.4 (a "Defaulting Shareholder"), then, in addition to any other rights
that the Transferor may have under applicable law or otherwise, the Defaulting
Shareholder shall no longer have the right to receive Transfer Notices or make
Offers to Purchase with respect to any future proposed Transfers by other
Shareholders. In the case of such a default (or in the case of a Participating
Shareholder who has not obtained the necessary consents and approvals within the
time frame set forth in Section 1.4 above), (i) if one or more Participating
Shareholders other than the Defaulting Shareholder (or the Participating
Shareholder who failed to obtain the necessary consents and approvals) have made
an Offer to Purchase, then the Transfer Shares shall be sold to such other
Participating Shareholder(s) on a pro rata basis based upon their relative (as
among themselves) ownership of Shares as at the commencement of the Offer Period
and (ii) if no Participating Shareholders other than the Defaulting Shareholder
(or the Participating Shareholder who failed to obtain the necessary consents
and approvals) have made an Offer to Purchase, then the Transfer Shares as to
which such Offer to Purchase was made can be sold to a third party as provided
in Section 1.7.
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1.7. If none of the Participating Shareholders submit an Offer to Purchase
or if the circumstances contemplated by clause (ii) of the last sentence of
Section 1.6 above apply, then the Transferor shall have the right, exercisable
not later than one-hundred and twenty (I 20) days following the expiration of
all relevant Offer Periods, or such longer period as may be necessary to effect
a demand registration pursuant to a registration rights agreement to be entered
into in connection with this Agreement, the form of which is attached hereto as
Exhibit A (the "Registration Rights Agreement"), and upon written notice to the
other Parties (which notice shall include the identity of the party to which the
Transfer Shares are being transferred), to consummate the Transfer of all or any
portion of the Transfer Shares to any other persons at a price not lower than
the price, and upon the terms (other than the identity of the possible
purchaser), set forth in the Transfer Notice. If the Transferor does not
consummate such Transfer within such one-hundred and twenty (120) -day period,
or such longer period as may be necessary to effect a demand registration
pursuant to the Registration Rights Agreement, such Transfer Shares shall again
be subject in all respects to the terms, conditions and restrictions provided in
this Section 1.
1.8. The right of first offer provided in this Section I shall not apply
to:
1.8.1. any sale of Shares by any of the Shareholders under Rule 144 of
the U.S. Securities Act of 1933;
1.8.2. any Transfers among each other by any of Xxxxxxx, Trefoil,
Shamrock and the GSCP Entities; provided that in such case the Transferor
shall notify each of the other Shareholders of the number of Shares
transferred and the identity of the Transferee;
1.8.3. any Transfers among each other by any of the WP Entities;
provided that in such case the Transferor shall notify each of the other
Shareholders of the number of Shares transferred and the identity of the
Transferee;
1.8.4. any sale of Shares by any of the Shareholders for which such
Shareholder(s) has exercised piggyback rights pursuant to the Registration
Rights Agreement; and
1.8.5. any Transfer by any Participating Shareholder to any of its
Affiliates (an "Affiliate Transferee") which, solely for this purpose, (A)
in the case of Telia, shall include the Unisource venture or one or more of
the Unisource shareholders, (B) in the case of Xxxxxxx, shall also include
Matav Cable Systems Media Ltd. ("Matav") for as long as that entity is
directly or indirectly controlled by Xxxxxxx and (C) in the case of
Trefoil, shall include its partners in connection with the dissolution of
Trefoil, provided that such partners shall appoint Xxxxxxx X. Gold or
Xxxxxx Xxxxxxxxx (or such other person or entity as shall be reasonably
satisfactory to the Shareholders) to act as sole representative for such
partners with respect to all of the Shares (and related rights) so
transferred to them, and such person or entity shall remain the sole
representative for as long as such partners own such Shares; and provided
further that in each case contained in this Section 1.8.3, the Affiliate
Transferee complies with Section 1.9 below.
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1.9. In each case referred to in Section 1.8.5, the Affiliate Transferee
agrees to be bound by the provisions of this Agreement, and if the Affiliate
Transferee ceases to be an Affiliate of such Shareholder (except if the
transferring Shareholder is Xxxxxxx, the Affiliate Transferee is Matav and Matav
has held such Shares for at least two (2) years), such Affiliate Transferee
shall be required to offer to sell the Shares transferred to such transferee to
the other Shareholders in accordance with Section 1.1 above, within fifteen (I
5) days of the date upon which the Affiliate Transferee ceases to be an
Affiliate of such Shareholder, at the Market Price for such Shares. For purposes
of the foregoing, "Market Price" shall be deemed to be the average closing price
for the Shares on the Nasdaq National Market or, if the Shares are not listed on
the Nasdaq National Market, such other principal securities exchange on which
the Shares are traded during the ten (10) days prior to the date of the
applicable Transfer Notice.
1.10. The provisions set forth in this Section I shall not apply to: (i)
sales by the WP Entities of Shares in unsolicited open market transactions to
buyers in respect of whom there had been no pre-arrangements made by the WP
Entities regarding such sales; (ii) bona fide underwritten public offerings; or
(iii) distributions by the WP Entities of Shares to the partners in its
partnerships, provided that such distributions are not part of a plan or
arrangement to transfer all or a substantial portion of the shares held by the
WP Entities to any particular person or entity.
1.11. A transfer of Shares to a depository shall not be deemed a Transfer
under this Agreement; provided that the depository receipts issued upon such
deposit shall be deemed to be Shares for purposes of this Agreement.
1.12. For purposes of this Section I only, (i) the GSCP Entities and their
Permitted Controlled Affiliate Transferees shall be treated as one Shareholder,
(ii) Shamrock and Trefoil and their Permitted Controlled Affiliate Transferees
shall be treated as one Shareholder, (iii) Xxxxxxx and its Permitted Controlled
Affiliate Transferees shall be treated as one Shareholder, (iv) Telia and its
Permitted Controlled Affiliate Transferees shall be treated as one Shareholder
and (v) the WP Entities and their Permitted Controlled Affiliate Transferees
shall be treated as one Shareholder. In this Agreement, "Affiliate" shall mean
any firm, company or corporation which a Party shall directly or indirectly
control, is controlled by or is under common control with. As used in the
preceding sentence, "control" means the right to exercise, directly or
indirectly, more than fifty percent (50%) of the voting rights attributable to
the shares of the controlled entity, or the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
the controlled entity.
2. NON-COMPETITION
Each of the Shareholders agrees that, for so long as such Shareholder owns
five percent (5%) or more of the outstanding voting securities of the Company
or, if sooner, upon the termination of this Agreement with respect to such
Shareholder, and in each case for a period of one (1) year thereafter, such
Shareholder and its respective subsidiaries, officers and directors shall not
directly or indirectly own, manage, operate, join, control or participate in, be
compensated by or invest in or be connected with any telecommunication entity,
or otherwise engage in any telecommunications activities (such as fixed-line,
cellular, value-added, CPE, and content provisions such as for CATV), in any
such case, in the territory of the Republic of Poland,
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other than the Company and its subsidiaries; provided, however, that this
Section 2 shall not apply to the following:
2.1. the wireless public trunked radio activities of Uninet Sp. z o.o., an
Affiliate of the Company;
2.2. (a) the activities conducted by Unisource N.V., a Dutch company of
which Telia is a shareholder, and any entity which is an Affiliate thereof;
provided, however, that Telia shall not provide any advice or support in
connection with the activities conducted by Unisource N.V. in the Republic of
Poland and (b) the conduct by Telia of its ordinary course of business
activities as a provider of telecommunications services in Sweden and other
countries which, in certain cases, may involve interaction and exchange of
services with providers of telecommunications services in Poland (but not the
expansion by Telia into any other telecommunications activities in Poland, and
without limiting the provisions of Section 2.4 below);
2.3. investment banking activities by Xxxxxxx Sachs International and/or
its Affiliates; provided that such Shareholder implements and maintains
appropriate "Chinese Wall" safeguards;
2.4. investment or other engagement by a Shareholder in an entity that is
not engaged in local, domestic long distance, international fixed-line telephony
and/or voice-over internet services in Poland, but rather is engaged in other
telecommunications activities such as cellular or other wireless mobile services
or cable television in Poland if, prior to making such an investment or
otherwise engaging in such entity, (A) such Shareholder offers the Company the
opportunity to make such investment or otherwise engage in such entity on the
same terms offered to such Shareholder or offered by such Shareholder to a third
party, and (B) the Supervisory Board, within thirty (30) days of receiving
notification of such opportunity, elects not to pursue the opportunity, it being
agreed that in voting on such matter, the approval of one or more of the
Supervisory Board representatives of the Shareholder making such proposal which
would otherwise be required pursuant to Section 1.1.1(xiii) of the Post-IPO
Shareholders' Agreement # I among Telia, Xxxxxxx, Trefoil, Shamrock and the
Company, dated the date hereof, shall not be required; provided that, if the
Company elects not to pursue such opportunity, the Shareholders other than the
Shareholder making the proposal shall be permitted (but shall not have the
right) to participate in the same opportunity with the Shareholder making the
proposal without offering such opportunity to the Company;
2.5. an investment by a Shareholder of up to one percent (M) of the
securities of any publicly traded enterprise, provided that the Shareholder is
not entitled to any board representation, veto rights or other special rights
relating thereto;
2.6. any investment by one or more of the WP Entities in a company that is
neither (i) organized under the laws of Poland, nor (ii) whose principal place
of business is in Poland and is engaged in one or more aspects of the
telecommunications business and that at the time of the WP Entities' investment
does not have as its principal objective the provision of telecommunications
services (such as fixed line, cellular, IP, data, value-added, CPE or content
provisions such as CATV) in Poland; provided, that, if in the course of such
investment such company comes to
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derive more than 15% of its annual consolidated revenues from such services in
Poland, then: (x) the WP Entities shall give prompt notice to the Company and
the other Shareholders of such investment; (y) no representative of the WP
Entities who is then serving, or within the immediately preceding twelve months
has served, as a member of the Supervisory Board, shall hold any position as a
director, officer or consultant to the company in which the WP Entities have
made such investment; and (z) the representatives of the WP Entities on the
Supervisory Board shall exclude themselves from any discussions involving
matters related to direct competition between the Company and such other WP
Entity investment; and
2.7. any investment by the WP Entities in a company engaged in direct
competition with the Company in Poland from and after the later of (i) December
31, 2001 or (H) the completion of the second consecutive fiscal year of the
Company in which the Company has failed to meet any one of the following
parameters: at least 90% of the revenue target (in PLN); at least 90% of the
EBITDA target (in PLN); or at least 90% of the network build-out target, in each
case as set forth in the Company's ten-year business plan as approved by the
Supervisory Board and the WP Entities; provided that, (x) the WP Entities give
prompt notice to the Company and the other Shareholders of such investment, (y)
no representative of the WP Entities who is then serving, or within the
immediately preceding twelve months has served, as a member of the Supervisory
Board, shall hold any position as a director, officer or consultant to the
company in which the WP Entities have made such investment, and (z) the
representatives of the WP Entities on the Supervisory Board shall exclude
themselves from any discussions involving matters related to direct competition
between the Company and such other WP Entity investment.
3. CONFIDENTIALITY
3.1. Each Party hereby undertakes to keep and procure that its directors,
employees, agents and advisors shall keep in strict confidence all information,
knowledge, data, drawings, designs and other material of a confidential nature
("Information") communicated to it by or acquired from the Company or any other
Party prior to the effective date of this Agreement, it being understood that
this Agreement shall not be deemed to provide any Shareholder with the right to
obtain any information from the Company beyond what is required by applicable
law. Included in the definition of Information is information relating to the
business of the Company as well as information relating to the business of each
of the Shareholders (whether or not such information relates to the territory in
which the Company does business). No Party shall disclose any such Information
to any person whatsoever other than its directors or employees, agents,
affiliates and advisers directly concerned in the performance of this Agreement
and the affairs of the Company and each Party shall inform all such persons of
the confidential nature of the Information and shall accept responsibility for
compliance by such persons with this Section 3.
3.2. The provisions of this Section 3 shall not apply to Information which
the Party concerned can prove was lawfully in its possession at the date of
receipt or which becomes public knowledge (except by reason or default of such
Party) or which such Party obtains from some other person with good legal title
thereto, or is independently developed by such Party.
3.3. Notwithstanding the provisions of this Section, each Party shall (on a
"need to know" basis) be at liberty to disclose Information where, and to the
extent that, such disclosure is
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properly made pursuant to and in accordance with a relevant statutory obligation
or as otherwise may be required by the Company in its business and regulatory
activities with government agencies, vendors, bankers or potential investors or
as otherwise may be required by applicable law; provided however, that the
disclosing Party shall take reasonable steps to obtain, if possible, a written
confidentiality undertaking from such person to whom it wishes to disclose such
Information, that is consistent with the terms of this Agreement and that the
Party from whom the disclosing Party obtained the relevant Information is given
prior written notice of such disclosure.
3.4. The provisions of this Section 3 shall remain in force for a period
commencing on the date of this Agreement and, in respect of any one Shareholder,
end on the second anniversary of that Shareholder ceasing to be a Shareholder in
the Company.
4. ARBITRATION AND DISPUTE RESOLUTION
4.1. The Parties desire that this Agreement operate between them fairly and
reasonably. If during the term of this Agreement, a dispute arises between the
Parties, or one Party perceives the other as acting unfairly or unreasonably, or
a question of interpretation arises under this Agreement, then the Parties shall
promptly confer and exert their best efforts in good faith to reach a reasonable
and equitable resolution of the issue. If the disputing Parties are unable to
resolve the issue within twenty (20) business days, the matter shall be resolved
in accordance with Section 4.2.
4.2. In the event the disputing Parties are unable to resolve any dispute
hereunder by the procedures set forth in Section 4.1, such dispute shall be
finally settled by arbitration in accordance with the Rules of Arbitration of
the United Nations Commission on International Trade Law (the "UNCITRAL
Arbitration Rules") in effect on the date of this Agreement. The number of
arbitrators shall be three (3). Each of the disputing Parties shall appoint one
(1) arbitrator and they shall jointly appoint the third arbitrator. The third
arbitrator shall be chairman of the arbitral tribunal. The President (Prezes) of
the Polish Chamber of Commerce (Krajowa Izba Gospodarcza) in Warsaw shall act as
the "appointing authority" under the UNCITRAL Arbitration Rules if either
disputing Party fails to appoint an arbitrator or if they both fail to appoint
jointly the third arbitrator within the limits specified in the UNCITRAL
Arbitration Rules. The place of arbitration shall be Warsaw, Poland. The
language to be used in the arbitral proceeding shall be English. The disputing
Parties shall equally share the expenses of the arbitrator(s) and the
administrative costs of the arbitration proceedings, but each disputing Party
shall bear its own costs and expenses, including fees and expenses of its own
legal counsel. The pending of the arbitration proceeding shall not in and of
itself relieve either disputing Party from its duty to perform under this
Agreement.
5. REPRESENTATIONS AND WARRANTIES
5.1. Representations and Warranties of the Company. The Company represents
and warrants to each of the Shareholders as follows:
5.1.1. The Company is duly organized, validly existing and in good
standing under the laws of the Republic of Poland, and has all requisite
corporate power and
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authority to enter into this Agreement and perform each and every
obligation required to be performed by it hereunder.
5.1.2. The execution, delivery and performance of this Agreement by
the Company and the consummation by the Company of the transactions
contemplated under this Agreement have been duly and validly authorized by
all necessary corporate actions on the part of the Company.
5.1.3. This Agreement has been duly executed and delivered by the
Company and, assuming this Agreement constitutes a valid and binding
obligation of the other parties hereto, constitutes a valid and binding
obligation of the Company enforceable in accordance with its terms except
as enforcement may be limited by bankruptcy, insolvency or other similar
laws and by equitable principles.
5.1.4. The execution and delivery of this Agreement by the Company
does not, and performance of this Agreement by the Company will not (i)
require the consent, approval or authorization of any person, entity or
public authority, (ii) conflict with the statutes of the Company or give
rise to a right to accelerate or terminate any agreement, loan agreement,
security instrument, deed of trust or other regulation or other provision
of law or, to the knowledge of the Company, any order, judgment or other
direction of any court or tribunal of competent jurisdiction or (iii) give
rise to any lien, claim, encumbrance or restriction on any of the licenses
or other assets of the Company.
5.2. Representations and Warranties of the Shareholders. Each Shareholder,
severally and not jointly, represents and warrants to the Company and to each of
the other Shareholders as follows:
5.2.1. Such Shareholder is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, and
has all requisite corporate or other power and authority to enter into this
Agreement and perform each and every obligation required to be performed by
it hereunder.
5.2.2. The execution, delivery and performance of this Agreement by
such Shareholder and the consummation by such Shareholder of the
transactions contemplated under this Agreement have been duly and validly
authorized by all necessary corporate or other actions on the part of such
Shareholder.
5.2.3. This Agreement has been duly executed and delivered by such
Shareholder and, assuming the Agreement constitutes a valid and binding
obligation of the other parties hereto, constitutes a valid and binding
obligation of such Shareholder enforceable in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency or other
similar laws and by equitable principles.
5.2.4. Except as set forth in Schedule 5.2.4, the execution and
delivery of this Agreement by such Shareholder does not, and the
performance of this Agreement by such Shareholder will not (i) require the
consent, approval or authorization of any person,
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entity or public authority (except, in the case of Xxxxxxx, the approval of
the Bank of Israel to the extent required by law), (ii) conflict with such
Shareholder's statutes, articles of association or other governing
documents or give rise to a right to accelerate or terminate any agreement,
loan agreement, security instrument, deed of trust or other regulation or
other provision of law or, to the knowledge of such Shareholder, any order,
judgment or other direction of any court or tribunal of competent
jurisdiction or (iii) give rise to any lien, claim, encumbrance or
restriction on any of the assets of such Shareholder.
6. MISCELLANEOUS
Notices. All notices or other communications required or permitted to be given
hereunder shall be (as elected by the person giving such notice) (i) personally
delivered with written confirmation of receipt, (ii) transmitted by postage
prepaid registered mail (airmail if international) or (iii) transmitted by
facsimile transmission and with postage prepaid mail confirmation (airmail if
international) to the Parties as follows:
Netia Holdings S.A.
Netia Holdings S.A.
xx. Xxxxxxxx 00
00-000 Xxxxxx
Xxxxxx
Attn: Meir Srebernik
Facsimile: 48 22 496435
Telephone: 00 00 000000
with a copy to:
Weil, Gotshal & Xxxxxx
Xxx Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attn: Xxxxxxx Xxxxxxx
Facsimile: 44 171 903 0990
Telephone: 00 000 000 0000
and to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 10 1 5 3
U.S.A.
Attn: Xxxxxxx Xxxxx
Facsimile: 1 212 310 8007
Telephone: 0 000 000 0000
-00-
Xxx Xxxxxxxxxxxx:
Xxxxx XX
Business Area International
X-000 00 Xxxxxx
Xxxxxx
Attn: Clas Hygrell, Vice President, Business Development
Facsimile: 46 8 713 3152
Telephone: 00 0 000 0000
With a copy to:
Telia AB, Legal Affairs
Attn: Jan-Henrik Ahmell, Director, Legal Affairs
X-000 00 Xxxxxx
Xxxxxx
Facsimile: 46 8 94 64 70
Telephone: 00 0 000 0000
Xxxxxxx Investments Limited
0, Xxxxxx Xxxxxx
Xxx Xxxx
Xxxxxx 00000
Fascimile: 972 3 544 0999
Attn: Xxxxx Xxxxxx
G S Capital Partners, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Facsimile: 1 212 902 3000
Attn: Xxx Xxxxxxxx
With a copy to:
Xxxxxxx Sachs International Limited
Xxxxxxxxxxxx Xxxxx
000 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile: 44 171 774 4123
Telephone: 00 000 000 0000
Attn: Xxxxxx Xxxxx
Shamrock Holdings, Inc.
-11-
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
X.X.X.
Facsimile: 1 818 845 4675
Attn: Xxxxxx X. Xxxxxxx
Trefoil Capital Investors L.P.
000 Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
U.S.A.
Facsimile: 1 818 842 3142
Attn: Xxxxxx X. Xxxxxxxxx
Managing Director of Trefoil Investors, Inc.
Stone Street Fund 1994, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 1 212 902 3000
Attn: Xxx Xxxxxxxx
Xxxxxx Xxxxxx Xxxx 0000, X.X.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Facsimile: 1 212 902 3000
Attn: Xxx Xxxxxxxx
The WP Entities
X.X. Xxxxxxx, Xxxxxx & Co., LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 100 1 7
U.S.A.
Facsimile: 1 212 878 9351
Telephone: 0 000 000 0000
Attn: Xxxxxxx Xxxxxxx
With a copy to:
X.X. Xxxxxxx, Xxxxxx & Co. International Ltd.
Xxxxxx House
00 Xxxx Xxxxxx, Xx. Xxxxx'x
Xxxxxx XXxX 0XX
-12-
England
Facsimile: 44 171 321 0881
Telephone: 00 000 000 0000
Attn: Xxxxxxx Italia
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 100 1 0-0000
X.X.X.
Facsimile: 1 212 728 81 11
Telephone: 0 000 000 0000
Attn: Xxxxx X. Xxxxx
Except as otherwise specified herein, all notices and other communications shall
be deemed to have been given on the date of receipt if delivered personally or
by mail or on the date of transmission with confirmed answer back if transmitted
by telecopy or telex, whichever shall first occur. Any Party hereto may change
its address for purposes hereof by written notice to the other Parties in
accordance with this Section 6. 1.
6.1. Effective Date; Entire Agreement; Amendments. This Agreement shall
become effective upon signing. Upon such effectiveness, this Agreement, together
with (i) the Exhibit attached hereto, which is incorporated in and is deemed to
be a part of the Agreement, and (ii) the Post-IPO Shareholders' Agreement # I
among Telia, Xxxxxxx, Trefoil, Shamrock, the WP Entities and the Company dated
the date hereof, shall constitute the entire agreement between the Parties and
supersede all prior agreements or understandings between them with respect to
the matters referred to herein (including, without limitation, the Amended and
Restated Pre-IPO Shareholders' Agreement among the Parties). This Agreement may
be modified or amended only by an instrument in writing signed by all Parties.
6.2. Shares Subject to this Agreement. Each of the Shareholders agrees that
all Shares owned by them, whether now owned or hereafter acquired by them, shall
be subject to this Agreement.
6.3. No Agency. Nothing in or arising out of this Agreement is to be taken
as constituting a partnership or agency relationship between the Parties, and no
Party shall have the right or authority to bind or commit the other in any
manner or for any purposes whatsoever, other than as expressly provided for
herein with respect to the Company.
6.4. Further Action. Each Party agrees to perform any further acts, give
further assurances and execute and deliver any further documents as may be
necessary or convenient to carry out the provisions and intent of this
Agreement. Each Party shall use and exercise its rights and powers (as to voting
or otherwise) in and in relation to the Company in order to give full effect to
the provisions of this Agreement. The Parties will do all acts required,
including but not limited to, passing appropriate resolutions of the Company, to
cause the Company to undertake to perform the obligations imposed upon it by the
terms of the Agreement.
-13-
6.5. No Waiver. No relaxation, forbearance, delay or indulgence by any
Party in enforcing any of the terms and conditions of this Agreement or the
granting of time by any Party to any other Party shall prejudice, affect or
restrict the rights and powers of such Party hereunder nor shall any waiver by
any Party or any breach hereof operate as a waiver of or in relation to any
subsequent or continuing breach hereof.
6.6. Governing Law; Construction. This Agreement and the rights of the
Parties hereunder shall be governed by and interpreted in accordance with the
laws of the Republic of Poland.
6.7. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original but both of which shall
constitute one and the same document.
6.8. Costs and Reimbursements. Unless otherwise stated in this Agreement,
all expenses involved in the negotiation, preparation and consummation of this
Agreement shall be borne by the Party incurring such expenses.
6.9. Termination. This Agreement and the transactions contemplated
hereunder shall terminate in any of the following ways:
6.9.1. Automatically with respect to any Shareholder and its Affiliate
Transferees if such Shareholder ceases to own Shares representing at least
2.5% of the outstanding voting securities of the Company; or
6.9.2. Automatically, when the only remaining parties to this
Agreement are the Company and any one Shareholder; or
6.9.3. Upon the dissolution or liquidation (voluntary or in
bankruptcy) of the Company; or
6.9.4. By the unanimous written agreement of the Parties.
If this Agreement is terminated without a breach or default by any of
the Parties, then all of the Parties shall be released from any and all
liabilities hereunder except those obligations in Section 2 for the period
set forth therein and Section 3 for the period set forth in Section 3.4.
6.10. Binding on Successors; Non-Assignability. This Agreement shall be
binding upon and inure to the benefit of each of the Parties and their
respective legal representatives, successors and permitted assigns; provided
that, except as specified in Sections 1.8.5 and 1.9, no Party may assign any
rights or delegate any duties under this Agreement, in whole or in part, without
the prior written consent of the other Parties.
6.11. Severability. If any provision of this Agreement shall be determined
by any court of competent jurisdiction to be invalid or unenforceable, the
remainder of the Agreement other than the portion determined to be invalid or
unenforceable shall not be affected thereby, and each
-14-
valid provision thereof shall be enforced to the fullest extent permitted by
law. The Parties will, to the extent possible, modify such term or provision so
that such provision is no longer invalid or unenforceable.
6.12. Treatment of Certain Parties. For purposes of Section 2 and Section
6.10.1 of this Agreement, (i) the GSCP Entities shall be treated as one
Shareholder, (ii) Shamrock and Trefoil shall be treated as one Shareholder,
(iii) the WP Entities shall be treated as one Shareholder and (iv) a Shareholder
and its Affiliate Transferees shall be treated as one Shareholder.
6.13. Nature of Liability. The liability of each of the WP Entities is
several and not joint and no one of the WP Entities shall be liable in any way
for the acts or omissions of any other of the WP Entities
-15-
IN WITNESS WHEREOF, the Parties hereto have duly executed and delivered
this Agreement as an instrument under sea] as of the day and year first above
written.
NETIA HOLDINGS S.A.
By: ______________________________
Printed Name: ____________________
Title: ___________________________
THE SHAREHOLDERS:
TELIA AB (publ.)
By: ______________________________
Printed Name: ____________________
Title: ___________________________
XXXXXXX INVESTMENTS LIMITED
By: ______________________________
Printed Name: ____________________
Title: ___________________________
SHAMROCK HOLDINGS, INC.
By: ______________________________
Printed Name: ____________________
Title: ___________________________
-00-
XXXXXXX XXXXXXX XXXXXXXXX L.P.
By: ______________________________
Printed Name: ____________________
Title: ___________________________
GS CAPITAL PARTNERS L.P.
By: ______________________________
Printed Name: ____________________
Title: ___________________________
XXXXX XXXXXX XXXX 0000, X.X.
By: ______________________________
Printed Name: ____________________
Title: ___________________________
XXXXXX XXXXXX XXXX 0000, X.X.
By: ______________________________
Printed Name: ____________________
Title: ___________________________
WARBURG, XXXXXX EQUITY PARTNERS, L.P.
By Warburg, Xxxxxx & Co.,
its General Partner
By: ______________________________
Printed Name: ____________________
Title: Partner
WARBURG, XXXXXX VENTURES
INTERNATIONAL, L.P.
By Warburg, Xxxxxx & Co.,
its General Partner
By: ______________________________
Printed Name: ____________________
Title: Partner
WARBURG, XXXXXX NETHERLANDS
EQUITY PARTNERS 1, C.V.
By Warburg, Xxxxxx & Co.,
its General Partner
By: ______________________________
Printed Name: ____________________
Title: Partner
WARBURG, XXXXXX NETHERLANDS
EQUITY PARTNERS 11, C.V.
By Warburg, Xxxxxx & Co.,
its General Partner
By: ______________________________
Printed Name: ____________________
Title: Partner
WARBURG, XXXXXX NETHERLANDS
EQUITY PARTNERS 111, C.V.
By Warburg, Xxxxxx & Co.,
its General Partner
By: ______________________________
Printed Name: ____________________
Title: Partner
