1
Exhibit 2.4
[NOTARIAL DEED]
CLOSING MEMORANDUM
- TURQUOISE -
JUNE 29, 2001
--------------------------------------------------------------------------------
SALE AND PURCHASE OF 100% OF THE SHARES IN TELE.RING TELEKOM SERVICE
GmbH, 100% OF THE PARTNERSHIP INTEREST IN TELE.RING TELEKOM SERVICE
GmbH & CO KEG AND GRANTING OF A CALL-OPTION REGARDING THE SALE AND
PURCHASE OF 100% OF THE SHARES IN MANNESMANN 3G MOBILFUNK GmbH
--------------------------------------------------------------------------------
2
CLOSING MEMORANDUM
This closing memorandum describes certain documents delivered and
actions taken in connection with the sale and purchase of 100% of the shares in
tele.ring Telekom Service GmbH, a limited liability company organized under the
laws of Austria ("tele.ring GmbH"), 100% of the Partnership Interest in
tele.ring Telekom Service GmbH & Co KEG, a limited partnership organized under
the laws of Austria ("tele.ring KEG") and the granting of a Call-Option
regarding the sale and purchase of 100% of the shares in Mannesmann 3G Mobilfunk
GmbH, a limited liability company organized under the laws of Austria ("MM3G"),
pursuant to a certain Sale and Purchase Agreement dated May 4, 2001 by and among
Mannesmann Eurokom GmbH ("MEU"), EKOM Telecommunications Holding AG ("EKOM") and
EHG Einkaufs- und Handels GmbH, a limited liability company organized under the
laws of Austria ("EHG"), an indirect subsidiary of Western Wireless
International Corporation, a corporation organized under the laws of the State
of Delaware, U.S.A. ("WWIC") (the "Agreement"). Capitalized terms used herein
unless otherwise defined have the meanings as ascribed to such terms in the
Agreement. Except as otherwise indicated, references to Clauses and Schedules
are references to Clauses and Schedules of the Agreement.
The closing was held on June 29, 2001 at 6:15 p.m. Central European
Time, at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
Xxxxxxxxxxxxxxxxxx 0, 0000 Xxxxxx, Xxxxxxx, and at the offices of Mannesmann AG,
Dusseldorf, Germany (the "Closing").
* * * * *
I.
MATTERS COMPLETED PRIOR TO THE CLOSING
A. Corporate Authorizations
1. the supervisory board (Aufsichtsrat) of EKOM has approved the execution
and delivery of the Loan Agreement, subject to approval by the
shareholders meeting, by resolution dated May 5, 2001, which is attached
hereto as Annex 1;
2. the shareholders meeting (Hauptversammlung) of EKOM has approved the
execution and delivery of the Loan Agreement by resolution dated May 5,
2001, which is attached hereto as Annex 2;
-ii-
3
B. Schedule 13
Prior to the Closing, the following documents were delivered and actions were
taken in accordance with Schedule 13:
1. a Draft Balance Sheet of tele.ring GmbH and tele.ring KEG as defined in
Schedule 13 has been delivered to the Purchaser, which is attached
hereto as Annex 3;
2. agreement between Vendors and Purchaser on the amount of the
Consolidated Closing Net Working Capital has been reached subject to
adjustment based upon the Closing Balance Sheet as provided in Schedule
13 to the Agreement;
3. Vendors have paid EUR 69,558,533 to the tele.ring bank account, number:
00000000, with PSK AG through wire transfer, effective June 29, 2001.
II.
THE CLOSING
A. Persons Present at the Closing
The following persons were present at the Closing at the offices of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP Xxxxxxxxxxxxxxxxxx 0, 0000 Xxxxxx, Xxxxxxx, on
June 29, 2001:
For EHG: Xxxxxxx Xxxxxxx
For Purchaser's Counsel: Xxxxxxx Xxxxxxx (Xxxxxxxx, Xxxxxx,
Xxxxxx & Xxxxxxx LLP)
For special local counsel to WWI: Xxxxxx Xxxx,
Xxxxxxx Xxxxxxx
(Freshfields Bruckhaus Xxxxxxxx)
For MEU: Xxxxxx Xxxxxxx (attorney-in-fact)
For EKOM: Xxxxxx Xxxxxxx (attorney-in-fact)
For Vendors' Counsel: Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxxxx
-iii-
4
The following persons were present at the Closing at the offices of Mannesmann
AG, Dusseldorf, Germany, on June 29, 2001:
For tele.ring GmbH: Xxxxx Xxx(beta)ner
Xxxxx Xxxxx
For EKOM: Xxxxxx Xxxxxxx
For MEU: Xxxxxx Xxxxx
For special local counsel to WWIC: Xxxxxx Xxxx,
(Freshfields Bruckhaus Xxxxxxxx)
B. Closing Conditions
All of the following transactions were considered to have taken place
simultaneously and no delivery or payment was considered to have been made until
all transactions, including, without limitation, those described under the
headings "B. Closing Conditions" and "C. Matters Completed at the Closing" had
been completed.
1. The Austrian Cartel Court has given the confirmation described in Clause
3.1 in connection with Schedule 2 no. 1 as evidenced by resolution dated
June 27, 2001, attached hereto as Annex 4. Vendors and Purchaser agree
that Condition 1 is fulfilled.
2. Telekom-Control-Kommission has given its approval within the meaning of
Clause 3.1 in connection with Schedule 2 no. 2 as evidenced by Decree
no. K 39/98-158 dated June 18, 2001, attached hereto as Annex 5. Vendors
and Purchaser agree that Condition 2 is fulfilled.
3. Purchaser's Counsel declare that a filing under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act was and is not required and deliver two
letters to that effect, attached hereto as Annex 6 and Annex 7. Vendors,
relying on such declaration and such letters, and Purchaser agree that
Condition 3 is fulfilled.
4. Vendors and Purchaser hereby waive the fulfillment of Condition 4.
5. (a) Purchaser's Counsel have delivered, on behalf of WWIC, an original
letter in the form of Schedule 16 to the Agreement executed by WWIC and
attached hereto as Annex 8. (b) Purchaser has delivered a copy of the
audited financial statements of WWIC, Delaware, as of December 31, 2000,
which is attached hereto as Annex 9. Vendors and Purchaser agree
-iv-
5
that Condition 5 is fulfilled.
6. MEU has executed and delivered an original letter attached hereto as
Annex 10 and a side letter thereto attached hereto as Annex 11, which
documents were then signed by EHG. Vendors and Purchaser agree that the
Closing Condition agreed upon with separate agreement between MEU, EKOM
and EHG dated May 4, 2001, is fulfilled.
7. Vendors and Purchaser agree that all conditions to Closing have been
fulfilled or waived.
8. WWIC as requested by Vendors delivered to Vendors (a) a certified copy
of the WWIC certificate of incorporation (Annex 12), (b) an incumbency
certificate stating that Xxxx Xxxxxxx is the President of WWIC (Annex
13) and (c) a secretary's certificate stating that Xxxx Xxxxxxx is
authorized to sign certain documents on behalf of WWIC (Annex 14) and
(d) a certified copy of the by-laws of WWIC (Annex 15).
C. Matters Completed at the Closing
All of the following transactions were considered to have taken place
simultaneously and no delivery or payment was considered to have been made until
all transactions, including, without limitation, those described under the
heading "B. Closing Conditions" and "C. Matters Completed at the Closing" had
been completed.
At the Closing, the following documents were delivered and actions were taken
(all dated as of the Closing except as otherwise indicated):
(a) by Vendors:
1. Minutes of the partners' meeting of tele.ring KEG approving the transfer
of all of the partnership interests from MEU and EKOM to EHG, attached
hereto as Annex 16 have been delivered to Purchaser. Purchaser declares
this document to be satisfactory evidence of the approval of the
transactions contemplated in the Agreement by the partners' meeting of
tele.ring KEG.
2. Approval of the transfer of shares in tele.ring GmbH from MEU and EKOM
to EHG in the Agreement has been granted by the shareholders meeting of
tele.ring GmbH, a protocol of which is attached hereto as Annex 17.
-v-
6
3. Decree no. K 39/98-158 dated June 18, 2001, attached hereto as Annex 5,
has been delivered to Purchaser. Purchaser declares this document to be
satisfactory evidence of the approval of the transactions contemplated
in the Agreement by Telekom-Control-Kommission.
4. (a) Audited balance sheets of tele.ring GmbH and its legal predecessors
as of December 31, 1999 and 2000, attached hereto as Annex 18, and (b)
audited income statements of tele.ring GmbH and its legal predecessors
for the three-year period ended December 31, 2000, attached hereto as
Annex 19, have been delivered to Purchaser.
5. XXX has executed and delivered a side letter relating to certain
entitlements and claims of the managing directors of tele.ring GmbH
attached hereto as Annex 20.
(b) by Purchaser:
6. Payment of Purchase Price in cash; Vendors acknowledge receipt of
payment of the Purchase Price.
(c) by Vendors and Purchasers:
7. A duly executed and notarized application to the commercial register for
registration of Purchaser as individual successor of EKOM and MEU as
limited partners in tele.ring KEG, a copy of which is attached hereto as
Annex 21, has been signed.
8. A duly executed notarial deed evidencing (a) the transfer of a share
quota of 0.0127% of the stated share capital of tele.ring GmbH from EKOM
to EHG and (b) the transfer of a share quota of 0.0478% of the stated
share capital of tele.ring GmbH from MEU to EHG by reference to the
Agreement only, a copy of which is attached hereto as Annex 22, has been
signed.
9. A duly executed agreement evidencing (a) the transfer of a partnership
interest of ATS 632,000,000 in tele.ring KEG from MEU to EHG and (b) the
transfer of a partnership interest of ATS168,000,000 in tele.ring KEG
from EKOM to EHG by reference to the Agreement only, a copy of which is
attached hereto as Annex 22, has been signed.
10. A side letter relating to certain equipment, a copy of which is attached
hereto as Annex 23, has been signed by MEU, EKOM and EHG.
-vi-
7
III.
MATTERS COMPLETED AFTER THE CLOSING
1. The management of tele.ring GmbH has executed a notarized application to
the commercial register regarding the registration of Purchaser as new
shareholder in tele.ring GmbH, a copy of which is attached hereto as
Annex 24.
2. A duly executed and notarized application to the commercial register for
registration of Purchaser as individual successor of EKOM and MEU as
limited partners in tele.ring KEG, a copy of which is attached hereto as
Annex 21, has been signed by tele.ring GmbH.
3. The management of tele.ring GmbH has signed agreements evidencing (a)
the transfer of a partnership interest of ATS632,000,000 in tele.ring
KEG from MEU to EHG and (b) the transfer of a partnership interest of
ATS168,000,000 in tele.ring KEG from EKOM to EHG by reference to the
Agreement only, a copy of which is attached hereto as Annex 22, to
express its consent thereto.
4. A side letter relating to certain equipment has been signed by the
management of tele.ring GmbH, a copy of which is attached hereto as
Annex 23.
5. A side letter relating to certain entitlements and claims of the
managing directors of tele.ring GmbH has been signed by the management
of tele.ring GmbH attached hereto as Annex 20.
IV.
MISCELLANEOUS
1. This Closing Memorandum is governed by Austrian law.
2. In the event of any dispute, controversy or claim arising out of or in
connection with this Closing Memorandum (including any Annex hereto),
the Parties shall proceed as set forth in Clause 20 of the Agreement.
Pursuant to Clause 20.2 of said Agreement, such dispute shall be
referred to and finally settled by arbitration under and in accordance
with the Rules of Arbitration of the International Chamber of Commerce
by three arbitrators appointed in accordance with those rules. The place
of arbitration shall be Zurich. The arbitration proceedings shall be
conducted, and the award shall be rendered, in the English language. The
parties hereby waive any rights of application and appeal to any court
or tribunal of competent jurisdiction to the fullest extent permitted by
law in
-vii-
8
accordance with the provisions of Clause 20.3 of the Agreement.
-viii-
9
EHG Einkaufs- und Handels GmbH
/s/
----------------------------------
by: Xxxx Xxxxxxx
title: Managing Director
Mannesmann Eurokom GmbH
/s/
----------------------------------
by: Xxxxxx Xxxxxxx
title: attorney-in-fact
EKOM Telecommunications Holding AG
/s/
----------------------------------
by: Xxxxxx Xxxxxxx
title: attorney-in-fact
-ix-
