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EXHIBIT 10.49
DATED 26 NOVEMBER 1997
ELITE INTERNATIONAL LIMITED (1)
TECHNOCOM LIMITED (2)
PLD TELEKOM INC. (3)
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SHARE PURCHASE AGREEMENT
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THIS AGREEMENT is dated 26 November 1997
and made BETWEEN
(1) ELITE INTERNATIONAL LIMITED (a company incorporated under the Irish
Companies Xxx 0000 to 1990 with registered number 178152) whose
registered office is at Xxxxx Xxxxx, 00-00 Xxxxxxxxxx Xxxxxx, Xxxxxx
0, Xxxxxxx ("the Vendor");
(2) TECHNOCOM LIMITED (a company incorporated under the Irish Companies
Acts 1963 to 1990 with registered number 183622) whose registered
office is at 0 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx, and
whose particulars are as set forth in Schedule I hereto ("Technocom");
and
(3) PLD TELEKOM INC. (previously named "Petersburg Long Distance Inc.")
(a company incorporated in the State of Delaware, U.S.A.) whose
registered office is at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, X.X.X. ("the Purchaser").
WHEREAS:
(A) The Vendor owns Thirty-Nine (39) Ordinary Shares of Technocom which it
holds subject to the Subscription and Shareholders Agreement relating
to Technocom dated 28th December 1994, as heretofore amended or
supplemented (the "Shareholder Agreement"); and
(B) The Purchaser desires to acquire, and the Vendor desires to sell
Twenty-Nine (29) of such Ordinary Shares, subject to all of the terms
and conditions of this Agreement.
NOW IT IS HEREBY AGREED as follows:
1.1 INTERPRETATION
In this Agreement (including the Introduction and Schedules), unless
the context otherwise requires, the following words and expressions
have the meanings shown:
Board the board of directors of
Technocom
Business Day a day, other than a Saturday
or Sunday, on which banks in
each of the cities of Dublin,
New York and London generally
are open for normal banking
business
the Completion Date November 26, 1997
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a Member of the same Group means, as regards any
company, a company which is
for the time being a holding
company of that company or a
subsidiary of that company or
any such holding company
the Parties the parties to this Agreement
Plicom Plicom Limited
the Shares the twenty-nine (29)
Ordinary Shares of the
Company being purchased by
the Purchaser from the Vendor
hereunder
Warranties the warranties,
representations and
undertakings given in Clause
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1.2 All references to statutory provisions or enactments shall include
references to any amendment, modification or re-enactment of any such
provision or enactment, and to any regulation or order made under such
provision or enactment (in any case before the date of this
Agreement).
1.3 The term "holding company" shall have the meaning attributed to it in
sections 736 and 736A of the United Kingdom Companies Act 1985 (as
amended) and a company or other entity shall be a "subsidiary" for the
purposes of this Agreement if it falls within any of the meanings
attributed to a "subsidiary" in such sections or the meaning
attributed to the term "subsidiary undertaking" in section 258 of such
Act, and a company shall be an "associate" if it falls within the
meaning attributed to an "associated undertaking" in paragraph 20 of
Schedule 4A to such Act and the terms "subsidiaries", "associates" and
"holding companies" are to be construed accordingly.
1.4 References in this Agreement and the Schedules to the Parties, the
Introduction, Schedules and Clauses are references respectively to the
Parties, the Introduction and Schedules to and Clauses of this
Agreement.
1.5 Save where the context specifically requires otherwise, words
importing one gender shall be treated as importing any gender, words
importing individuals shall be treated as importing corporations and
vice versa, words importing the singular shall be treated as importing
the plural and vice versa, and words importing the whole shall be
treated as including a reference to any part thereof.
1.6 Clause and paragraph headings are inserted for ease of reference only
and shall not affect construction.
1.7 For the avoidance of doubt, any references in this Agreement to a
statutory
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and other regulatory provision in force in the United Kingdom or the
Republic of Ireland (as the case may be) shall, unless the context
otherwise requires, also include a reference to the equivalent or
analogous provision under Irish, English or other law applicable to
the relevant company.
2. SALE AND PURCHASE OF THE SHARES
The Vendor shall sell the Shares with effect from Completion and the
Purchaser (relying on the representations, warranties and undertakings
contained herein on the part of the Vendor and the fulfillment of all
conditions to such purchase contained herein) shall purchase the
Shares with any dividends, distributions and rights declared, created
or arising on or after the Completion Date, and free from all claims,
charges, liens, encumbrances, options, rights of pre-emption or
equities.
3. CONSIDERATION; TRANSFER RESTRICTIONS
3.1 In consideration of the sale of the Shares in accordance with the
terms of this Agreement, the Purchaser shall (i) pay to the Vendor
at Completion the sum of US$ 6,250,000 (Six Million Two Hundred Fifty
Thousand US dollars) in cash by telegraphic transfer to an account or
accounts nominated by the Vendor, and (ii) deliver to the Vendor at
Completion 1,316,240 shares of its Common Stock (the "Consideration
Shares").
3.2 Neither the Vendor nor any other party in whose name the Consideration
Shares may be issued shall be permitted to sell, transfer or otherwise
dispose of, or to pledge, any of the Consideration Shares for any
reason whatsoever prior to January 1, 2000, except that the Vendor or
such other party may pledge the Consideration Shares to financial
institutions as security for indebtedness, provided that the pledgee
enters into a written undertaking satisfactory to the Purchaser to
hold such Shares subject to the provisions of this Clause 3.2.
4. COMPLETION
4.1 Completion shall take place at the offices of Xxxxxxx Xxxxxxx at 0-00
Xxx Xxxxxx Xxxx, Xxxxxx XX0X 0XX, Xxxxxxx (or any other location
agreed upon by the Vendor and the Purchaser) on the Completion Date.
4.2 At Completion:
(a) the Vendor shall deliver (where appropriate as agent for
Technocom) to the Purchaser:
(i) a transfer in respect of the Shares duly executed by
the Vendor in favour of the Purchaser or as it may
direct; and
(ii) a certificate for the Shares and any other documents
which may be
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required to give good title to the Shares and to
enable the Purchaser to procure registration of the
same in its name or as it may direct;
(b) the Purchaser shall deliver (i) the sum of US$ 6,250,000 by
telegraphic transfer to the account(s) nominated by the
Vendor, and (ii) certificates for the Consideration Shares
in such denominations as the Vendor shall direct at least two
business days prior to the Completion Date (in default of
which direction a single certificate in the name of the Vendor
in the full amount of the Consideration Shares shall be
issued), which certificate(s) shall be appropriately legended
to reflect the terms of Clause 3.2 hereof, in addition to any
other legends required to comply with United States securities
laws;
(c) the Parties shall procure the passing of resolutions of the
Board resolving to register the share transfer referred to in
subclause (a)(i) above, subject only to due stamping; and
(d) the Vendor (and/or any other party or parties in whose name
the Consideration Shares may be issued) shall execute an
undertaking in form and substance satisfactory to the
Purchaser confirming that it is taking the Consideration
Shares for investment purposes only and not with a view to the
distribution thereof, and that it is bound by the terms of
Clause 3.2 hereof, and shall deliver to the Purchaser such
other evidence (including opinions of counsel) as the
Purchaser may reasonably request to confirm that the Vendor
and/or such other parties are bound by the provisions of such
Clause;
(e) the Parties shall (and shall procure that the other parties
thereto) execute an amendment to the Shareholder Agreement
which shall provide that:
(i) the parties appointed by PLD pursuant to clause 12.14
thereof shall be E. Xxxxx Xxxxxxxx and Xxxxxx X.
Xxxxx, c/o PLD Telekom Inc., 000 Xxxxx Xxxxxx, Xxx
Xxxx, XX 00000, X.X.X. in place of X. X. Xxxxxx and
X.X.X. Xxxxxxxx of SJBerwin & Co.;
(ii) copies of the items referred to in clause 12.15 shall
thereafter be sent to the persons named in subclause
(e) (i) above, and shall no longer be sent to Xx
Xxxxx Xxxxx or PLD's Solicitors;
(iii) Clause 5 and Schedule II thereto shall be deleted
therefrom in their entirety; and
(iv) the following words shall be added to the definition
of the term "the Option Agreements":
", each as may be amended from time to time
by the relevant parties thereto";
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(f) the Vendor and the Purchaser shall amend and restate the Put
and Call Option Agreement dated 28th December 1994 ("the Put
and Call Option Agreement") so that it shall read hereafter in
the form attached hereto as Schedule II ("the Amended Option
Agreement"); and
(g) the Vendor shall execute such other documents and take such
other actions as the Purchaser may reasonably request to carry
into effect the purpose and intent of this Agreement.
4.3 If for any reason the provisions of Clause 4.2 are not fully complied
with by reason of default on the part of the Vendor, the Purchaser
shall be entitled to elect, by giving written notice to the Vendor:
(a) to terminate this Agreement (other than Clause 7.2) in which
case the Purchaser shall not be obliged to purchase the
Shares, pay any of the Consideration or perform any of its
other obligations under Clause 4.2 (and the Vendor shall be
released from all further obligations hereunder other than
Clause 7.2); or
(b) to fix a new date for Completion within 28 days of the date
originally set for Completion; or
(c) to proceed to Completion so far as practicable, the Vendor then
being obliged to use its reasonable endeavours to perform or
procure the performance of any of the outstanding provisions of
Clause 4.2.
4.4 If for any reason the provisions of Clause 4.2 are not fully complied
with by reason of default on the part of the Purchaser or Technocom,
the Vendor shall be entitled to elect, by giving written notice to the
Purchaser:
(a) to terminate this Agreement (other than Clauses 7.2 and 7.3)
in which case the Vendor shall not be obliged to sell the
Shares and the Vendor shall not be obligated to perform any of
its other obligations under Clause 4.2 (and the Purchaser and
Technocom shall be released from all further obligations
hereunder other than Clauses 7.2 and 7.3); or
(b) to fix a new date for Completion within 28 days of the date
originally set for Completion; or
(c) to proceed to Completion as far as practicable, the Purchaser
then being obliged to use its reasonable endeavours to perform
or procure the performance of any of the outstanding
provisions of Clause 4.2.
4.5 The Purchaser shall, following Completion, promptly deliver to the
Revenue
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Commissioners of Ireland the share transfer referred to in Clause
4.2(a)(i) for assessment of stamp duty, and shall promptly pay the
duty thus assessed. Prior to the registration of such duly stamped
stock transfer form in the register of shareholders of Technocom, the
Vendor shall, in respect of the Shares, cooperate in any manner
required by the Purchaser for the convening, holding at short notice
and conduct of general meetings of Technocom, execute on a timely
basis all proxy forms, appointments of representatives, documents of
consent to short notice and such like that the Purchaser may
reasonably require and shall generally act in all respects as the
nominee and at the directions of the Purchaser in respect of the
Shares and all rights and interest attached thereto.
4.6 Upon the Completion Date the Vendor shall be deemed, without any
further action on its part being required, to have waived the
provisions of clause 7 of the Shareholder Agreement giving it the
right to receive notice of the proposed sale of, to be offered and/or
to purchase Ordinary Shares owned by Plicom so as to permit the sale
by Plicom to the Purchaser at such time or times as may be mutually
determined by such parties of the 59 Ordinary Shares of Technocom
owned by Plicom, free from any rights which it may have in respect
thereof under such clause 7.
5. WARRANTIES
5.1 The Vendor hereby covenants with the Purchaser that each and all of
subclauses (a) and (b) to this Clause is and are true and correct and
not misleading at the date of this Agreement and will at all times up
to and including Completion remain so:
(a) the Shares constitute twenty-nine out of a total of
thirty-nine Ordinary Shares of Technocom currently held by the
Vendor and are fully paid or credited as fully paid and the
Vendor is the legal and beneficial owner of and is entitled
(subject as stated in the Shareholder Agreement, the Put and
Call Option Agreement and the Articles of Association of
Technocom) to sell the Shares without the consent of any third
party; and
(b) other than as provided in or pursuant to this Agreement there
is no mortgage, charge, pledge, lien or other encumbrance or
interest on, over or affecting the Shares, no agreement to
create such mortgage, charge, pledge, lien or other
encumbrance or interest has been made and no claim has been
made that any person is entitled to any such mortgage, charge,
pledge, lien or other encumbrance or interest.
5.2 The aggregate amount of liabilities of the Vendor under or in
connection with this Agreement shall not exceed the total amount of
the Consideration that the Vendor has received under this Agreement.
5.3 Claims against the Vendor under or in connection with this Agreement
shall be wholly barred and unenforceable unless written details
thereof shall have been given
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to it by no later than a date three (3) months from the date hereof.
6. POSITION PENDING COMPLETION AND POST-COMPLETION OPERATION
6.1 The Vendor hereby covenants with and undertakes to the Purchaser that
it shall not at any time prior to Completion dispose or attempt to
dispose of any interest in the Shares or grant any option over, or
mortgage, charge or otherwise encumber or dispose of the Shares.
6.2 The Vendor hereby covenants with and undertakes to the Purchaser that
it will as soon as reasonably practicably notify to the Purchaser in
writing any matter or thing which may arise or become known to it
after the date hereof and prior to Completion which constitutes (or
would with the passage of time constitute) a breach of the Warranties
or a breach of any of the covenants or undertakings or obligations of
the Vendor under this Agreement.
6.3 If any material breach of the Warranties shall come to the notice of
either of the Vendor or the Purchaser before Completion, or if any act
of event shall occur which, had it occurred on or before the date
hereof, would have constituted a material breach of the Warranties,
then the Purchaser shall be at liberty without any liability
whatsoever to the other to elect not to complete the sale and purchase
of the Shares (and in such case all parties shall be released from
their obligations under this Agreement, other than under Clause 7.2).
6.4 The Vendor hereby declares for the purpose of the Financial Xxxxxxxxx
Xxx 0000 of the Republic of Ireland that it is not resident in any
jurisdiction to which financial transfers (within the meaning of the
said Act) are restricted by order of the Minister for Finance in
accordance with the provisions of that Act and does not hold the
Shares and will not receive any part of the Consideration hereunder as
nominee for any person so resident, and the Purchaser declares for the
purpose of the said Act that it is not so resident, it is not
acquiring the Shares as nominee for any persons so resident and it is
not to its knowledge controlled directly or indirectly by persons so
resident.
7. GENERAL PROVISIONS
7.1 The waiver by any party of any right arising under, or any breach,
default or omission by any other party of any of the terms of this
Agreement or any of the documents in the agreed form shall not take
effect unless in writing and shall not constitute a continuing waiver
of the right waived or apply to, or operate as a waiver of, any other
breach, default or omission and any forbearance in enforcing any right
shall not constitute a waiver.
7.2 No party shall divulge to any third party (other than their respective
professional advisers or insurers) the fact that this Agreement or any
of the documents in the agreed form has been entered into or any
information regarding its terms or any
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matters contemplated by this transaction or any information relating
to any other party or make any announcement relating to it without the
prior agreement (not to be unreasonably withheld or delayed) of the
other parties unless such announcement is required by a taxing
authority and/or a court of competent jurisdiction or by a recognised
stock exchange or by any other similar regulatory authority in which
event the other parties shall, so far as possible, be given prior
written notice of such intended announcement. Any announcement shall
in any event be made or issued only in a form approved by the
Purchaser and with the consent of the Vendor (not to be unreasonably
withheld or delayed). Nothing herein shall be deemed to prohibit any
disclosure of the terms of this Agreement which is required in
connection with the Purchaser's arranging financing for the
transactions contemplated by this Agreement.
7.3 The Purchaser shall pay its own legal, accountancy and other costs,
charges and expenses incurred in connection with this Agreement, and
shall pay (or reimburse the Vendor for) the Vendor's reasonable legal,
accountancy and other costs, charges and expenses incurred in
connection with this Agreement, including all prior negotiations
relating to the sale of the Shares.
7.4 This Agreement, together with any document expressly referred to in
any of its terms, contains the entire agreement between the parties
relating to the subject-matter covered. No oral explanation or oral
information given by any party shall alter the interpretation of this
Agreement.
7.5 The Vendor hereby undertakes with the Purchaser at the request of the
Purchaser and at the expense of the Purchaser to do or procure to be
done all such further acts and things and execute or procure to be
executed all such further deeds and documents as may be necessary or
desirable fully and effectively to vest in the Purchaser the legal and
beneficial ownership of the Shares and the benefits of this Agreement
and, pending such vesting, the Vendor shall hold such Shares and
benefits in trust for the Purchaser and shall receive all monies in
connection therewith as trustee of the Purchaser and shall account to
the Purchaser forthwith on receipt.
7.6 Any notice:
(a) must be in writing and must be given to a company which is a
party at its registered office or to such other address as may
have been notified to the other party; and
(b) will be effectively served:
(i) on the day of receipt, where any hand-delivered
letter or telefax message is received on a Business
Day before or during normal working hours; or
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(ii) on the following Business Day, where any
hand-delivered letter or telefax message is received
either on a Business Day after normal working hours
or on any other day; or
(iii) on the fifth Business Day following the day of
posting of any properly addressed letter sent by air
mail postage prepaid.
7.7 This Agreement and all documents supplemental thereto are governed by
and are to be construed in accordance with English law excluding the
English rules as to conflicts of law.
7.8 Each of the parties irrevocably submits to the non-exclusive
jurisdiction of the appropriate court of law in England in relation to
any matters, claims and disputes arising out of or in connection with
this Agreement, any of the documents in the agreed form or any
documents supplemental thereto and (subject as set out below) waives
any objection to legal proceedings being made in such courts whether
on the ground of venue or on the ground that such proceedings have
been brought in an inconvenient forum. These submissions shall not
limit the rights of the parties to bring any action in any other court
having or claiming jurisdiction (whether concurrently or not).
7.9 The Purchaser and Technocom hereby appoint Xxxxxx, Xxxxx & Xxxxxxx of
0 Xxxxxxx Xxxxxxx, Xxxx Xxxx, Xxxxxx XX0X 0XX, all communications to
be marked for the attention of Mr. T. J. Benz, and the Vendor hereby
appoints Messrs. Xxxxxxx Xxxxxxx of 0-00 Xxx Xxxxxx Xxxx, Xxxxxx XX0X
0XX, all communications to be marked for the attention of Mr. M.
Moncreiffe and Xx. X. Xxxxxx, in each case for service of process in
connection with legal proceedings in England and arising out of or in
connection with this Agreement. Copies of all notices pursuant to
Clause 7.6 shall also be sent to the Purchaser at 000 Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000, U.S.A., attention: E. Xxxxx Xxxxxxxx.
7.10 In the event that any legal action in respect of this Agreement is
started, the process by which it is started may be served on the
defendant or, if specified in this Agreement, any other person on its
behalf at the place at which and in the manner in which notices may be
given to that party.
7.11 Any provisions of this Agreement shall, so far as they are capable of
being performed or observed, continue in full force and effect
notwithstanding Completion except in respect of those matters already
performed.
7.12 This Agreement may be executed in several counterparts (whether
original or facsimile counterparts) and upon the execution of all such
counterparts by one or more parties, each counterpart shall be deemed
to be an original hereof.
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SCHEDULE I
PARTICULARS OF THE COMPANY
Name: Technocom Limited Number: 183622
Registered Office: 0 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx
Authorised share capital: IR pound sterling 1,000,000 and US$1,000 divided into 1,000,000 shares of IR pound
sterling 1 each and 1,000 preferred shares of US$1 each
Issued share capital: 199 Ordinary Shares and 1,000 preferred shares have been issued and are fully paid as
follows:
Ordinary Shares Preferred Shares
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Plicom Limited 59
PLD Telekom Inc. 101 1,000
Elite International
Limited 39
Directors: Xxxx Xxxxxx
Xxxxx Xxxxxxxx
Xxxxx X. X. Xxxx
Xxx Xxxxxx
Xxxx X. Xxxxxx
Secretary: Tatiana Saltanova
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SCHEDULE II
FORM OF AMENDED AND RESTATED PUT AND CALL OPTION AGREEMENT
DATED AS OF NOVEMBER __, 1997
PARTIES
1) PLD TELEKOM INC. (a company incorporated in the State of Delaware, U.S.A.)
whose registered office is at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, X.X.X. ("the Grantee"); and
2) ELITE INTERNATIONAL LIMITED (a company incorporated under the Irish
Companies Acts 1963 to 1990 with registered number 178152) whose registered
office is at Xxxxx Xxxxx, 00-00 Xxxxxxxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx ("the
Grantor", such term to include any permitted transferee).
RECITALS
The parties hereto are parties to a Put and Call Option Agreement dated 28
December 1994, and desire to amend and restate its provisions as hereinafter
set forth.
OPERATIVE PROVISIONS
1 DEFINITIONS
1.1 In this Agreement unless the context otherwise requires the following
expressions shall bear the meanings shown:
Business Day a day, other than a Saturday, on
which banks in each of the City of
London, Vienna, Toronto, Dublin and
Moscow generally are open for normal
banking business
the Call Options the rights granted to the Grantee
pursuant to Clause 2 to purchase or
procure the purchase of Option
Shares at the applicable Option
Price during the applicable Option
Period
the Company Technocom Limited, a private company
limited by shares incorporated under
the Companies Acts, 1963 to 1990 of
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Ireland whose registered number is
183622 and with its registered
office at Xxxxx Xxxxx, 00-00
Xxxxxxxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx
Completion the performance by the parties
hereto of their respective
obligations under Clause 4 or 5
the First Call Option the right granted to the Grantee
pursuant to subclause (A) of Clause
2.1 to acquire two (2) Ordinary
Shares from the Grantor
the First Option Period the period commencing on June 30,
1998 and ending on the earlier of:
(i) June 30, 2119 and (ii) the date
on which the First Put Option or the
First Call Option, as the case may
be, is exercised
the First Option Price the price for the First Option
Shares calculated in accordance with
Clause 9.1
the First Option Shares the two (2) Ordinary Shares which
are the subject of the First Put
Option and the First Call Option
the First Put Option the right granted to the Grantor
pursuant to subclause (A) of Clause
3.1 to require the Grantee to
purchase two (2) Ordinary Shares
the Grantee's Solicitors Xxxxxx, Xxxxx & Xxxxxxx, of 0
Xxxxxxx Xxxxxxx, Xxxxxx XX0X 0XX
the Grantor's Solicitors Xxxxxxx Xxxxxxx currently of 0-00
Xxx Xxxxxx Xxxx, Xxxxxx XX0X 0XX, or
such other firm of solicitors as the
Grantor may hereafter notify the
Grantee in writing
Option Period the First Option Period or the
Second Option Period, as applicable
Option Shares any of the ten (10) Ordinary Shares
which are the subject of the Put
Options and the Call Options
Ordinary Shares ordinary shares in the capital of
the Company
the Put Options the rights granted to the Grantor
pursuant to Clause 3 to require the
Grantee to purchase or procure the
purchase of Option Shares at the
applicable Option Price during the
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applicable Option Period
Reorganization in relation to the Company includes
every issue by way of capitalization
of profits or reserves and every
issue by way of rights and every
consolidation or sub-division or
reduction of capital or capital
dividend or other reconstruction or
adjustment relating to the equity
share capital (or any shares or
securities derived therefrom) and
any amalgamation or reconstruction
affecting the equity share capital
(or any shares, stocks or securities
derived therefrom)
the Second Call Option the right granted to the Grantee
pursuant to subclause (B) of Clause
2.1 to acquire eight (8) Ordinary
Shares from the Grantor
the Second Option Period the period commencing on June 30,
1999 and ending on the earlier of:
(i) June 30, 2119 and (ii) the date
on which the Second Put option or
the Second Call Option, as the case
may be, is exercised
the Second Option Price the price for the Second Option
Shares calculated in accordance with
Clause 9.2
the Second Option Shares the eight (8) Ordinary Shares which
are the subject of the First Put
Option and the First Call Option
the Second Put Option the right granted to the Grantor
pursuant to subclause (B) of Clause
3.1 to require the Grantee to
purchase eight (8) Ordinary Shares
1.2 Reference to clauses and the parties are respectively to clauses of and
the parties to this Agreement.
1.3 References to documents in the agreed form are to documents initialled
for the purpose of identification only by the Grantee's Solicitors and
the Grantor's Solicitors.
2 THE CALL OPTIONS
2.1 In consideration of the sum of pound sterling 1 (receipt of which the
Grantor acknowledges) the Grantor grants to the Grantee (A) the right
exercisable during the First Option Period to purchase two (2) Ordinary
Shares at the First Option Price, and (B) the right exercisable during the
Second Option Period to purchase eight (8) Ordinary Shares at the Second
Option Price.
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2.2 The First Call Option shall be exercisable at any time during the First
Option Period and the Second Call Option shall be exercisable at any time
during the Second Option Period, in either case by notice in writing of
exercise served on the Grantor.
2.3 All Option Shares shall be sold free from all liens, charges and
encumbrances and with all rights attached thereto at the date of such
exercise.
3 THE PUT OPTIONS
3.1 In consideration of the sum of pound sterling 1 (receipt of which the
Grantee acknowledges) the Grantee grants to the Grantor (A) the right
exercisable during the First Option Period to require the Grantee to
purchase two (2) Ordinary Shares at the First Option Price, and (B) the
right exercisable during the Second Option Period to require the Grantee
to purchase eight (8) Ordinary Shares at the Second Option Price.
3.2 The First Put Option shall be exercisable at any time during the First
Option Period and the Second Put Option shall be exercisable at any time
during the Second Option Period, in either case by notice in writing of
exercise served on the Grantee, and the documents listed in clause 4.1(b)
hereof duly executed but undated shall be delivered to the Grantee's
Solicitors, to be held to the order of the Grantor pending payment of the
applicable Option Price.
3.3 All Option Shares shall be sold free from all liens, charges and
encumbrances and with all rights attached thereto at the date of such
exercise.
4 COMPLETION OF THE CALL OPTION
4.1 Completion of the purchase and sale of any Option Shares pursuant to the
exercise of the First or Second Call Option shall take place at the
offices of the Grantee's Solicitors (or at such other place as the
parties shall mutually agree). In the case of the First Call Option,
Completion shall take place on such date as the Grantor and the Grantee
shall agree, but in all events not later than ten Business Days after the
Grantor shall have received the notice of exercise. In the case of the
Second Call Option, Completion shall take place on the date specified in
Clause 9.2(e). At either such Completion:
(a) the Grantee shall either pay or procure the payment
by telegraphic transfer to the Grantor (or as the
Grantor may direct) of the applicable Option Price
for the Option Shares being acquired (or, in respect
of the First Call Option, in the event that the
Grantor shall elect pursuant to Clause 9.1 to receive
the Additional Consideration Shares (as defined
therein) in lieu of cash, the Grantee shall deliver
to the Grantor the share certificates for the
Additional Consideration Shares (legended as required
pursuant to the United States securities laws) and
such other
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documents as shall be required to vest title to the
Additional Consideration Shares with the Grantor );
and
(b) the Grantor shall deliver to the Grantee:
(i) duly executed but undated stock
transfer forms in respect of the
Option Shares being purchased by the
Grantee together with the relative
share certificates or, to the extent
that the Grantor can so provide,
such other documents as shall be
required to vest title to the Option
Shares being purchased with the
Grantee or its designee, and, if it
is taking the Additional
Consideration Shares, an undertaking
satisfactory to the Grantee that it
is taking such Shares for investment
purposes only and not with a view to
the distribution thereof; and
(ii) to the extent that the Grantor can
so provide, such other deeds and
documents and opinions of Counsel as
may be necessary to transfer to the
Grantee or its designee or as it may
direct the unencumbered beneficial
ownership of the Option Shares being
purchased.
4.2 If the Grantor makes default in transferring any of the Option Shares as
aforesaid the Directors of the Company shall be entitled to receive and
give a good discharge for the Option Price payable for such Option Shares
on behalf of the Grantor (but shall not be bound to earn any interest
thereon) and the Grantor hereby irrevocably appoints such one of the
Directors of the Company as the Grantee shall nominate in writing as the
Grantor's attorney to execute on its behalf the transfer or transfers of
the Option Shares in favour of the Grantee (or as the Grantee may direct)
and such other documents as may be necessary to transfer title to such
Option Shares to the Grantee (or as the Grantee may direct) and hereby
authorizes the Directors of the Company to approve the registration of
such transfer or transfers or such other documents.
4.3 The Grantor shall (so far as it is able) procure the Grantee or its
designee will be registered as the holder of any Option Shares being
purchased.
4.4 Any payments by the Grantee under the First or Second Put Options or the
First or Second Call Options shall be made free and clear of all
withholdings and deductions, howsoever arising.
5 COMPLETION OF THE PUT OPTION
Completion of the transfer or sale of any Option Shares pursuant to the
exercise of the First or the Second Put Option shall take place at the
offices of the Grantee's Solicitors
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(or at such other place as the parties shall mutually agree). In the
case of the First Put Option, Completion shall take place on such date as
the Grantor and the Grantee shall agree, but in all events not later than
ten Business Days after the Grantee shall have received the notice of
exercise. In the case of the Second Put Option, Completion shall take
place on the date specified in Clause 9.2(e). At either such Completion
the Grantee shall take the actions specified in Clause 4.1(a), and upon
such actions having been taken, the Grantee's Solicitors shall release to
the Grantee the documents delivered to them to hold to the order of the
Grantor pursuant to the terms of Clause 3.2.
6 EFFECTS OF A REORGANIZATION
6.1 If any Reorganization shall take place after the date hereof all the
shares, stock and other securities (if any) which shall have become owned
by the Grantor or successors in title as a result of each such
Reorganization and which shall derive (whether directly or indirectly)
from the Option Shares shall be deemed to be subject to an exercise of
either the First or Second Call Options or the First or Second Put Option
(as the case may be) and shall be transferred or sold to the Grantee (or
as the Grantee may direct) in accordance with Clause 2 or 3 (as the case
may be).
6.2 References in this Agreement to the Option Shares shall be so construed
as to give full effect to this Clause 6.
7 PROHIBITION ON DISPOSAL
Subject to the terms of a Shareholder Agreement relating to the Company
entered into on 28 December 1994 and made between inter alia the Grantor
and the Grantee, as heretofore amended or supplemented ("the Shareholder
Agreement"), and notwithstanding the provisions of Clause 6, while either
the First Call Option or the Second Call Option remains exercisable the
Grantor shall not, without the prior written consent of the Grantee,
sell, transfer or otherwise dispose of (including without prejudice to
the generality of the foregoing accept an offer made to all holders for
the class or classes of securities to which the applicable Option Shares
belong) or mortgage, charge, pledge or otherwise encumber any of the
Option Shares or any interest therein subject to the applicable Call
Option..
8 GRANTOR'S WARRANTIES
8.1 The Grantor warrants to the Grantee that it is and will remain until the
exercise of either the First Call Option or the First Put Option (as the
case may be) or the expiry of the First Option Period (whichever is the
later), the beneficial owner of the First Option Shares, subject only to
such Options, that it is and will remain until the exercise of either the
Second Call Option or the Second Put Option (as the case may be) or the
expiration of the Second Option Period (whichever is the later), the
beneficial owner of the Second Option
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Shares, subject only to such Options, and that it has and will have full
power and authority to grant Options in respect of the same upon the terms
and conditions of this Agreement.
8.2 The Grantee warrants to the Grantor that it has and will have full power
and authority to execute and comply with the terms and conditions of this
Agreement.
9 THE OPTION PRICES
9.1 The First Option Price shall be US $1,000,000 or, if the Grantor so
elects in its notice of exercise of the First Option, that amount of
shares of common stock of the Grantee (the "Additional Consideration
Shares") which results from dividing the sum of $1,000,000 by the lesser
of: (i) $5.85 and (ii) the average closing price of the Grantee's common
stock over the ten trading days prior to the applicable Completion date.
In the event that the Grantor shall elect to take the Additional
Consideration Shares, the Grantor and/or any other party in whose name
the Additional Consideration Shares may be issued shall give an
undertaking satisfactory to the Grantee that such Shares are being taken
for investment purposes only and not with a view to the distribution
thereof, and all certificates for Additional Consideration Shares shall
be appropriately legended to comply with the United States securities
laws.
9.2 The Second Option Price shall be calculated and paid as follows:
(a) Within thirty (30) days after the exercise of the Second Call Option
or the Second Put Option, as the case may be, the Grantee shall
deliver to the Grantor its valuation of the entire issued ordinary
share capital of the Company (the "Valuation"). The Valuation, as
determined by the Grantee, shall be conclusive and binding upon the
Grantor for all purposes hereof and the Grantor's sole rights in
respect thereof shall be as specifically set forth hereinafter.
(b) If the Valuation shall be less than US $111,000,000, then the Second
Option Price shall be US $6,689,655. If the Valuation shall be more
than US $145,000,000, then the Second Option Price shall be US
$9,620,689. Under no circumstances shall the Second Option Price
exceed US $9,620,689.
(c) If the Valuation shall be between US $111,000,000 and US
$145,000,000, then the Second Option Price shall be the amount which
results from the following calculation:
US $6,689,655 plus US $2,931,034 multiplied by the Valuation less 111,000,000
------------------------------
divided by 34,000,000
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(d) Following the finalization of the Second Option Price as set forth
above, both parties shall be obligated to proceed to the Completion
of the purchase and sale of the Second Option Shares.
(e) Completion of the purchase and sale of the Second Option Shares
pursuant to the exercise of either the Second Call Option or the
Second Put Option shall take place in the manner provided in Clauses
4.1 and 5, as the case may be, on the ninetieth (90th) day following
the delivery of the Valuation to the Grantor (the "Due Date"), at
which time the actions specified in such Clauses shall be taken.
10 GENERAL
10.1 No amendment, change or addition hereto shall be effective or binding
on either party unless reduced to writing and executed by both
parties.
10.2 This Agreement and the rights hereunder may not be assigned in whole
or in part to any company or person, save that the Grantor may assign
its rights to a Member of the same Group (as that term is defined in
the Shareholder Agreement) as the Grantor.
10.3 The headings to clauses of this Agreement are for ease of reference
only and do not form part of this Agreement and are not in any way to
affect its construction.
10.4 Any notice to be given under this Agreement:
(a) must be in writing;
(b) may be given to the Grantor at its registered office (or such
other address as it may notify to the Grantee for such
purpose);
(c) may be given to the Grantee at its registered office (or such
other address as it or its assignee may notify to the Grantor
for such purpose); and
(d) will be effectively served:
(i) on the day of receipt, where any hand
delivered letter, telex or telefax message is
received on any Business Day before or during
normal working hours;
(ii) on the following Business Day, where any hand
delivered letter, telex or telefax message is
received either on an Business Day after
normal working hours or on any day which is
not a Business Day; or
(iii) on the second Business Day following the day
of posting, upon despatch from within the
United Kingdom of any posted letter by post
office inland first class mail postage
prepaid, or the fifth
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Business Day following the day of posting of
any letter sent by air mail postage prepaid,
and in proving such service it shall only be
necessary to prove that the same was stamped,
properly addressed and posted as aforesaid.
10.5 Copies of all notices served on the Grantee must also be served by
facsimile transmission sent to 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, U.S.A., marked for the attention of Mr. E. Xxxxx Xxxxxxxx and
Xx. Xxxxxx Xxxxx (0-000-000-0000) and copies of all notices served on
the Grantor must also be served by facsimile transmission sent to
Messrs. Xxxxxxx Xxxxxxx of 0-00 Xxx Xxxxxx Xxxx, Xxxxxx XX0X 0XX
marked for the attention of Mr. M. Moncreiffe and Xx. X. Xxxxxx
(00-00-000-0000).
10.6 This Agreement is governed by and is to be construed in accordance
with English Law, including its rules as to the conflict of laws.
10.7 Each of the parties irrevocably submits to the non-exclusive
jurisdiction of the appropriate court of law in England in relation to any
matters arising out of or in connection with this Agreement and waives any
objection to legal proceedings being made in such courts whether on the
ground of venue or on the ground that such proceedings have been brought
in an inconvenient forum. These submissions shall not limit the rights
of the parties to bring any action in any other court having or claiming
jurisdiction (whether concurrently or not), provided that no proceedings
shall be undertaken by either party in any federal or state court in the
United States of America.
10.8 The Grantee hereby appoints Messrs. Xxxxxx, Xxxxx & Bockius, of 0
Xxxxxxx Xxxxxxx, Xxxxxx XX0X 0XX all communications to be marked for the
attention of Xx. Xxxxxx X. Benz and the Grantor hereby appoints Messrs.
Xxxxxxx Xxxxxxx of 0-00 Xxx Xxxxxx Xxxx, Xxxxxx XX0X 0XX all
communications to be marked for the attention of Mr. M. Moncreiffe and
Xx. X. Xxxxxx in each case for service of process in connection with
legal proceedings in England and arising out of or in connection with
this Agreement.
10.9 In the event that any legal action in respect of this Agreement is
started, the process by which it is started may be served on the
defendant or, if specified in this Agreement, any other person on its
behalf at the place at which and in the manner in which notices may be
given to that party.
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ATTESTATIONS
Executed as a Deed by )
PLD TELEKOM INC. )
acting by: )
Director
Director/Secretary
Given under the Common Seal of )
ELITE INTERNATIONAL LIMITED )
acting by: )
Director
Director/Secretary
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ATTESTATIONS
Signed by ) s/s XXXXX XXXXXXXX
for and on behalf of )
ELITE INTERNATIONAL ) s/s XXXXXXXX X. XXXX
LIMITED )
in the presence of: )
Signed by ) s/s XXXXX X.X. XXXX
for and on behalf of )
TECHNOCOM LIMITED ) s/s XXXXXXXX X. XXXX
in the presence of: )
Signed by ) s/s XXXXX X.X. XXXX
for and on behalf of )
PLD TELEKOM INC. ) s/s XXXXXXXX X. XXXX
in the presence of: )
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