EXECUTION COPY
DATED JULY 23, 2004
(1) DERASO HOLDINGS B.V.
(2) DEVAYNES HOLDINGS LIMITED
(3) XXXXX ENTERPRISES LIMITED
(4) EMPORIKI VENTURE CAPITAL EMERGING MARKETS LIMITED
(5) SHAREHOLDERS OF DERASO HOLDINGS LIMITED LISTED IN SCHEDULE 4, PART C
(6) MOBIFON HOLDINGS B.V.
(7) TELESYSTEM INTERNATIONAL WIRELESS INC.
- AND -
(8) INDIVIDUAL PURCHASERS AS DEFINED IN RECITAL (B)
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SHARE TRANSFER AGREEMENT
RELATING TO THE TRANSFER OF SHARES IN
MOBIFON S.A.
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TABLE OF CONTENTS
PAGE
1. DEFINITIONS AND INTERPRETATION.....................................2
2. SHARE TRANSFER.....................................................9
3. CONDITIONS PRECEDENT..............................................10
4. COMPLETION........................................................11
5. WARRANTIES........................................................11
6. TERMINATION.......................................................12
7. INDEMNIFICATION...................................................13
8. COVENANTS.........................................................14
9. NOTICES...........................................................21
10. GENERAL PROVISIONS................................................24
11. GOVERNING LAW AND DISPUTE RESOLUTION..............................26
SHARE TRANSFER AGREEMENT
DATE: JULY 23, 2004
PARTIES:
(1) DERASO HOLDINGS LIMITED, a company organised and existing under the
laws of The Netherlands and having its registered office at c/o Private
Equity Services (Amsterdam) B.V., Xxxxxxxxxxx 00, 0000 XX, Xxxxxxxxx,
Xxx Xxxxxxxxxxx ("DERASO");
(2) DEVAYNES HOLDINGS B.V., a company organised and existing under the laws
of Cyprus and having its registered office at 0-0 Xxxx Xxxxxxxx XXX
Xxx., Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx 0000, Xxxxxx
("DEVAYNES");
(3) XXXXX ENTERPRISES LIMITED, a company organised and existing under the
laws of Cyprus and having its registered office at 0-0 Xxxx Xxxxxxxx
XXX Xxx., Xxxxxxx Xxxxxx, 0xx xxxxx, Xxxxxxx 0000, Xxxxxx ("Xxxxx");
(4) EMPORIKI VENTURE CAPITAL EMERGING MARKETS LIMITED, a company organised
and existing under the laws of Cyprus and having its registered office
at 0-0 Xxxx Xxxxxxxx XXX Xxx., Xxxxxxx Xxxxxx, 0xx xxxxx, Xxxxxxx 0000,
Xxxxxx ("EMPORIKI");
(5) DIRECT AND INDIRECT SHAREHOLDERS OF DERASO HOLDINGS LIMITED LISTED IN
SCHEDULE 4 PART C, a group of entities together, as of the date hereof,
holding all outstanding shares of Deraso (collectively referred to
herein as the "DERASO SHAREHOLDERS"), directly in the case of Kurisa
Holdings N.V. ("Kurisa"), indirectly through Kurisa in the case of
ROMGSM Holdings Limited ("ROMGSM") and indirectly through ROMGSM and
Kurisa in the case of the other Deraso Shareholders;
(6) MOBIFON HOLDINGS B.V., a company organised and existing under the laws
of The Netherlands and having its registered office at World Trade
Center, Xxxxxxxxxxxxxx 000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
("MOBIFON HOLDINGS");
(7) TELESYSTEM INTERNATIONAL WIRELESS INC., a company organised and
existing under the laws of Canada and having its registered office at
0000 Xxxx-Xxxxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxx, Xxxxxx, X0X 0X0
("TIW");
(8) XXXXX XXXXXXXX, an individual residing at 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxx, Xxxxxx, X0X 0X0 ("XXXXXXXX");
(9) XXXXX XXXXXXXX, an individual residing at 000, xxx Xxxxxx,
Xxxxx-Xxxxxxx, Xxxxxx, Xxxxxx, X0X 0X0 ("XXXXXXXX"); and
(10) XXXXXXXX XXXXXX, an individual residing at 0000, xxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxx, Xxxxxx, X0X 0X0 ("ZWARTS").
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RECITAL:
(A) Deraso, Devaynes, Xxxxx and Emporiki (collectively referred to herein
as the "SELLERS") are the beneficial owners of an aggregate of
29,388,478 common shares with a nominal value of ROL 3,750 each (the
"MOBIFON SHARES") in the share capital of MobiFon S.A., a joint stock
company incorporated under the laws of Romania and having its
headquarters at Str. Xxxxx 0, Xxxxxx 0, 00000, Xxxxxxxxx, Xxxxxxx
("MOBIFON").
(B) The Sellers wish to transfer all of the MobiFon Shares to MobiFon
Holdings, except for three (3) MobiFon Shares held by Deraso, of which
one shall be transferred to Xxxxxxxx, one shall be transferred to
Xxxxxxxx and one shall be transferred to Zwarts (collectively referred
to herein as the "INDIVIDUAL PURCHASERS"), and TIW wishes to pay for
the MobiFon Shares, on behalf of its subsidiary MobiFon Holdings and on
behalf of the Individual Purchasers, in cash and in common shares of
TIW's share capital, the whole subject to the ROFR Rights (as defined
below) and upon the terms and conditions set forth below (the "MOBIFON
SHARE TRANSFER").
(C) The parties acknowledge that the proposed transfer of the MobiFon
Shares under this Agreement is subject to rights of first refusal of
the other shareholders of MobiFon under the Contract of Association
(the "ROFR RIGHTS").
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions have the
following meanings:
Term Definition
"ACCOUNTS" TIW's audited accounts for the year ended 31
December 2003;
"ACCOUNTS DATE" 31 December 2003;
"AFFILIATE" in relation to a specified person, any
person that, directly or indirectly, through
one or more intermediaries, (a) owns or
Controls the specified person, (b) is owned
or Controlled by the specified person, or
(c) is under common ownership or Control
with the specified person, and in the case
of a specified person that is an individual,
will include such individual's natural
children, current spouse and/or natural
parents, including any trust established for
the benefit of such individual's natural
children, current spouse and/or natural
parents, in each case, where "own" means
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ownership of more than 50 per cent of the
voting interests or rights of the specified
person;
"AGREEMENT" this Share Transfer Agreement;
"AMFQ" Autorite des marches financiers du Quebec;
"BUSINESS DAY" shall be construed as a reference to a
day (other than a Saturday or Sunday) on
which banks and financial markets are open
in Romania, the Netherlands, London,
England, Cyprus, and the Province of Quebec,
Canada, for the transaction of ordinary
business;
"CASH CONSIDERATION" as defined in Clause 2.2.1;
"COMPLETION" the completion of the MobiFon Share Transfer
pursuant to Clause 4 of this Agreement,
which shall take place on the Completion
Date by the performance by the parties of
their respective obligations under Clause 4;
"COMPLETION DATE" as soon as practicable after the date (being
a date not later than the Termination Date)
on which the last of (a) the conditions
referred to in Schedule 1, Part A have been
fulfilled (or waived by the Sellers under
Clause 3.3) and (b) the conditions referred
to in Schedule 1, Part B have been fulfilled
(or waived by the Purchasers under Clause
3.4) and in any event, no later than 10.00
am on the fifth Business Day after such date
or such other time and date as the parties
may agree, provided that, in any event, the
Completion Date shall be no earlier than the
earliest date permitted by the Contract of
Association, unless all MobiFon shareholders
have, to the satisfaction of all parties,
unconditionally and irrevocably waived all
of their rights pursuant to the right of
first refusal procedure contained in the
Contract of Association in relation to the
MobiFon Share Transfer;
"CONCURRENT SECONDARY
OFFERING" as defined in Clause 8.6;
"CONDITIONS" the conditions precedent referred to in
Clauses 3.1 and 3.2;
"CONTRACT OF ASSOCIATION" the contract of association of MobiFon as
amended from time to time;
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"CONTROL" the possession, directly or indirectly, or
as trustee or executor, of the power to
direct or cause the direction of the general
management and policies of a person, whether
through ownership of voting securities, as
trustee or executor, by contract or credit
arrangements or otherwise and "Controlled"
shall be construed accordingly;
"ENCUMBRANCE" (a) a mortgage, charge, pledge, lien,
hypothecation, assignment or deposit by way
of security or other encumbrance of any kind
whatsoever securing any obligation of any
person, (b) any restriction, right of first
refusal or pre-emption, third party right or
interest, other encumbrance or type of
preferential arrangement (including
conditional sale, title transfer and
retention arrangements) having a similar
effect;
"EXCHANGE RATIO" as defined in Clause 2.2.2;
"EXIT DEEDS" the Amended and Restated Exit Agreement
dated May 3, 2001 by and among Telesystem
International Wireless Corporation N.V.,
ClearWave N.V., ROMGSM and the investors
named therein, and the Supplemental
Agreement executed on November 11, 2000 by
and among Telesystem International Wireless
Corporation N.V., ClearWave N.V., Devaynes,
Xxxxx and Emporiki;
"GAAP" generally accepted accounting principles;
"GOVERNMENTAL AUTHORITY" the government of any nation, state, city,
locality or other political subdivision
thereof, any entity exercising executive,
legislative, judicial, regulatory or
administrative functions and any corporation
or other entity owned or controlled, through
stock or capital ownership or otherwise, by
any of the foregoing including, but not
limited to, competition and licensing
authorities in Romania or elsewhere;
"INDEMNIFIED PARTY" as defined in Clause 7;
"INDEMNIFYING PARTY" as defined in Clause 7;
"INDIVIDUAL PURCHASERS" as defined in Recital (B);
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"LAW" in relation to any person, any law, statute,
ordinance, treaty, rule or regulation, and
any judgement, decision, award, order,
decree, administrative guidance, licence,
permit, authorisation, franchise or
determination of an arbitrator or a court or
other Governmental Authority, in each case
applicable to, or binding upon, such person
or any of its property or to which such
person or any of its property is subject or
pertaining to any or all of the transactions
contemplated or referred to herein;
"LOAN AGREEMENTS" the loan facility agreements entered into
between MobiFon and the Senior Lenders, all
dated 27 August 2002, and the working
capital facility agreements entered into
between MobiFon and ABN AMRO Bank (Romania)
S.A., dated 19 February 1999, and XxxxXxx
and Citibank, dated 25 March 1999;
"LOCK-UP PERIOD" as defined in Clause 8.5.1;
"MAJOR SHAREHOLDERS" Telesystem Ltd., U.F. Investments (Barbados)
Ltd., X.X. Xxxxxx Partners (BHCA), L.P.,
EEIF Melville B.V., Caisse de depot et
placement du Quebec, and their respective
Subsidiaries and Affiliates that own,
directly or indirectly, shares of TIW;
"MANAGEMENT ACCOUNTS" TIW's unaudited balance sheet as at March
31, 2004, together with its profit and loss
account and cash flow statement for the
three-month period ending March 31, 2004;
"MATERIAL ADVERSE CHANGE" with respect to a party, any event,
circumstance, condition, fact, effect or
other matter which has the effect of
preventing in a material and adverse way
such party from performing and complying
with any of its obligations under this
Agreement or making its Warranties
hereunder;
"MOBIFON" as defined in Recital (A);
"MOBIFON DIVIDEND" as defined in Clause 2.1;
"MOBIFON SHARES" as defined in Recital (A);
"MOBIFON SHARE TRANSFER" as defined in Recital (B);
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"NASD" as defined in Clause 8.6.3;
"NASDAQ" Nasdaq National Market or, in the event the
TIW Shares are phased down to the Nasdaq
SmallCap Market by reason of TIW not
satisfying the Nasdaq National Market's
minimum bid price continuing listing
requirement, "Nasdaq" shall refer to the
Nasdaq SmallCap Market;
"OTHER TIW EXCHANGE" as defined in Clause 8.6;
"PRE-CONTRACTUAL
STATEMENT" as defined in Clause 10.2.2;
"PROHIBITED SHARE
TRANSACTION" as defined in Clause 8.5.1;
"PURCHASERS" TIW and MobiFon Holdings;
"QUEBEC ACT" as defined in Clause 3.5;
"QUEBEC REGULATION" as defined in Clause 3.5;
"RECOGNIZED EXCHANGE" Nasdaq, New York Stock Exchange, American
Stock Exchange or London Stock Exchange;
"REGISTRATION EXPENSES" as defined in Clause 8.6.3;
"REGISTRATION RIGHTS
AGREEMENT" the Third Amended and Restated Registration
Rights Agreement dated as of May 6, 2004
between TIW and the Major Shareholders;
"RIGHTS OFFERING" as defined in Clause 8.2.3;
"ROFR RIGHTS" as defined in Recital (C);
"ROL" denotes the lawful currency from time to
time of Romania;
"SEC" United States Securities and Exchange
Commission;
"SECONDARY OFFERING" as defined in Clause 8.6;
"SECURITIES LAWS" collectively, the Securities Acts of the
Provinces of Quebec and Ontario and the
rules and regulations made thereunder,
together with applicable published policy
statements and orders of the securities
commission or similar authority in each of
the Provinces of Ontario and Quebec; and the
by-laws, rules and regulations of the TSX
and Nasdaq; and
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the 1934 Act and the 1933 Act and the rules
and regulations made thereunder, together
with applicable published interpretations
and releases of the SEC;
"SELLERS" as defined in Recital (A);
"SELLING EXPENSES" as defined in Clause 8.6.3;
"SENIOR LENDERS" European Bank for Reconstruction and
Development, Nordic Investment Bank and
Export Development Canada;
"SHARE TRANSFER DOCUMENTS" as defined in Clause 10.2.1;
"STATUTES" the statutes of MobiFon as amended from time
to time;
"SUBSIDIARY" with respect to any specified person, (i)
any corporation, association or other
business entity of which (a) more than 50%
of the voting power of the outstanding
voting stock is owned, directly or
indirectly, by such person and one or more
other Subsidiaries of such person or (b)
such person and one or more other
Subsidiaries of such person has the right to
appoint or remove a majority of the members
of its board of directors or, in the case of
an entity having a two-level board, its
supervisory board; and (ii) any partnership,
(a) the sole general partner or the managing
general partner of which is such person or a
Subsidiary of such person or (b) the only
general partners of which are that person or
one or more Subsidiaries of that person (or
any combination thereof);
"TERMINATION DATE" 45 days or, if MobiFon Holdings and at
least one other MobiFon Shareholder exercise
their ROFR Rights, 65 days after the date
hereof, or such later date as the parties
may agree;
"TAG-ALONG AGREEMENT" the agreement dated June 30, 1998
by and between Telesystem International
Wireless Corporation N.V. and ROMGSM;
"TIW SHARES" as defined in Clause 2.2.2;
"TIW SECURITIES" as defined in Clause 8.2.3;
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"TRANSFER NOTICE" as defined in Schedule 1, Part A;
"TSX" Toronto Stock Exchange;
"USD" denotes the lawful currency from time to
time of the United States of America;
"WAIVER" the waiver and consent of the Major
Shareholders regarding their rights under
the Registration Rights Agreement sufficient
to allow the Sellers to participate in
future Concurrent Secondary Offerings as and
to the extent set forth in Clause 8.6
hereof, in form and content substantially as
set forth in Schedule 6 hereto;
"WARRANTIES" the warranties set out in Schedules 3 and 4;
"1933 ACT" as defined in Clause 8.3; and
"1934 ACT" as defined in Clause 8.3.
1.2 Any reference in this Agreement to:
1.2.1 a "DAY" shall mean a calendar day;
1.2.2 a "PARTY" or "PARTIES" shall, unless the context otherwise
requires, be construed as a reference to a party or the parties
(as the case may be) to this Agreement; and
1.2.3 a "PERSON" shall be construed as a reference to any individual,
firm, corporation, partnership, trust, incorporated or
unincorporated association, joint venture, company, Governmental
Authority or other entity of any kind, and shall include any
successor(by merger or otherwise) of such entity.
1.3 STATUTES
Any references in this Agreement to statutory provisions shall be
construed as references to those provisions as modified, amended or
re-enacted from time to time.
1.4 HEADINGS
The Clause and Schedule headings are inserted for convenience of
reference only and shall not affect the construction of this Agreement.
1.5 CLAUSES AND SCHEDULES
Unless the context otherwise requires, references to Recitals, Clauses
and Schedules are references to recitals and clauses hereof and
schedules hereto, and references to this Agreement include the
Schedules.
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1.6 GENDER AND PLURALS
Any reference to the masculine, feminine or neuter gender respectively
includes the other genders and any reference to the singular includes
the plural (and vice versa).
1.7 TIME
Any reference to a time of day is a reference to London time.
1.8 REFERENCES
The words "HEREOF", "HEREIN", "HEREUNDER" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement.
1.9 CURRENCY
Unless otherwise specifically indicated, all dollar references in this
Agreement are in USD.
1.10 SEVERAL OBLIGATIONS
Except where expressly stated to the contrary, all obligations
contained in this Agreement are several and not joint or joint and
several.
2. SHARE TRANSFER
2.1 Subject to the ROFR Rights and the provisions of Clauses 2.2, 2.3
and 8.7, on and with effect from Completion, each Seller hereby
agrees to transfer to MobiFon Holdings (and in the case of three (3)
MobiFon Shares held by Xxxxxx, Xxxxxx agrees to transfer one to each
Individual Purchaser) the MobiFon Shares owned by them as set forth
in Part C of Schedule 4, together with all rights and title attached
thereto, except for the entitlement to receive their respective pro
rata share of the dividend declared on March 26, 2004 on the MobiFon
Shares (the "MOBIFON DIVIDEND") in the amount of approximately ROL
24,233.7259 per MobiFon Share (ROL 4,607,140,064,000 in the
aggregate for all common shares of MobiFon outstanding as of March
26, 2004), which shall remain the property of the Sellers and be
paid to them by XxxxXxx when distributed in accordance with the
terms of the resolution adopted on March 26, 2004 by XxxxXxx's
shareholders.
2.2 For the MobiFon Shares transferred by the Sellers to MobiFon
Holdings and the Individual Purchasers, TIW shall, on behalf of
MobiFon Holdings and the Individual Purchasers, pay to the Sellers:
2.2.1 with respect to 4,203,310 MobiFon Shares (or such lesser number
in the event ROFR Rights are exercised), allocated among the
Sellers as per Part C of Schedule 4, a cash consideration per
MobiFon Share (the "CASH CONSIDERATION") equal to
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the Exchange Ratio (as defined below) multiplied by US$7.74, for
a maximum aggregate cash consideration of US$36,632,855; and
2.2.2 with respect to 25,185,168 MobiFon Shares (or such lesser number
in the event ROFR Rights are exercised), allocated among the
Sellers as per Part C of Schedule 4, a consideration in kind in
the form of common shares of TIW's share capital (such shares to
be issued by TIW to the Sellers, the "TIW SHARES") equal to 1.126
TIW Shares for every MobiFon Share (the "EXCHANGE RATIO"), for a
maximum aggregate number of 28,358,499 TIW Shares.
2.3 If ROFR Rights are exercised as a consequence of which less than
29,388,478 MobiFon Shares are sold to MobiFon Holdings and the
Individual Purchasers, the allocation of the MobiFon Shares to be
purchased for cash and for TIW Shares shall be proportional to the
allocation of the MobiFon Shares currently existing between Clause
2.2.1 and Clause 2.2.2, and among the Sellers the allocation of the
MobiFon Shares to be purchased shall be proportional to the
allocation of the MobiFon Shares currently existing in Part C of
Schedule 4.
3. CONDITIONS PRECEDENT
3.1 The obligation of each Seller to transfer the MobiFon Shares to
MobiFon Holdings and the Individual Purchasers under Clause 2 is
conditional on the satisfaction of the Conditions set out in
Schedule 1, Part A on or before the Termination Date and the issue
by TIW on Completion of the TIW Shares and payment of the Cash
Consideration to such Seller under Clause 2.
3.2 The obligation of TIW to issue the TIW Shares and pay the Cash
Consideration to each Seller under Clause 2 (or, in respect of
Deraso, to Kurisa or ROMGSM if Xxxxxx and one of Xxxx xxx Xxxxxx or
Xxx Xxxxxxxx of Xxxxx & XxXxxxxx Amsterdam shall so instruct TIW in
writing prior to Completion) is conditional on the satisfaction by
such Seller of the Conditions set out in Schedule 1, Part B on or
before the Termination Date and the delivery by such Seller on
Completion of the MobiFon Shares to MobiFon Holdings and the
Individual Purchasers under Clause 2.
3.3 The satisfaction of any Conditions set out in Schedule 1, Part A may
be waived in respect of any Seller for the benefit of the Purchasers
(with or without conditions) by such Seller sending written notice
to that effect to the Purchasers and the other Sellers. The waiver
by a Seller shall not affect the obligations of the Purchasers
towards the other Sellers or the obligation of the other Sellers to
the Purchasers.
3.4 The satisfaction of any Conditions set out in Schedule 1, Part B may
be waived for the benefit of any Sellers (with or without
conditions) by the Purchasers by written notice to that effect to
the Sellers. The waiver by the Purchasers shall not affect the
obligations of the other Sellers towards the Purchasers.
3.5 The parties shall use commercially reasonable efforts to ensure that
the Conditions are satisfied as soon as possible after the date of
this Agreement, and in any event prior to the Termination Date. For
the avoidance of doubt, neither the Sellers nor the
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Purchasers shall have any obligation whatsoever to procure that the
shareholders in MobiFon either waive or not exercise their ROFR
Rights. In furtherance of the foregoing, if prior to Completion AMFQ
shall have objected to the information filed by TIW under Section 12
of the Securities Act (Quebec) (the "QUEBEC ACT") and Section 115 of
the regulation respecting securities (Quebec) (the "QUEBEC
REGULATION") in connection with the issuance of the TIW Shares, TIW
shall use commercially reasonable efforts to promptly file a
prospectus to qualify the issuance of the TIW Shares with AMFQ and
the Ontario Securities Commission and obtain a receipt therefor.
3.6 Should any party become aware of anything which will or may prevent
any of the Conditions from being satisfied it shall forthwith
disclose the same to the other parties.
4. COMPLETION
4.1 With respect to the delivery of the TIW Shares by TIW to the Sellers
(or, in respect of Xxxxxx, to Kurisa or ROMGSM if Xxxxxx and one of
Xxxx xxx Xxxxxx or Xxx Xxxxxxxx of Xxxxx & XxXxxxxx Amsterdam shall
so instruct TIW in writing prior to Completion), Completion shall
take place at the offices of TIW at 0000 Xxxx-Xxxxxxxx Xxxx. West,
38th floor, Montreal, Quebec, Canada and with respect to the other
actions to be taken to complete the MobiFon Share Transfer,
Completion shall take place at the offices of MobiFon at Str. Avrig
3, Sector 2, 74228, Bucharest, Romania on the Completion Date or at
such other place as shall be mutually agreed between the parties
when all (but not some only) of the events described in this Clause
4 shall occur.
4.2 At Completion, each Seller and Deraso Shareholder shall deliver to
TIW, or MobiFon Holdings, as the case may be, those documents and
take those actions as set out in Schedule 2, Part B and each Seller
shall transfer the MobiFon Shares to MobiFon Holdings and the
Individual Purchasers as per Clause 2.1, free from any Encumbrances
other than those created under the Loan Agreements, the Contract of
Association or the Statutes and, together with all rights now or
hereafter attaching or accruing thereto, including all rights to any
dividend or other distribution declared after the date of this
Agreement, except for the right to receive the MobiFon Dividend from
MobiFon, which shall remain the property of the Sellers and shall be
paid to the Sellers by MobiFon upon distribution.
4.3 At Completion, the Purchasers and the Individual Purchasers shall
deliver to each Seller those documents and take those actions as set
out in Schedule 2, Part A and TIW shall pay the Cash Consideration
by wire transfer in the amounts listed in Schedule 4 (in each case,
to the account specified by the applicable Seller to TIW in writing
prior to Completion) and shall issue the TIW Shares to each Seller
as per Clause 2.2 (or, in respect of Deraso, to Kurisa or ROMGSM if
Xxxxxx and one of Xxxx xxx Xxxxxx or Xxx Xxxxxxxx of Xxxxx &
XxXxxxxx Amsterdam shall so instruct TIW in writing prior to
Completion) as validly issued fully paid and non-assessable common
shares of TIW, free from any Encumbrances, together with all rights
now or hereafter attaching or
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accruing thereto, including all rights to any dividend or other
distribution declared after the Completion Date.
5. WARRANTIES
5.1 TIW makes the Warranties set out in Schedule 3, Part A to and for
the benefit of the Sellers and the Deraso Shareholders as of the
date hereof and as of the Completion Date. TIW and MobiFon Holdings,
jointly and severally, make the Warranties set out in Schedule 3,
Part B, to and for the benefit of the Sellers and the Deraso
Shareholders as of the date hereof and as of the Completion Date.
The Warranties made by TIW and MobiFon Holdings as of the Completion
Date shall be made subject to any further disclosures to the Sellers
and the Deraso Shareholders made by TIW or MobiFon Holdings in
writing on or before Completion in a form and substance satisfactory
to ROMGSM, acting reasonably. For the avoidance of doubt, any such
further disclosures made to the Sellers and the Deraso Shareholders
which are not in a form and substance satisfactory to ROMGSM, acting
reasonably, shall entitle any of the Sellers to elect not to proceed
to Completion, provided that this will not affect Completion with
respect to the other Sellers. For the purposes of repeating the
Warranties as of the Completion Date, an express or implied
reference in a Warranty to the "date of this Agreement" is to be
construed as a reference to the Completion Date.
5.2 Each Seller makes the Warranties set out in Schedule 4, Part A, in
respect of itself only, to and for the benefit of the Purchasers as
of the date hereof and as of the Completion Date. Each Deraso
Shareholder makes the Warranties set out in Schedule 4, Part B, in
respect of itself only and also makes the Warranties set out in
Schedule 4, Part A, in respect of Deraso only, to and for the
benefit of the Purchasers as of the date hereof and as of the
Completion Date. The Warranties made by the Sellers and Deraso
Shareholders as of the Completion Date shall be made subject to any
further disclosures made to the Purchasers on or before Completion
in a form and substance satisfactory to the Purchasers, acting
reasonably. For the avoidance of doubt, any such further disclosures
made by a particular Seller or Deraso Shareholder to the Purchasers
which are not in a form and substance satisfactory to the
Purchasers, acting reasonably, shall entitle the Purchasers to elect
not to proceed to Completion with respect to such particular Seller
or with respect to Deraso, in the case of a further disclosure made
by a Deraso Shareholder, provided that this will not affect
Completion with respect to the other Sellers. For the purposes of
repeating the Warranties as of the Completion Date, an express or
implied reference in a Warranty to the "date of this Agreement" is
to be construed as a reference to the Completion Date.
5.3 The parties are aware and acknowledge that they have entered into
this Agreement in reliance on the Warranties given by each relevant
party to the other which have induced it to enter into this
Agreement.
5.4 The rights and remedies of a party in respect of any breach of the
Warranties by the other party shall not be affected by any
information of which such non-breaching party has knowledge (however
acquired and whether actual, imputed or constructive) relating to
the other party or the transactions contemplated in this Agreement,
and shall
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survive Completion and shall not in any respect be extinguished or
affected in any way by Completion.
5.5 Each of the Warranties set out in each paragraph of Schedule 3 and
Schedule 4 is separate and independent and unless otherwise
expressly provided shall not be limited by reference to any other
Warranty or anything in this Agreement.
5.6 If in respect of, or in connection with, any breach of any of the
Warranties any sum payable by way of compensation is subject to
Taxes (which definition shall, for the purpose of this Clause 5.6
only, not include tax on net income), then a further amount shall be
paid so as to secure that the net amount received is equal to the
amount of compensation due to it in respect of such breach, less any
sums recovered under insurance policies held by the party not in
breach.
6. TERMINATION
6.1 If, on or before the Completion Date, a Seller or Deraso Shareholder
is in breach of a Warranty or another provision of this Agreement,
the effect of which is to give rise to a Material Adverse Change in
respect of such Seller or Deraso Shareholder, the Purchasers may by
written notice to the other parties elect to proceed to Completion
or terminate this Agreement with respect to such Seller, or with
respect to Deraso, in the case of a breach by a Deraso Shareholder,
provided that this will not affect the Completion with respect to
the other Sellers.
6.2 If, on or before the Completion Date, either Purchaser is in breach
of a Warranty or another provision of this Agreement, the effect of
which is to give rise to a Material Adverse Change in respect of
such Purchaser, such Seller may by written notice to the other
parties elect to proceed to Completion or terminate this Agreement
with respect to itself, provided that this will not affect the
Completion with respect to the other Sellers.
6.3 If Completion does not occur as to the MobiFon Share Transfer
between the Purchasers and a particular Seller on or before the
Termination Date this Agreement shall terminate with respect to the
MobiFon Share Transfer between the Purchasers and such particular
Seller.
6.4 If either the Purchasers or any Seller terminate this Agreement
pursuant to Clauses 6.1 or 6.2 or this Agreement terminates
automatically by virtue of Clause 6.3, each party's further rights
and obligations hereunder shall cease immediately on termination,
provided however, that (i) termination does not affect a party's
accrued rights and obligations at the date of termination and (ii)
Clauses 9 (Notices), 10.2 (Entire Agreement), and 11 (Governing Law
and Dispute Resolution) shall survive beyond such termination.
6.5 Except as set out in this Clause 6, no party may terminate or
rescind this Agreement, either before or after Completion.
7. INDEMNIFICATION
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7.1 Each of the (i) Purchasers jointly and severally as regards the
Sellers and the Deraso Shareholders, (ii) Sellers and Deraso
Shareholders severally as regards the Purchasers, and (iii) Deraso
Shareholders jointly and severally as regards the Purchasers as to
the covenants, warranties and representations of Deraso, covenant
and agree, for a period of twelve (12) months following the
Completion Date, to protect, indemnify and hold harmless the other
parties from and against any and all losses, claims, damages,
liabilities, costs or expense caused or incurred by reason of, or in
any way arising, directly or indirectly, out of any breach or
default of or under any representation, warranty, covenant or
agreement of such party in this Agreement.
7.2 In the event that any claim, action, suit or proceeding is brought
or instituted against a party in the context of Clause 7.1, such
party (an "INDEMNIFIED PARTY") shall promptly notify the person from
whom indemnification is sought (the "INDEMNIFYING PARTY") and the
Indemnifying Party shall promptly retain counsel who shall be
reasonably satisfactory to the Indemnified Party to represent the
Indemnified Party in such claim, action, suit or proceeding, and the
Indemnifying Party shall pay all reasonable fees and disbursements
of such counsel relating to such claim, action, suit or proceeding.
No Indemnifying Party shall, without the written consent of the
Indemnified Party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the Indemnified
Party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an
unconditional release of the Indemnified Party from all liability
arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any Indemnified Party.
7.3 The liability under this Agreement of each Seller and, in respect of
its representations, warranties and covenants, each Deraso
Shareholder shall not exceed the sum of (i) the cash consideration
actually received by such Seller or Deraso Shareholder, as
applicable, as a consequence of the MobiFon Share Transfer pursuant
to Clause 2.2.1, plus (ii) 80% of the aggregate market price, as of
Completion, of the TIW Shares actually received by such Seller or
Deraso Shareholder, as applicable, as a consequence of the MobiFon
Share Transfer pursuant to Clause 2.2.2. The aggregate liability
under this Agreement of each Deraso Shareholder in respect of its
and Deraso's representations, warranties and covenants and otherwise
shall not exceed the sum of (i) the cash consideration actually
received by Xxxxxx, Xxxxxx and ROMGSM, as the case may be, as a
consequence of the MobiFon Share Transfer pursuant to Clause 2.2.1,
plus (ii) 80% of the aggregate market price, as of Completion, of
the TIW Shares actually received by Deraso, Xxxxxx and XXXXXX as a
consequence of the MobiFon Share Transfer pursuant to Clause 2.2.2.
7.4 The aggregate liability of the Purchasers hereunder shall not exceed
the sum of (i) the aggregate cash consideration paid to the Sellers
pursuant to Clause 2.2.1, plus (ii) 80% of the aggregate market
price, as of Completion, of the TIW Shares issued to the Sellers
pursuant to Clause 2.2.2.
14
7.5 As used in Clause 7.3 and Clause 7.4, "market price" shall be
determined by reference to the volume weighted average price of the
shares of common stock in the share capital of TIW on Nasdaq or, if
such shares are not traded on Nasdaq, on the Recognized Exchange on
which such shares are traded, in each case, for the ten trading days
immediately preceding (but not including) the Completion Date.
8. COVENANTS
8.1 PRE-COMPLETION COVENANTS
8.1.1 Between the date hereof and the Completion Date, each party
hereto covenants and agrees that it shall promptly notify the
other parties of the occurrence, or non-occurrence of any event,
which would be likely to cause any Conditions to be satisfied by
it not to be satisfied.
8.1.2 Each Seller hereby covenants and agrees that it will send the
Transfer Notice to all MobiFon shareholders as soon as
practicable after the date hereof and in any event, no later than
the third Business Day thereafter.
8.2 BUSINESS OF TIW
TIW covenants and agrees:
8.2.1 to, between the date hereof and Completion, use its best efforts
to ensure that no dividends are declared or paid or common share
repurchases commenced or carried out or any other distributions
are declared or made by TIW;
8.2.2 to, between the date hereof and Completion, not amend its
governing instruments;
8.2.3 to, between the date hereof and Completion, conduct its business
in the ordinary and usual course and so as to maintain the same
as a going concern and, in particular, TIW covenants and agrees
not to issue, pursuant to a rights offering or similar
transactions (a "RIGHTS OFFERING") offered to any of its then
existing shareholders, any common shares of TIW or securities
convertible into common shares of TIW (the "TIW SECURITIES") at a
discount of more than 10% to the then market price of TIW's
common shares on the TSX or Nasdaq, whichever is the lower, at
the time the transaction is publicly announced, unless TIW has
offered each Seller the right to acquire that number of TIW
Securities needed by each Seller to maintain the same
proportionate equity interest in TIW it will have after
completion of the MobiFon Share Transfer, under the same terms
and conditions as the Rights Offering.
8.3 RULE 144 INFORMATION RIGHTS.
At any time when TIW is neither subject to Section 13 or 15(d) of the
United States Securities Exchange Act of 1934, as amended (the "1934
ACT"), nor exempt from the filing requirements of the 1934 Act pursuant
to Rule 12g3-2(b) thereunder, TIW agrees to furnish holders and
prospective purchasers of TIW Shares with the information required
15
by Rule 144A(d)(4) under the United States Securities Act of 1933, as
amended (the "1933 ACT").
8.4 TIW SHARES.
8.4.1 TIW hereby covenants and agrees that (i) it will use best efforts
to make the required filing with Nasdaq with respect to the
quotation of the TIW Shares, as soon as possible, and in any
event within ten (10) days following Completion, and (ii)
throughout the period ending on the eighteen-month anniversary of
Completion, it will use commercially reasonable efforts to (a)
maintain the listing of the class of shares of which the TIW
Shares form a part on a Recognized Exchange, (b) ensure that the
TIW Shares are listed or qualified and are freely tradable,
subject to any restrictions on trading imposed by or provided for
in this Agreement, on such Recognized Exchange, and (c) maintain
its status as a reporting company under the 1934 Act.
8.4.2 Each Seller and Xxxxxx Shareholder hereby covenants and agrees
that:
(a) if required by any applicable Securities Laws, it will assist
TIW or MobiFon Holdings, as the case may be, in filing such
reports, undertakings and other documents with respect to the
transfer of the MobiFon Shares and the issue of the TIW
Shares as may be required of TIW or MobiFon Holdings, as the
case may be, by any relevant securities commission or other
regulatory authority, it being understood that TIW will be
solely responsible for all expenses associated with such
filings;
(b) it will comply with its obligations under applicable
Securities Laws regarding disclosure of its acquisition of
the TIW Shares pursuant to this Agreement and the subsequent
distribution by Deraso, Kurisa or ROMGSM, as applicable, of
such TIW Shares to the Deraso Shareholders and, if required,
file such reports or other documents with any relevant
securities commission or other regulatory authority and issue
such press release disclosing such acquisition or
distribution; and
(c) it will not resell the TIW Shares in Canada or in the United
States except in accordance with the Securities Laws.
8.5 LOCK-UP.
8.5.1 (a) Each Seller as regards the TIW Shares acquired by it, and (b)
each Deraso Shareholder as regards the TIW Shares acquired by
Deraso and subsequently distributed or otherwise transferred by
Deraso, Kurisa or ROMGSM, as the case may be, to such Deraso
Shareholder, in each case covenants and agrees that, unless TIW
consents in writing, it will not, directly or indirectly, (1)
offer for sale, sell, pledge, or otherwise dispose of (or enter
into any transaction or device that is designed to, or could be
expected to, result in the disposition by any person at any time
in the future of) any common shares of TIW (including, without
limitation, common shares of TIW that may be deemed to be
beneficially owned by a Seller or
16
a Deraso Shareholder in accordance with the Securities Laws and
common shares of TIW that may be issued upon exercise of any
option or warrant or securities convertible or exchangeable for
common shares of TIW beneficially owned by a Seller or a Deraso
Shareholder) or (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any
of the economic benefits or risks of ownership of the common
shares of TIW, whether any such transaction described in clause
(1) or (2) above (a "PROHIBITED SHARE TRANSACTION") is to be
settled by delivery of common shares of TIW or other securities,
in cash or otherwise, for a period (the "LOCK-UP PERIOD") of:
(a) regarding 50% of the TIW Shares it acquires hereunder, twelve
(12) months from the Completion Date;
(b) regarding 16.7% of the TIW Shares it acquires hereunder, nine
(9) months from the Completion Date;
(c) regarding 16.7% of the TIW Shares it acquires hereunder, six
(6) months from the Completion Date; and
(d) regarding 16.6% of the TIW Shares it acquires hereunder,
three (3) months from the Completion Date.
8.5.2 For the avoidance of doubt, Clause 8.5.1 shall not apply to the
following transactions: (a) a sale, transfer, disposal or other
transaction of a nature described in Clause 8.5.1 in respect of
shares of TIW acquired by a Seller or a Deraso Shareholder other
than the TIW Shares, provided such shares are not acquired in the
context of a derivatives or monetization transaction regarding
the TIW Shares acquired hereunder, (b) the transfer by Xxxxxx,
Kurisa or ROMGSM of any of the TIW Shares to any of ROMGSM,
Kurisa or the Deraso Shareholders, (c) the transfer by Xxxxxxxx
of any of the TIW Shares acquired by it under this Agreement to
Baring Communications Equity (Emerging Europe) Ltd. and (d) the
transfer by Xxxxx of any of the TIW Shares acquired by it under
this Agreement to Xxxxxxxx Romania, L.P., in each case after the
relevant 40-day restricted period set forth in Clause 12 of
Schedule 4, Part A.
8.5.3 If a Seller or a Deraso Shareholder breaches its covenants under
Clause 8.5.1, the Lock-Up Period shall automatically be extended
to twelve (12) months from the Completion Date for all the TIW
Shares that such breaching party holds as a result of the
consummation of the MobiFon Share Transfer hereunder and such
breaching party shall no longer benefit from the rights set forth
under Clause 8.6 hereof; provided, however, that this shall not
prevent the non-breaching parties from seeking any other
available remedy against this breach or shall not limit in any
way the claim resulting from such breach, if any.
8.5.4 If TIW breaches its covenants set forth under Clause 8.6, in a
way that is materially adverse to any of the Sellers or Deraso
Shareholders, the covenants of such party set forth under Clause
8.5.1 shall cease to be in force; provided however that this
17
shall not prevent the non-breaching parties from seeking any
other available remedy against this breach or shall not limit in
any way the claim resulting from such breach, if any.
8.5.5 Notwithstanding Clause 8.5.1 but subject to Clause 8.5.3, the TIW
Shares acquired by the Sellers or Deraso Shareholders as a result
of the consummation of the MobiFon Share Transfer may be sold
pursuant to Clause 8.6, provided, however that such TIW Shares to
be sold pursuant to Clause 8.6 will be taken in the following
chronological order: (i) first, from the TIW Shares no longer
subject to the Lock-Up Period, (ii) next, from the next tranche
to be released from the Lock-Up Period immediately after the
Secondary Offering (as defined below), and (iii) thereafter, from
the subsequent tranches to be released from the Lock-Up Period.
8.5.6 Upon the release of any TIW Shares from the Lock-up Period, TIW
shall, upon the request of and without charge to any Seller or
Deraso Shareholder, (i) instruct the transfer agent to replace
any share certificate relating to such TIW Shares with a new
share certificate, which new share certificate shall not evidence
the transfer restrictions provided for in Clause 8.5.1, and (ii)
provide such evidence as the transfer agent shall require that
such TIW Shares are no longer subject to the Lock-Up Period and
otherwise generally co-operate with the Sellers and the Deraso
Shareholders in the issuance of new share certificates in
connection with any permitted transfer by them of the TIW Shares.
8.6 CONCURRENT REGISTRATION RIGHTS
Notwithstanding the terms of Clause 8.5.1, if at any time during the
period of eighteen (18) months after the Completion Date, TIW shall
determine to register under the 1933 Act or effect the qualification
under Canadian Securities Laws (as defined in the Registration Rights
Agreement), or effect a registration or qualification under the
applicable laws and listing rules with respect to any exchange on which
TIW Shares are listed (the "OTHER TIW EXCHANGE"), or so registers or
qualifies, any of its equity securities (or securities convertible or
exchangeable into equity securities) in a secondary offering (the
"SECONDARY OFFERING"), (a) TIW shall give written notice thereof to
each Seller and Deraso Shareholder as soon as practicable after TIW
determines to register or qualify securities under a Secondary Offering
and each such notice shall include a list of the jurisdictions in which
TIW intends to attempt to qualify such securities or the distribution
thereof, as applicable, under the 1933 Act, applicable blue sky or
other state securities laws or Canadian Securities Laws (as defined in
the Registration Rights Agreement) or the applicable laws and rules
with respect to the Other TIW Exchange, as applicable, and (b) each
Seller and Deraso Shareholder, as the case may be, shall be entitled to
have TIW register or qualify, concurrently with the Secondary Offering,
(the "CONCURRENT SECONDARY Offering"), such number of TIW Shares they
then hold that is proportional to the number of equity securities of
TIW to be included by the Major Shareholders in the Secondary Offering,
in light of the number of equity shares that each such Major
Shareholder then holds, and that is specified in a written request or
requests (which may specify all or any part of such TIW Shares, as the
case may be) made by each Seller and Deraso Shareholder, as the case
may be, within ten (10) days after the date
18
written notice is delivered by TIW, subject to the right of TIW to
delay, or not to proceed with, such Secondary Offering and Concurrent
Secondary Offering pursuant to the terms of the Registration Rights
Agreement, on the following terms and conditions:
8.6.1 The underwriter for the Secondary Offering and the Concurrent
Secondary Offering shall be chosen by TIW or as may be otherwise
provided for in the Registration Rights Agreement, and each
Seller and Deraso Shareholder that intends to include its TIW
Shares in such registration or qualification shall (together with
TIW and any other shareholders distributing their securities
through such underwriting) enter into an underwriting agreement
in customary form with the underwriter(s). Notwithstanding any
other provision of this Clause 8.6, if the managing
underwriter(s) advise(s) the participating shareholders and TIW
in writing that marketing factors require a limitation on the
number of securities to be underwritten, then the number of
securities to be included in such registrations or qualifications
under the Secondary Offering and the Concurrent Secondary
Offering shall be allotted pro rata among the participating
shareholders benefiting from registration rights, including,
without limitation, the Major Shareholders, the Sellers and the
Deraso Shareholders, as the case may be, based upon the number of
securities owned by such holders at the relevant time, provided
however that in the case of the Sellers and Deraso Shareholders,
the pro rata allocation shall only be based upon the number of
TIW Shares owned by such holders at the relevant time.
8.6.2 If a Seller or Deraso Shareholder disapproves of the terms of the
underwriting agreement, it may elect to withdraw its securities
by written notice to TIW and the underwriter(s), such notice to
be given a reasonable period of time prior to the finalization of
the underwriting agreement. Any securities excluded or withdrawn
from such underwriting agreement shall not be included in such
registration or qualification.
8.6.3 TIW shall pay all Registration Expenses, as hereinafter defined,
incurred by TIW, the Sellers and the Deraso Shareholders, as the
case may be, in connection with complying with their obligations
pursuant to this Agreement, provided, that such expenses shall
not include Selling Expenses, as hereinafter defined. Selling
Expenses shall be borne by the Sellers and Deraso Shareholders,
as the case may be, pro rata on the basis of the number of the
securities so registered and sold by all participants. For the
purposes of this Clause, (i) "REGISTRATION EXPENSES" shall mean
all expenses incident to TIW's, the Sellers' and the Deraso
Shareholders' performance of or compliance with their obligations
under this Agreement, including, without limitation, all SEC,
National Association of Securities Dealers ("NASD") and stock
exchange, Nasdaq, TSX, Canadian Securities Commission or other
applicable Canadian securities regulatory authority registration,
listing and filing fees and expenses, fees and expenses of
compliance with applicable state securities or "blue sky" laws or
other Securities Laws (including, without limitation, all fees
and disbursements of counsel for the underwriters in connection
with "blue sky" qualifications of common shares), printing
expenses, escrow fees, messenger and delivery expenses, fees and
disbursements of counsel for TIW and all independent certified
public accountants or chartered accountants (including
19
where applicable the expenses of any annual audit and "cold
comfort" letters required by or incident to such performance and
compliance), the disbursements of underwriters customarily paid
in connection with secondary registered public sales of
securities (including the fees and expenses of any "qualified
independent underwriter" required by the NASD), fees of one U.S.
and one Canadian counsel, as required, for all the Sellers and
Deraso Shareholders participating in the Secondary Offering
(which fees shall not exceed US$ 20,000 in the aggregate per
registration), fees and expenses of any special experts retained
by TIW in connection with such registration, and fees and
expenses of other persons retained by TIW (but not including any
Selling Expenses) and (ii) "SELLING EXPENSES" shall mean all
underwriting discounts and fees and selling commissions and stock
transfer taxes, if any, attributable to the sale of securities
shares by the selling shareholders.
8.6.4 None of the Sellers or the Deraso Shareholders shall be required
to make any representations or warranties in connection with any
registration or qualification other than representations and
warranties as to (i) its ownership of its TIW Shares to be sold
or transferred free and clear of all liens, claims and
encumbrances, (ii) its power and authority to effect such
transfer and (iii) such matters pertaining to compliance with
Securities Laws as may be reasonably requested. Each Seller and
each Deraso Shareholder shall be obligated to provide an
indemnity pursuant to any underwriting arrangements only with
respect to information provided by it, any indemnity under any
underwriting arrangements shall be several, not joint and
several, among the Sellers and Deraso Shareholders selling TIW
Shares and the liability of each such Seller and Deraso
Shareholder will be in proportion to, and such liability will be
limited to, the net amount received by each such Seller and
Deraso Shareholder from the sale of its TIW Shares pursuant to
such registration or qualification; provided, however, that TIW
shall not be obligated to provide to the underwriters any
indemnification regarding matters described in (i) through (iii)
above.
8.6.5 If any shareholder of TIW benefiting from registration rights
shall determine not to participate in a Secondary Offering or
Concurrent Secondary Offering, other participating shareholders
to the Secondary Offering and Concurrent Secondary Offering shall
have the right to include in such Secondary Offering and
Concurrent Secondary Offering additional securities in an amount
up to their respective pro rata share of the securities so
withdrawn.
8.6.6 The rights under this Clause 8.6 may be exercised, with respect
to an unlimited number of registrations or qualifications,
whether such registration or qualification is done under blue sky
laws or other compliance, or Canadian Securities Laws or other
compliance, provided however that such rights are exercised (i)
within the period prescribed in Clause 8.6 and (ii) concurrently
with, and pursuant to the same terms and conditions (other than
specified differences provided in this Agreement) as, a Secondary
Offering. Notwithstanding anything contained herein to the
contrary, the TIW Shares permitted to be included and so included
in any Concurrent Secondary Offering shall be covered by the
applicable agreement with
20
the underwriters with respect to the Secondary Offering by the
Major Shareholders on the same terms as the purchase,
underwriting or other arrangement with the Major Shareholders in
such agreement except as provided herein and customary for
transactions of the kind contemplated.
8.6.7 In the event that any Seller shall waive the Condition set forth
in Schedule 1, Part A, paragraph 6, the rights of such Seller
under this Clause 8.6 shall not apply to the extent that such
rights shall conflict with the rights of the Major Shareholders
under the Registration Rights Agreement.
8.7 ROFR EXERCISE.
8.7.1 In the event that (a) the ROFR Rights are exercised by any
shareholder of MobiFon or (b) all shareholders, other than
MobiFon Holdings, have not waived their ROFR Rights on the last
Business Day prior to the expiration of such ROFR Rights: (i)
MobiFon Holdings hereby covenants and agrees to exercise its ROFR
Rights, conditional on the exercise of ROFR Rights by any other
MobiFon shareholders, and purchase the maximum number of MobiFon
Shares it is allowed to purchase thereunder; (ii) TIW and MobiFon
Holdings hereby covenant and agree that the consideration for
each such MobiFon Share shall be fully and completely satisfied
by either the payment of the Cash Consideration or the issuance
of TIW Shares based on the Exchange Ratio, such type of
consideration to be allocated among all MobiFon Shares to be
purchased in the same proportion as the allocation of the shares
currently existing between Clause 2.2.1 and Clause 2.2.2 and
allocated among the Sellers in the same proportion as the
allocation of the shares currently existing in Part C of Schedule
4. Each Seller covenants and agrees to transfer the relevant
number of MobiFon Shares to MobiFon Holdings and accept in
payment the consideration described in (ii) above; provided
however that all terms and conditions of this Agreement apply
MUTATIS MUTANDIS to the transactions resulting from the exercise
of ROFR Rights by MobiFon Holdings.
8.7.2 Consideration for the transfer of MobiFon Shares to MobiFon
Holdings upon exercise of its ROFR Rights shall be as described
in 8.7.1(ii), regardless of whether the "Fair Market Value" of
the MobiFon Shares is determined pursuant to the Contract of
Association with respect to those MobiFon Shares purchased in
consideration for TIW Shares and regardless of whether such Fair
Market Value is higher or lower than the cash equivalent of the
consideration in kind described in 8.7.1(ii) above. The parties
understand and acknowledge that shareholders of MobiFon other
than MobiFon Holdings who exercise their ROFR Rights will be
entitled under the Contract of Association to purchase (i) their
pro rata number of MobiFon Shares subject to Clause 2.2.1 for the
Cash Consideration and (ii) their pro rata number of MobiFon
Shares subject to Clause 2.2.2 for either TIW Shares based on the
Exchange Ratio or, if it is impracticable for such shareholder to
deliver TIW Shares, for a cash consideration equal to the "Fair
Market Value" of such MobiFon Shares as determined under the
Contract of Association.
21
8.8 DISSOLUTION OF DERASO, XXXXXX AND XXXXXX
The Deraso Shareholders covenant and agree to give written notice to
the Purchasers prior to dissolving Deraso, ROMGSM and/or Kurisa, which
notice shall include relevant details regarding transfer of ownership
of the TIW Shares acquired by Deraso under this Agreement to the Deraso
Shareholders.
8.9 MOBIFON DIVIDEND
8.9.1 If, by 31 March 2005, the Sellers have not received payment in
full of the balance of their respective shares of the MobiFon
Dividend, TIW shall cause MobiFon, in its next distribution(s) of
dividends, to pay to the Sellers, in preference to MobiFon
Holdings rights to receive its share of such distribution(s) of
dividends (the "DIVIDEND PREFERENCE"), an amount equal to the
MobiFon Dividend to which the Sellers were entitled but which
remains unpaid as of that date (the "DIVIDEND SHORTFALL"); and
8.9.2 Upon TIW ceasing to indirectly own and control shares
representing more than 50% of the equity and voting rights of
MobiFon (whether before or after 31 March 2005), TIW shall cause
MobiFon to pay to the Sellers the Dividend Shortfall in
preference to any future distributions to MobiFon Holdings and
any Persons or entities that acquire TIW's indirect interest in
MobiFon.
9. NOTICES
9.1 Any notice, communication or other document required to be given or
served under this Agreement ("Notice") shall be in writing in
English duly signed by or on behalf of the party giving it and may
be delivered to any party by sending it by commercial courier or by
facsimile to such party (with a copy by e-mail at the sole
discretion of the party giving the Notice and provided that a
failure to send a copy by e-mail shall not otherwise invalidate such
Notice) at its address set forth below (or at its new address, as
notified to each of the other parties in writing in accordance with
this Clause):
9.1.1 in the case of Xxxxxx, to:
Xxxxxxxxxxx 00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax: x00 00 0000000
Attn: Xxxx xxx Xxxxxxx
22
With a copy to:
Xxxx, Gotshal & Xxxxxx
Xxx Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 00 0000 0000
Attn: Xxxxxxx X. Xxxxxx
9.1.2 in the case of Xxxxxxxx, to:
c/o Antis Triantafyllides & Sons
Capital Center
P.O. Box 21255
1505 Nicosia Cyprus
Fax: x000 00 000 000
Attn: Xxxxxx Xxxxxxxxxxxx
with a copy to:
Baring Communications Equity (Emerging Europe) Ltd.
Guernsey International Fund Managers
Trafalgar Court
Les Banques
St. Xxxxx Port
GY1 3QL Guernsey
Channel Islands
Fax: x00 0000 000 000
Attn: Xxxxxx Xxxxx
9.1.3 in the case of Xxxxx, to:
2-0 Xxxx Xxxxxxxx XXX Xxx.
Capital Center, 9th floor
Nicosia 1505
Cyprus
Fax:
Attn:
With a copy to:
Xxxx, Gotshal & Xxxxxx
Xxx Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Fax: x00 00 0000 0000
Attn: Xxxxxxx X. Xxxxxx
23
9.1.4 in the case of Emporiki, to:
2-4 Arch. Makarios III Ave.
Nicosia 1505
Cyprus
Fax: x00 000 000000
Attn: Xx. Xxxxxxx Xxxxxxxxxxxxxxx
with a copy to:
Emporiki Venture Capital S.A.
00 Xxxxxxxx Xxx.
Marousi 15125
Athens
Greece
Fax: x0000 000 00 000
Attn: Xxxxxx Xxxxxxxxxx
9.1.5 in the case of Deraso Shareholders, to:
Xxxxxxxxxxx 00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax: x00 00 0000000
Attn: Xxxx xxx Xxxxxxx
with a copy to:
Xxxx, Gotshal & Xxxxxx
Xxx Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attn: Xxxxxxx X. Xxxxxx
9.1.6 in the case of TIW, to:
Telesystem International Wireless Inc.
0000 Xxxx Xxxxxxxx Xxxxxx Xxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx
Canada H3B 4W5
Fax: x0 000 000 0000
Attn: General Counsel
24
9.1.7 in the case of MobiFon Holdings, to:
c/o Telesystem International Wireless Inc.
0000 Xxxx Xxxxxxxx Xxxxxx Xxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
Fax: x0 000 000 0000
Attn: General Counsel
9.2 Any Notice given by commercial courier shall be deemed to have been
delivered on the second Business Day following the date it is
dispatched and any Notice given by facsimile shall be deemed to have
been delivered on the date that the facsimile is dispatched and
confirmation of receipt (electronic or otherwise) is received and
provided that if deemed receipt occurs before 9.00 a.m. on a
Business Day the notice shall be deemed to have been received at
9.00 a.m. on that day, and if deemed receipt occurs after 5.00 p.m.
on a Business Day, or on a day which is not a Business Day, the
notice shall be deemed to have been received at 9.00 a.m. on the
next Business Day.
9.3 Any Notice given by a Seller to TIW will be deemed to be given to
both Purchasers and any Notice given to a Seller by TIW will be
deemed to be given by both Purchasers.
10. GENERAL PROVISIONS
10.1 SUCCESSORS AND ASSIGNS
No party shall be entitled to assign any of its rights and obligations
under this Agreement without the prior written consent of each of the
other parties, provided, however, that any party may, by written notice
to all parties, assign any of its rights and obligations under this
Agreement to one or more of its Affiliates and Deraso, or any successor
company pursuant to a merger of Deraso with another company, may by
written notice to TIW assign its rights and obligations to ROMGSM or
Kurisa. This Agreement shall be binding upon the parties and their
respective successors (whether as the result of a merger or otherwise)
and permitted assigns and no assignment by a party of its rights and
obligations under this Agreement to a permitted assignee shall relieve
the assigning party of its obligations under this Agreement.
10.2 ENTIRE AGREEMENT
10.2.1 This Agreement and the documents which are required by its terms
to be entered into by the parties or any of them or which are
referred to in this Agreement (together the "SHARE TRANSFER
DOCUMENTS"), together with the letter agreement dated February 2,
2004 that pertains to the treatment of confidential information,
constitute the entire agreement and understanding of the parties
in connection with the exchange of the shares and other matters
described in them and supersede any previous agreement between
the parties relating to the subject matter of this Agreement,
including, without limitation, the Term Sheet dated May 31, 2004.
10.2.2 Each party acknowledges and agrees that it has not entered into
the Share Transfer Documents or any of them in reliance on any
agreement, undertaking, representation, warranty, promise,
assurance or arrangement of any nature
25
whatsoever (whether or not in writing, whether express or
implied, and whether or not in draft form) made or given by any
person at any time prior to the execution of this Agreement in
connection with the transactions described in the Share Transfer
Documents (a "PRE-CONTRACTUAL STATEMENT"), which is not expressly
set out in the Share Transfer Documents (or any of them). Each
party irrevocably and unconditionally waives any claims, rights
or remedies which it may otherwise have in relation to a
Pre-Contractual Statement; provided always that this Clause 10.2
shall not exclude or limit any liability or any right which any
party may have in respect of a Pre-Contractual Statement made or
given fraudulently or dishonestly in circumstances where there
has been wilful concealment.
10.3 WAIVER
No delay or failure by any party to this Agreement to exercise any of
its powers, rights or remedies under this Agreement shall operate as a
waiver of them, nor shall any single or partial exercise of any such
powers, rights or remedies preclude any other or further exercise of
them. The remedies provided in this Agreement are cumulative and not
exclusive of any remedies provided by law. No waiver by a party of any
breach by any other party of any provision of this Agreement shall be
deemed to be a waiver of any subsequent breach of that or any other
provision of this Agreement.
10.4 TIME OF ESSENCE
Time is of the essence of this Agreement in respect of any date or
period mentioned in this Agreement and any date or period substituted
by written agreement between the parties or otherwise.
10.5 PARTNERSHIP
Nothing in this Agreement shall be deemed to constitute a partnership
between the parties (or any of them) nor constitute any party the agent
of any other party (unless otherwise expressly provided) or otherwise
entitle any party to have authority to bind any other party for any
purpose.
10.6 DISCLOSURE
The parties acknowledge that a letter agreement dated February 2, 2004
was signed, pertaining to the treatment of confidential information,
which provisions shall form an integral part hereof. The parties
further acknowledge that (i) the terms and conditions of this Agreement
are strictly confidential and agree to hold such terms and conditions
in strict confidence and not to disclose them to any person, except as
may be otherwise permitted by this Agreement or required by law
(including without limitation any order of a court of competent
jurisdiction) or by the rules of any recognized stock exchange, or
governmental or other regulatory body, other than their respective
shareholders, general and limited partners, employees and
representatives, it being understood that the disclosing party shall
have the obligation to inform any person to whom the terms and
conditions of this Agreement are disclosed of the confidential nature
thereof; and (ii) no party shall make any announcement with regard to
this Agreement and the transactions
26
contemplated hereby without obtaining the prior written consent of the
other parties hereto, which consent shall not be unreasonably withheld.
10.7 FURTHER ASSURANCES
Each party hereto shall do and perform or cause to be done and
performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments and
documents as any other party hereto may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement.
10.8 INVALIDITY OF PROVISION
The invalidity or unenforceability of any provision of this Agreement
in any jurisdiction shall not affect the validity or enforceability of
the remainder of this Agreement in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any
other jurisdiction. The parties shall endeavour in good faith
negotiations to modify any invalid, illegal or unenforceable provision
of this Agreement to the extent necessary to make such provision valid,
legal and enforceable. Each of the parties hereto agrees that it shall
not allege the invalidity, illegality or unenforceability of this
Agreement, or any one or more of the provisions contained herein.
10.9 COUNTERPARTS
This Agreement may be executed in any number of counterparts or
facsimile duplicates each of which shall be an original but such
counterparts or facsimile duplicates shall together constitute one and
the same agreement.
10.10 COSTS
Subject to Clause 8.6.3, the Sellers and the Purchasers shall each be
responsible for the expenses (including fees and expenses of legal
advisers, accountants and other professional advisers) incurred by
them, respectively, in connection with the negotiation and the
finalization of the transactions contemplated hereby, provided however
that the Purchasers shall be responsible for (i) all expenses relating
to the fulfilment of the conditions provided in Schedule 1, Part A,
paragraphs 2 and 3 and (ii) the expenses (including reasonable fees and
expenses of legal advisers, accountants and other professional
advisers) incurred by the Sellers directly related to the negotiation
and the finalization of the transactions contemplated hereby up to, but
not in excess of (pound)100,000 for all Sellers in aggregate.
Notwithstanding the foregoing, in the event that this Agreement is not
completed as a result of a Seller's failure to complete the
transactions contemplated hereby in breach of this Agreement, then the
Purchasers shall not be obligated to pay any expenses of such Seller as
provided in sub-Clause (ii) hereof.
11. GOVERNING LAW AND DISPUTE RESOLUTION
11.1 GOVERNING LAW
27
This Agreement shall be governed by, and construed in all respects in
accordance with, the laws of the State of New York, in the United
States of America, without regard to whether the choice of law rules
under New York law would result in the application of the law of
another jurisdiction.
11.2 ARBITRATION
Any dispute arising out of or in connection with this Agreement,
including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by arbitration
under the Rules of Arbitration of the International Chamber of Commerce
(the "ICC RULES"), which rules are deemed to be incorporated by
reference into this Clause.
11.2.1 The number of arbitrators shall be 3 (three), one of whom shall
be appointed by the Sellers, one of whom shall be appointed by
the Purchasers and the third shall be appointed by the two
arbitrators so chosen in accordance with the ICC Rules.
11.2.2 The seat, or legal place, of arbitration shall be London.
11.2.3 The language to be used in the arbitral proceedings shall be
English.
11.2.4 Notwithstanding the above, any interim or conservatory measures
requested by a party arising out of or relating to this Agreement
may, at the option of such party, be enforced through the
emergency procedures of the International Chamber of Commerce or
in any courts having jurisdiction. The parties agree that service
of any process relating to any such judicial proceeding sent to
the representatives of the parties designated in Clause 9 in
accordance with such Clause shall constitute valid service of
process for purposes of this Clause 11.2.4.
11.2.5 Each of the parties represents and warrants to the other parties
that this Agreement and their obligations hereunder are
commercial obligations, and confirm that they are not entitled to
claim immunity from legal proceedings in an action brought for
the enforcement of this Agreement.
28
IN WITNESS WHEREOF, the parties hereto, being duly authorised, intending to be
legally bound, have caused this Agreement to be duly executed and delivered as a
deed on the date first above written.
TELESYSTEM INTERNATIONAL WIRELESS INC.
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: President & CEO
MOBIFON HOLDINGS B.V.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director of Telesystem International
Wireless Corporation, N.V.
XXXXX XXXXXXXX
/s/ XXXXX XXXXXXXX
----------------------------------------
XXXXX XXXXXXXX
/s/ XXXXX XXXXXXXX
----------------------------------------
XXXXXXXX XXXXXX
/s/ XXXXXXXX XXXXXX
----------------------------------------
29
DERASO HOLDINGS B.V.
By: /s/ Illegible
------------------------------------
Name: Private Equity Services (Amsterdam) B.V.
Title: Managing Director
DEVAYNES HOLDINGS LIMITED
By: /s/ Xxxxxxx X.X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X.X. Xxxxxxx
Title: Director
XXXXX ENTERPRISES LIMITED
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Director
30
EMPORIKI VENTURE CAPITAL EMERGING MARKETS LIMITED
By:
------------------------------------
Name:
Title:
ADVENT CENTRAL AND EASTERN EUROPE II LIMITED PARTNERSHIP
ADVENT CENTRAL AND EASTERN EUROPE II-A LIMITED PARTNERSHIP
ADVENT PGGM GLOBAL LIMITED PARTNERSHIP
ADVENT CENTRAL AND EASTERN EUROPE II-L LIMITED PARTNERSHIP
ADVENT CENTRAL AND EASTERN EUROPE II-B LIMITED PARTNERSHIP
By: Advent International Limited Partnership, Limited Partner
By: Advent International Corporation, General Partner
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
ADVENT PARTNERS LIMITED PARTNERSHIP
By: Advent International Corporation, General Partner
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title Vice President and Treasurer
GE CAPITAL EQUITY INVESTMENTS LIMITED
By: /s/ XXXXXX X. XXXXXX, XX.
-----------------------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title:
LIMPART HOLDINGS LTD.
By: /s/ XXXXXXXX XXXXXX
-----------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Director
31
XXXXXXXX ROMANIA, L.P
By: Xxxxxxxx PHC, LLC, General Partner
By: Xxxxxxxx PHC, Corp., Manager
By: /s/ XXXX XXXXXX
------------------------------------
Name: Xxxx Xxxxxx
Title: President
X.X. XXXXXX PARTNERS (BHCA), L.P.
By: /s/Xxxxxxx X. Xxxxxx
---------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Partner
BARING COMMUNICATIONS EQUITY LIMITED
By: /s/ XXXXXXXXXXX X. XXXXXXXX
---------------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Director
BARING COMMUNICATIONS EQUITY (EMERGING EUROPE) LTD.
By: XXXXXXX X.X. XXXXXXX
---------------------------------------------------
Name: Xxxxxxx X.X. Xxxxxxx
Title: Director
APAX UK V1-A, LP
By: Apax Partners Ltd., its Manager
By: /s/ XXXXXXX XXXXXXX By: /s/ XXXXXX XXXXXXX
------------------------------- -------------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
Title: Director Title: Director
APAX UK VI-B, LP
By: Apax Partners Ltd., its Manager
By: /s/ XXXXXXX XXXXXXX By: /s/ XXXXXX XXXXXXX
------------------------------- -------------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
Title: Director Title: Director
32
APAX UK VI-C, LP
By: Apax Partners Ltd., its Manager
By: /s/ XXXXXXX XXXXXXX By: /s/ XXXXXX XXXXXXX
------------------------------- -------------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
Title: Director Title: Director
APAX UK VI-D, LP
By: Apax Partners Ltd., its Manager
By: /s/ XXXXXXX XXXXXXX By: /s/ XXXXXX XXXXXXX
------------------------------- -------------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
Title: Director Title: Director
APAX UK VI-E, LP
By: Apax Partners, Ltd., its Manager
By: /s/ XXXXXXX XXXXXXX By: /s/ XXXXXX XXXXXXX
------------------------------- -------------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
Title: Director Title: Director
APAX PP NOMINEES LIMITED A/C UK VI
By: /s/ XXXXX XXXXXXXX By: /s/ XXXXX XXXXXXXXX
------------------------------- -------------------------------
Name: Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxxx
Title: Director Title: Director
FOR AND ON BEHALF OF
ROMGSM HOLDINGS LIMITED
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
KURISA HOLDINGS N.V.
By: /s/ X. Xxxxxx-xx Xxxxx/X. Xxxxxxxxxx
----------------------------------------
Name: X. Xxxxxx-xx Xxxxx/X. Xxxxxxxxxx
Title: Attorney-in-Fact
33
