EXHIBIT 10
TELESYSTEM INTERNATIONAL WIRELESS INC.
as Issuer
and
X.X. XXXXXX PARTNERS (BHCA), L.P.,
U.F. INVESTMENTS (BARBADOS) LTD.,
CAPITAL COMMUNICATIONS CDPQ INC. AND
TELESYSTEM LTD.
as Purchasers
and
ASIA OPPORTUNITY FUND, L.P.,
X.X. XXXXXX ASIA INVESTMENT PARTNERS, L.P.,
CAIP CO-INVESTMENT FUND PARALLEL FUND (I) C.V. AND
CAIP CO-INVESTMENT FUND PARALLEL FUND (II) C.V.
THIRD AMENDING AGREEMENT
TO THE
MASTER AND PURCHASE AGREEMENT
DATED AS OF NOVEMBER 28, 2001
FEBRUARY 5, 2002
THIRD AMENDING AGREEMENT DATED AS OF FEBRUARY 5, 2002 TO THE MASTER AND PURCHASE
AGREEMENT DATED AS OF NOVEMBER 28, 2001, AS SUCH MASTER AND PURCHASE AGREEMENT
HAS BEEN AMENDED BY THE FIRST AMENDING AGREEMENT DATED AS OF JANUARY 18, 2002
AND BY A SECOND AMENDING AGREEMENT DATED AS OF JANUARY 24, 2002 AMONG THE
PARTIES.
Among
TELESYSTEM INTERNATIONAL WIRELESS INC.
and
X.X. XXXXXX PARTNERS (BHCA), L.P. ,
ASIA OPPORTUNITY FUND, L.P.,
X.X. XXXXXX ASIA INVESTMENT PARTNERS, L.P.,
CAIP CO-INVESTMENT FUND PARALLEL FUND (I) C.V.,
CAIP CO-INVESTMENT FUND PARALLEL FUND (II) C.V.,
U.F. INVESTMENTS (BARBADOS) LTD.,
CAPITAL COMMUNICATIONS CDPQ INC.,
TELESYSTEM LTD.,
WHEREAS the Parties entered into a Master and Purchase Agreement dated as of
November 28, 2001, as amended by that certain First Amending Agreement dated as
of January 18, 2002 and that certain Second Amending Agreement dated as of
January 24, 2002 (the "MAPA"), to provide for the terms under which the Parties
hereto agreed to participate in the Recapitalization of the Issuer and the
Special Warrant Purchasers agreed to subscribe for up to $90,000,000 in Special
Warrants and under certain circumstances, be granted Purchase Warrants (the
"OFFER"), subject to certain conditions;
WHEREAS on February 2, 2002, the Ontario Superior Court of Justice (Commercial
List) rendered an order to enjoin the Issuer from consummating the Units Issuer
Bid unless the terms of the Units Issuer Bid are amended to allow holders of
Units the right to participate, on a pro rata basis, in the Offer made to CDPQ
and Telesystem;
WHEREAS the Issuer will amend the terms of the Units Issuer Bid to offer, for
each Unit tendered either (i) 5.46 Subordinate Voting Shares (the "SHARE
OPTION") or (ii) 5.46 Subordinate Voting Shares plus a certain number of
Subordinate Voting Shares to be issued upon payment of the Canadian dollar
equivalent of US$0.6124765 per share at the time of tender of the Unit plus a
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certain number of purchase warrants (the "WARRANTS"), each purchase warrant
entitling it to subscribe for one Subordinate Voting Share at a price of
Cdn$1.61 until March 31, 2003 (the "MIXED OPTION"). Furthermore, the Units
Issuer Bid will be amended to reflect the fact that the order rendered by the
Ontario Superior Court of Justice renders null and void the deemed exchange
clause of the Units exercisable on June 30, 2002 pursuant to the indenture
governing the Units;
WHEREAS if and to the extent the Mixed Option is accepted by the holders of
Units, the number of Special Warrants and Purchase Warrants to be subscribed
for, and granted to, CDPQ and Telesystem under the Offer shall be reduced by the
number of Subordinate Voting Shares and Warrants subscribed for and granted to
the holders of Units under the Mixed Option;
WHEREAS the Parties agree that it is desirable to amend the terms of the MAPA to
reflect the possibility of a reduction in the number of Special Warrants and
Purchase Warrants that may be subscribed for, and granted to, CDPQ and
Telesystem under the Offer and the proposed amendments to the Units Issuer Bid,
each as described above;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained in this Agreement and other valuable consideration (the receipt and
adequacy of this consideration by each of the Parties is hereby acknowledged),
the Parties agree as follows:
ARTICLE 1
INTERPRETATION
1.1 MAPA
(a) Except as expressly supplemented and modified herein, all of the
provisions, terms and conditions contained in the MAPA shall remain in full
force and effect.
(b) Unless otherwise defined or unless there is something in the
subject matter or the context inconsistent therewith, all capitalised terms and
expressions not otherwise defined in this Agreement have the meanings ascribed
to them in the MAPA.
1.2 Defined Terms
As used in this Agreement, including the recitals hereto but except in
references to the provisions of the MAPA, the following terms have the following
meanings:
"AGREEMENT" means this Third Amending 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.
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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.
ARTICLE 2
MAPA DEFINITION AMENDMENTS
2.1 Definition Amendments
Section 1.1 of the MAPA is hereby amended as follows:
(a) The following definition of "Mixed Option" is added:
""MIXED OPTION" has the meaning ascribed to it in the preamble of
the Third Amending Agreement."
(b) The definition of "Purchase Warrant Issue Date" is hereby
amended and replaced by the following definition:
""PURCHASE WARRANT ISSUE DATE" means the date on which the Issuer
shall issue the Purchase Warrants, which date shall be the earlier
of (i) the second Business Day after the Qualifying Date and (ii)
the Qualifying Deadline, provided that each Purchaser may demand a
different Purchase Warrant Issue Date in respect of its Purchase
Warrants in accordance with
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Section 4.1(c), provided further that for CDPQ and Telesystem, the
Purchase Warrant Issue Date shall not be prior to the Issuer having
taken up and paid for all Units validly tendered under the Units
Issuer Bid after the Units Issuer Bid Expiry Date.";
(c) The definition of "Qualifying Deadline" is hereby amended and
replaced by the following definition:
""QUALIFYING DEADLINe" means, with respect to each Qualifying
Province, 5:00 p.m. (Montreal time) on March 1, 2002.";
(d) The following definition of "Revised Purchase Warrants Numbers"
is added:
""REVISED PURCHASE WARRANTS NUMBERS" has the meaning ascribed to it
in Section 4.1(g)(a)."
(e) The following definition of "Revised Special Warrants Numbers"
is added:
""REVISED SPECIAL WARRANTS NUMBERS" has the meaning ascribed to it
in Section 3.5(a)."
(f) The following definition of "Third Amending Agreement" is
added":
""THIRD AMENDING AGREEMENT" means the third amending agreement to
the Master and Purchase Agreement dated as of February 5, 2002,
among the Issuer, JPMP (BHCA), JPMP Asia, UFI, CDPQ and
Telesystem.";
(g) The definition of "Units Issuer Bid" is deleted and replaced
with the following definition:
""UNITS ISSUER BID" means the issuer bid launched by the Issuer on
the Units Issuer Bid Launch Date to exchange Subordinate Voting
Shares for the outstanding Units, as amended in accordance with
terms substantially in the form described in the preamble to the
Third Amending Agreement or as otherwise amended from time to time
by mutual agreement of all Parties.";
(h) The definition of "Units Issuer Bid Expiry Date" is deleted and
replaced with the following definition:
""UNITS ISSUER BID EXPIRY DATE" means the date on which the Units
Issuer Bid expires, provided that such date shall not be later that
March 31, 2002."
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(i) The following definition of "Warrants" is added:
""WARRANTS" has the meaning ascribed to it in the preamble of the
Third Amending Agreement."
ARTICLE 3
AMENDMENTS TO FINANCING COMMITMENTS OF CDPQ AND
TELESYSTEM
3.1 Reduction of Telesystem and CDPQ's Commitments
Article 3 of the MAPA is hereby amended by adding the following Section:
"Section 3.5
(a) Notwithstanding Sections 3.1 and 3.2 and Schedule 3.1, the number of
Special Warrants required to be purchased by each of CDPQ and Telesystem
under the First Tranche and the Second Tranche shall be, respectively,
35,780,973 and 34,172,739 (the "REVISED SPECIAL WARRANTS NUMBERS"). For
information purposes only, the number of Special Warrants required to be
purchased by JPMP (BHCA) under the First Tranche and the Second Tranche
pursuant to Sections 3.1, 3.2 and Schedule 3.1 shall be 39,539,055.
(b) The Revised Special Warrants Numbers required to be purchased by CDPQ and
Telesystem shall be reduced on the basis of one Special Warrant for each
Subordinate Voting Share subscribed for by holders of Units, including
CDPQ and Telesystem, under the Mixed Option of the Units Issuer Bid as
follows and in the following order:
(i) the Subordinate Voting Shares subscribed for by each of CDPQ and
Telesystem, respectively, under the Mixed Option of the Units Issuer Bid
shall reduce the number of Special Warrants required to be purchased by
CDPQ and Telesystem, respectively, under the Revised Special Warrants
Numbers; and
(ii) the Subordinate Voting Shares subscribed for by all other holders of
Units under the Mixed Option of the Units Issuer Bid shall reduce the
number of Special Warrants required to be purchased by CDPQ and Telesystem
under the Revised Special Warrants Numbers, such reduction to be allocated
among CDPQ and Telesystem in the same proportions as their remaining
commitments to purchase Special Warrants under the Revised Special
Warrants Numbers.
(c) As provided in Section 10.4, CDPQ and Telesystem have tendered their Units
under the Units Issuer Bid and, once the Unit Issuer Bid has been amended
to
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reflect the existence of the Mixed Option, shall be deemed to have
tendered under the Mixed Option and shall therefore subscribe for the
maximum number of Subordinate Voting Shares that each is permitted to
subscribe for pursuant to the first round of subscription under the Mixed
Option of the Units Issuer Bid. To the extent that all Subordinate Voting
Shares offered under the Mixed Option are not subscribed for by holders of
Units, CDPQ and Telesystem shall be required to subscribe for that number
of Subordinate Voting Shares not otherwise purchased by holders of Units
under the Mixed Option, to be allocated among them on a proportional basis
to the Revised Special Warrants Numbers, as such Revised Special Warrants
Numbers has been reduced by Section 3.5(b).
(d) CDPQ and the Issuer hereby agree that 995,024 of the Special Warrants
issued to CDPQ under the First Tranche and the Purchase Price of
$609,428.81 for such Special Warrants paid by CDPQ to the Issuer shall be
put and kept in escrow until such time as the Issuer shall have taken up
and paid for all Units validly tendered under the Units Issuer Bid after
the Units Issuer Bid Expiry Date, at which time the number of Special
Warrants entitled to be subscribed by CDPQ pursuant to Sections 3.1, 3.2
and 3.5 shall be known and the Special Warrants and the funds in escrow
shall be released to the Issuer and CDPQ, as the case may be."
3.2 Reduction of Telesystem and CDPQ's Purchase Warrants Grants
Article 4 of the MAPA is amended by adding the following Section:
"Section 4.1(g)
(a) Notwithstanding Section 4.1(b) and Schedule D of the Second Amending
Agreement, the number of Purchase Warrants to be granted to each of CDPQ
and Telesystem under MAPA shall be, respectively, 4,359,560 and 4,163,613
(the "Revised Purchase Warrants Numbers"). For information purposes only,
the number of Purchase Warrants to be granted to JPMP (BHCA) pursuant to
Section 4.1(b) and Schedule D of the Second Amending Agreement shall be
4,817,446.
(b) The Revised Purchase Warrants Numbers to be granted to CDPQ and Telesystem
shall be reduced on the basis of one Purchase Warrant for each Warrant
granted to holders of Units, including CDPQ and Telesystem, under the
Mixed Option of the Units Issuer Bid as follows and in the following
order:
(i) the Warrants granted to each of CDPQ and Telesystem, respectively,
under the Mixed Option of the Units Issuer Bid shall reduce the number of
Purchase Warrants to be granted to CDPQ and Telesystem, respectively,
under the Revised Purchase Warrants Numbers; and
(ii) the Warrants granted to all other holders of Units under the Mixed
Option of the Units Issuer Bid shall reduce the number of Purchase
Warrants to be granted to CDPQ and Telesystem under the Revised Purchase
Warrants Numbers, such reduction to be allocated among CDPQ and Telesystem
in the same proportions as
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their remaining allocation of Purchase Warrants under the Revised Purchase
Warrants Numbers."
ARTICLE 4
OTHER MAPA AMENDMENTS
4.1 General Amendments
(a) Section 10.4 of the MAPA is hereby amended by adding at the end of the
paragraph, the following "plus a certain number of Subordinate Voting
Shares to be issued upon payment of the Canadian dollar equivalent of
US$0.6124765 per share at the time of tender of the Unit, plus one
Warrant.".
(b) Section 14.3 of the MAPA is hereby amended by adding, at the end of this
Section, the following: "Notwithstanding the foregoing, the Purchase Price
of the Special Warrants entitled to be subscribed for by CDPQ and
Telesystem pursuant to Sections 3.1 and 3.2 shall be kept in escrow until
such time as the Issuer shall have taken up and paid for all Units validly
tendered under the Units Issuer Bid after the Units Issuer Bid Expiry
Date, at which time the number of Special Warrants entitled to be
subscribed by CDPQ and Telesystem pursuant to Sections 3.1, 3.2 and 3.5
shall be known and the funds in escrow released to the Issuer, or as the
case may be, returned to CDPQ and/or Telesystem. For greater certainty, if
CDPQ or Telesystem elects to tender under the Mixed Option, it shall be
deemed to have paid the purchase price for the Subordinate Voting Shares
subscribed for under the Mixed Option out of the Purchase Price for the
Special Warrants paid by each of CDPQ or Telesystem and kept in escrow up
to the total amount of such Purchase Price.
ARTICLE 5
MISCELLANEOUS
5.1 Survival
The representations and warranties contained in this Agreement, if any, will
survive the completion of the transactions herein contemplated unless otherwise
noted herein and, notwithstanding any investigation made by or on behalf of the
Purchasers and JPMP Asia, will continue in full force and effect for the benefit
of the Purchasers and JPMP Asia, or the Issuer, as the case may be, unaffected
by any subsequent disposition of the Special Warrants or of the Underlying
Securities or any of them for a period of five (5)
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years. The covenants contained herein, if any, will survive the completion of
this transaction, unless otherwise noted herein.
5.2 Governing Law
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE PROVINCE OF QUEBEC, 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.
5.3 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.
5.4 Language
The Parties acknowledge and are satisfied that this Agreement be initially drawn
up in the English language. Notwithstanding the foregoing, the Issuer undertakes
to have this Agreement translated into the French language and to circulate such
translated version among the Purchasers and JPMP Asia forthwith following the
date hereof and in any event by no later than February 28, 2002, whereupon the
Purchasers and JPMP Asia shall have 15 days to comment thereon in writing to the
Company and all 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 Company and all other 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.
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IN WITNESS WHEREOF the parties have caused this Agreement to be executed by
their respective duly authorized officers.
TELESYSTEM INTERNATIONAL WIRELESS INC.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
X.X. XXXXXX PARTNERS (BHCA), L.P.
By: JPMP Master Fund Manager, L.P.,
its General Partner
By: JPMP Capital Corp.,
its General Partner
By:
--------------------------------
Name:
Title:
ASIA OPPORTUNITY FUND, L.P.
By: Asia Opportunity Company,
its General Partner
By:
--------------------------------
Name:
Title:
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CAIP CO-INVESTMENT FUND PARALLEL
FUND (I) C.V.
By: Asia Opportunity Company,
its General Partner
By:
--------------------------------
Name:
Title:
CAIP CO-INVESTMENT FUND PARALLEL
FUND (II) C.V.
By: Asia Opportunity Company,
its General Partner
By:
--------------------------------
Name:
Title:
X.X. XXXXXX ASIA INVESTMENT PARTNERS,
L.P.
By: X.X. Xxxxxx Asia Equity Partners,
L.P., its General Partner
By: JPMP Asia Equity Company,
a Managing General Partner
By:
--------------------------------
Name:
Title:
U.F. INVESTMENTS (BARBADOS) LTD.
By:
--------------------------------
Name:
Title:
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CAPITAL COMMUNICATIONS CDPQ INC.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
TELESYSTEM LTD.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
