Exhibit
4.23
EXECUTION
COPY
Dated December
21, 2004
(1) TELESYSTEM
INTERNATIONAL WIRELESS INC.
(2) CLEARWAVE
N.V.
- and
-
(3) SELLERS
LISTED IN SCHEDULE 4, PART B
SHARE TRANSFER
AGREEMENT
relating to
the transfer of shares in
OSKAR HOLDINGS N.V.
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TABLE OF CONTENTS
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Page
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1.
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DEFINITIONS AND
INTERPRETATION
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2
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2.
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SHARE
TRANSFER
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10
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3.
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CONDITIONS
PRECEDENT
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11
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4.
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COMPLETION
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11
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5.
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WARRANTIES
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12
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6.
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TERMINATION
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13
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7.
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INDEMNIFICATION
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14
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8.
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COVENANTS
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15
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9.
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NOTICES
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23
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10.
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GENERAL
PROVISIONS
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24
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11.
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GOVERNING LAW
AND DISPUTE RESOLUTION
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27
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SHARE TRANSFER
AGREEMENT
DATE:
December 21, 2004 PARTIES:
1.
TELESYSTEM
INTERNATIONAL WIRELESS INC ., a company
organised and existing under the laws of Canada and having its
registered office at 1250 Rene-Levesque Street West, Montreal,
Québec, Canada, H3B 4W8 (" TIW
");
2.
CLEARWAVE
N.V. ,
a public
limited liability company organised and existing under the laws of
The Netherlands and having its registered office at World Trade
Center, Strawinskylaan 707, Amsterdam 1077 XX, The Netherlands
(" Clearwave
");
3.
SELLERS
, being the
Persons whose names appear in Part B of Schedule 4 (each, a
"Seller"
and
collectively, the "Sellers"
);
RECITAL:
A.
Each Seller is the
beneficial and legal owner of the number of Class B Shares with a
nominal value of €1.00 each (collectively, the "
Subject
Shares ") in the
share capital of Oskar Holdings set forth next to such Seller's
name in Part B of Schedule 4.
B.
The Sellers
wish to transfer all of the Subject Shares to Clearwave, and TIW
wishes to pay for the Subject Shares, on behalf of its subsidiary
Clearwave, in common shares of TIW's share capital, upon the terms
and conditions set forth below (the " Subject Share
Transfer ").
IT IS AGREED as
follows:
1.
DEFINITIONS AND
INTERPRETATION
1.1
In this
Agreement the following words and expressions have the following
meanings:
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Term
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Definition
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"
Accounts "
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TIW's audited
accounts for the year ended 31 December 2003;
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" Accounts
Date "
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31 December
2003;
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" Advent
Sellers "
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collectively, Advent Partners
Limited Partnership, Advent Private Equity Fund - Central Europe
Limited Partnership, ACEE II-A Co-Investment Fund Limited
Partnership, Advent Central & Eastern Europe II, Limited
Partnership, Advent Central & Eastern Europe II-A Limited
Partnership, Advent Central & Eastern Europe II-B Limited
Partnership, Advent Central & Eastern Europe II-L Limited
Partnership, Advent PGGM Global Limited Partnership, and The Czech
and Slovak Private Equity Fund L.P.;
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"
Affiliate "
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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,
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where "own" means ownership of
more than 50 per cent of the voting interests or rights of the
specified person;
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"
Agreement "
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this Share
Transfer Agreement;
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" AMFQ
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Autorité
des marchés financiers du Québec;
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" Articles
of Association "
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the articles of
association of Oskar Holdings as amended from time to
time;
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" Blackout
Period "
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as defined in
Schedule 6;
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"Business
Combination"
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as defined in
Clause (iii) of the definition of Change of Control;
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" Business
Day "
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shall be construed as a reference
to a day (other than a Saturday or Sunday) on which banks and
financial markets are open in London, England, the Netherlands, the
State of New York in the United States of America, and the Province
of Québec, Canada, for the transaction of ordinary
business;
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"Change in
the Board Majority"
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as defined in
Clause (ii) of the definition of Change of Control;
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"Change of
Control"
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shall be deemed
to have occurred in respect of a person if:
(i) a "person" or "group" within
the meaning of Sections 13(d) and 14(d)(2) of the 1934 Act (other
than the Existing Shareholders) becomes the ultimate "beneficial
owner" as defined in Rule 13d-3 under the 1934 Act of more than a
majority, on a fully diluted basis, of the total voting power of
the capital stock of such person of any class or kind ordinarily
having the power to vote for the election of directors of such
person; or
(ii) individuals who on the date
hereof constituted the board of directors of such person (together
with any new directors whose election by such board of directors or
whose nomination for election to such board of directors by such
person's shareholders was approved by a vote of at least two-thirds
of the members of such board of directors then in office who either
were members of such board of directors on such date or whose
election or nomination for election was
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previously so approved cease for
any reason to constitute a majority of the members of the board of
directors of such person then in office (a "Change in the Board
Majority" ), and a "person" or "group" within the meaning of
Sections 13(d) and 14(d)(2) of the 1934 Act (other than the
Existing Shareholders) has become, at any time during the 120 days
before the Change in Board Majority, the ultimate "beneficial
owner" (as defined in the Rule 13d-3 under the 1934 Act) of more
than 33 1/3% of the total voting power of the capital stock of such
person of any class or kind ordinarily having the power to vote for
the election of directors of such person on a fully diluted basis;
or
(iii) there is consummated either
(A) a merger, amalgamation, plan of arrangement, consolidation,
reorganization, share exchange or issuance of securities involving
such person (each a "Business Combination" ) unless,
immediately after such Business Combination, all or substantially
all of the individuals and entities who were the beneficial owners
of voting capital of such person immediately before the Business
Combination continue to beneficially own, directly or indirectly,
more than 66 2/3% of the then outstanding voting capital of the
resulting or acquiring entity in such Business Combination (which
shall include, without limitation, a corporation which as a result
of such transaction owns such person or substantially all of such
person's assets either directly or indirectly) in substantially the
same proportions as their respective ownership in the outstanding
voting capital immediately before such Business Combination; or (B)
the sale or other disposition of any of such person's assets for
gross proceeds equal to at least two-thirds of the then private
enterprise value of such person;
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"
Clearwave "
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as defined in
paragraph (2) under the heading "Parties";
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"
Completion "
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the completion of the Subject
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;
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" Completion
Date "
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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, New York time, on the tenth Business
Day after such date or such other time and date as the parties may
agree;
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" Concurrent
Secondary Offering "
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as defined in
Clause 8.7;
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"
Conditions "
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the conditions
precedent referred to in Clauses 3.1 and 3.2;
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"
Control "
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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;
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" Documented
Sale "
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as defined in
Schedule 6;
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" EMP
Sellers "
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collectively,
EEIF Czech N.V. and Emerging Europe Infrastructure Fund
C.V.;
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" EBRD
"
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European Bank
for Reconstruction and Development;
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"
Encumbrance "
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(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;
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" Exempt
Seller "
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each Seller that is not
identified as having been organized under the laws of the United
States, or one of the states, territories or possessions thereof,
under the heading "Laws of Incorporation" in Schedule 4, Part B
hereof, and,
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for the
avoidance of doubt, the EBRD shall be an Exempt Seller;
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"Existing
Shareholders"
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the parties to
the Registration Rights Agreement, other than TIW;
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" Exit
Agreement "
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the Amended and Restated Exit
Agreement dated May 3, 2001 among TIW, Clearwave and the Investors
identified therein;
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" GAAP
"
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generally
accepted accounting principles;
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"
Governmental Authority "
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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 the Czech Republic or
elsewhere;
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"
Indemnified Party "
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as defined in
Clause 7;
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"
Indemnifying Party "
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as defined in
Clause 7;
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" Law
"
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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;
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" Lock-Up
Period "
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as defined in
Clause 8.5.1;
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" Management
Accounts "
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TIW's unaudited balance sheet as
at September 30, 2004, together with its profit and loss account
and cash flow statement for the three- and nine-month periods
ending September 30, 2004;
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" Material
Adverse Change "
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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
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with any of its
obligations under this Agreement or making its Warranties
hereunder;
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" NASD
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as defined in
Clause 8.7.3;
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" Nasdaq
"
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Nasdaq National Market or, in the
event the common shares of TIW 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 ;
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" Oskar
Holdings "
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Oskar Holdings N.V., a public
limited liability company organised and existing under the laws of
The Netherlands and having its registered office at World Trade
Center, Strawinskylaan 707, Amsterdam 1077 XX, The
Netherlands;
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" Other TIW
Exchange "
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as defined in
Clause 8.7;
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" Prohibited
Share Transaction "
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as defined in
Clause 8.5.1;
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"
Purchasers "
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TIW and
Clearwave;
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"
Québec Act "
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as defined in
Clause 3.5;
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"
Québec Regulation "
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as defined in
Clause 3.5;
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" Recognized
Exchange "
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Nasdaq, New York Stock Exchange,
Toronto Stock Exchange, American Stock Exchange or London Stock
Exchange;
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"
Registrable Shares "
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as defined in
Schedule 6;
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"
Registration Expenses "
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as defined in
Clause 8.7.3;
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"
Registration Rights Agreement "
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the Amended and Restated
Registration Rights Agreement, dated as of 6 May 2004, between,
amongst others, Telesystem Ltd., 9111-1369 Quebec Inc., Caisse de
depot et placement du Quebec, certain funds advised by Emerging
Markets Partnership (Europe) Limited, certain affiliates of JP
Morgan Partners LLC, U.F. Investment (Barbados) Ltd. and TIW, and
certain affiliates;
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" Release
Date "
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as defined in
Clause 8.5.1;
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"Reorganization Event"
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as defined in
Clause 8.7;
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" Rights
Offering "
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as defined in
Clause 8.2.3;
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" SEC
"
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United States
Securities and Exchange Commission;
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" Secondary
Offering "
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as defined in
Clause 8.7;
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" Securities
Laws "
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collectively, the Securities Acts
of the Provinces of Québec 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
Québec; and the by-laws, rules and regulations of the TSX and
Nasdaq; the 1995 Act on the Supervision of the Securities Trade (
Wet toezicht effectenverkeer 1995 ) and the rules and
regulations made thereunder, together with applicable published
policy statements and orders from the Netherlands Authority for the
Financial Markets; and the 1934 Act and the 1933 Act and the rules
and regulations made thereunder, together with applicable published
interpretations and releases of the SEC;
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"Seller" and
"Sellers"
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as defined in
paragraph (3) under the heading "Parties";
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" Selling
Expenses "
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as defined in
Clause 8.7.3;
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" Share
Transfer Documents "
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as defined in
Clause 10.2.1;
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"
Shareholders Agreement "
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the Amended and Restated
Shareholders Agreement dated May 4, 2001 among Clearwave, TIW,
Oskar Holdings (f/k/a TIW Czech N.V.) and the Investors identified
therein;
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" Shelf
Registration Statement "
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as defined in
Schedule 6;
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" Subject
Shares "
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as defined in
Recital (A);
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" Subject
Share Transfer "
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as defined in
Recital (B);
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"
Subsidiary "
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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
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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);
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"
Termination Date "
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February 28,
2005;
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" TIW
"
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as defined in
paragraph (1) under the heading "Parties";
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" TIW
Shares "
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as defined in
Clause 2.2;
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" TIW
Securities "
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as defined in
Clause 8.2.3;
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"TSX"
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Toronto Stock
Exchange;
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" Unanimous
Shareholders Resolution "
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as defined in
Clause 8.9;
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" USD
"
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denotes the
lawful currency from time to time of the United States of
America;
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"Waiver"
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the waiver and consent of the
Existing 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 8.7 hereof, in form and content substantially as
set forth in Schedule 7 hereto;
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"
Warranties "
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the warranties
set out in Schedules 3 and 4;
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" 1933
Act "
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as defined in
Clause 8.3;
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" 1934
Act "
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as defined in
Clause 8.3; and
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" 2003
20-F "
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TIW's annual
report on Form 20-F for the fiscal year ended December 31,
2003.
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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.
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
Unless the context otherwise
requires, 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 provisions of Clause 2.2, on and with effect from
Completion, each Seller hereby agrees to transfer to Clearwave the
Subject Shares owned by it as set forth in Part B of Schedule 4,
together with all rights and title attached thereto.
2.2
For the Subject Shares transferred by the Sellers to Clearwave, TIW
shall, on behalf of Clearwave, pay to each Seller 18.488 common
shares of TIW for each Subject Share owned by such Seller (such
shares to be issued by TIW to the Sellers pursuant to this
Agreement, the " TIW Shares ").
3.
CONDITIONS PRECEDENT
3.1
Conditions Applicable
to Sellers.
The obligation of each Seller to
transfer the Subject Shares to Clearwave under Clause 2.1 is
conditional on the satisfaction of all Conditions set out in
Schedule 1, Part A on or before the Termination Date and the issue
by TIW on the Completion Date of the TIW Shares to such Seller
under Clause 2.
3.2
Conditions Applicable
to Purchasers.
The obligation of TIW to issue the
TIW Shares to a Seller under Clause 2.2 is conditional on the
satisfaction of the Conditions set out in Schedule 1, Part B on or
before the Termination Date and the delivery by such Seller on the
Completion Date of the Subject Shares to Clearwave under Clause
2.1.
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 for the benefit of a
Seller 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. In furtherance of the foregoing, if prior to the Completion
Date AMFQ shall have objected to the information filed by TIW under
Section 12 of the Securities Act (Quebec) (the " Québec
Act ") and Section 115 of the regulation respecting securities
(Quebec) (the " Québec 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
reasonably be expected to 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, Completion shall take place at the offices of TIW at 1250
René-Lévesque Blvd. West, 38 th floor,
Montreal, Québec, Canada, and with respect to the other
actions to be taken to
complete the Subject Share Transfer,
Completion shall take place at the offices of Oskar Holdings at
World Trade Center, Strawinskylaan 707, Amsterdam 1077 XX, The
Netherlands or at such other place as shall be mutually agreed
between the Sellers and the Purchasers on the Completion Date when
all (but not some only) of the events described in this Clause 4
shall occur.
4.2
On the Completion Date, each Seller shall deliver to TIW, or
Clearwave, 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 Subject Shares to Clearwave as per Clause 2.1, free
from any Encumbrances 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.
4.2.1
If Oskar Holdings declares any dividend or other distribution
between the date of this Agreement and the Completion Date to
shareholders of record before the Completion Date, each Seller
shall deliver to the Purchasers on the Completion Date (or the
payment date of such dividend or other distribution, if such date
is later than the Completion Date), in addition to the Subject
Shares, an amount per Subject Share equal to the per share dividend
or distribution.
4.3
On the Completion Date, the Purchasers shall deliver to each Seller
those documents and take those actions as set out in Schedule 2,
Part A and shall issue the TIW Shares to each Seller as per Clause
2.2 as validly issued fully paid and non-assessable common shares
of TIW, free from any Encumbrances other than those created by the
Sellers and their Affiliates, as the case may be, and those
transfer restrictions created by Clause 8.5, 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.
4.3.1
If TIW declares any dividend or other distribution between the date
of this Agreement and the Completion Date to shareholders of record
before the Completion Date, the Purchasers shall deliver to each
Seller on the Completion Date (or the payment date of such dividend
or other distribution, if such date is later than the Completion
Date), in addition to the TIW Shares, an amount per TIW Share equal
to the per share dividend or distribution.
5.
WARRANTIES
5.1
TIW makes the Warranties set out in Schedule 3, Part A to and for
the benefit of the Sellers as of the date hereof, and as of the
Completion Date. TIW and Clearwave, jointly and severally, make the
Warranties set out in Schedule 3, Part B, to and for the benefit of
the Sellers as of the date hereof and as of the Completion Date.
Notwithstanding anything in this Agreement or in Schedule 3 to the
contrary, the parties agree that TIW and Clearwave make no
warranties as to the securities Laws of any jurisdiction other than
Canada and the United States of America. The Warranties made by TIW
and Clearwave as of the Completion Date shall be made subject to
any further disclosures to a Seller made by TIW or Clearwave in
writing on or before Completion in a form and substance
satisfactory to such Seller, acting reasonably. For the avoidance
of doubt, any such further disclosures made to a Seller which are
not in a form and substance satisfactory to a Seller, acting
reasonably, shall entitle such Seller 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. The Warranties
made by the Sellers 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 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, 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
Each party is aware and acknowledges that it has 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 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 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, the Purchasers may by written notice to the other
parties elect to proceed to Completion or terminate this Agreement
with respect to such Seller, provided that this will not affect the
Completion with respect to the other Sellers.
6.2
If, on or before the Completion Date, any 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 Subject Share Transfer between the
Purchasers and a particular Seller on or before the Termination
Date this Agreement shall terminate with respect to the Subject
Share Transfer between the Purchasers and such particular Seller
(but as to such Seller only).
6.4
If either the Purchasers or any Seller terminates this Agreement
pursuant to Clauses 6.1 or 6.2 or this Agreement terminates
automatically by virtue of Clause 6.3, each relevant 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 7 (Indemnification), 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
7.1
Each of the (i) Purchasers jointly and severally as regards each of
the Sellers and (ii) Sellers severally as regards the Purchasers,
covenant and agree, (a) 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 or warranty of
such party in this Agreement, and (b) for a period of eighteen (18)
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 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 approved by the
Indemnified Party, acting reasonably, 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 of each Seller to the Purchasers hereunder shall not
exceed the product of USD 11.6236 and the number of TIW Shares to
which such Seller is entitled as a consequence of the Subject Share
Transfer pursuant to Clause 2.2.
7.4
The aggregate liability of the Purchasers to a Seller hereunder
shall not exceed the product of USD 11.6236 and the number of TIW
Shares to which such Seller is entitled as a consequence of the
Subject Share Transfer pursuant to Clause 2.2.
8.
COVENANTS
8.1
Pre-Completion
Covenants
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
nonoccurrence of any event, which would be likely to cause any
Conditions to be satisfied by it not to be satisfied. In addition,
TIW covenants and agrees that it shall promptly notify the Sellers
upon becoming aware that a Condition has been satisfied.
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 Subject 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 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 the Completion
Date, 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 in Canada on the TSX,
subject to any restrictions on trading imposed by this Agreement,
and (c) maintain its status as a reporting company under the 1934
Act.
8.4.2
Each Seller hereby covenants and agrees that:
(a) if required by any applicable
Securities Laws, it will assist TIW or Clearwave, as the case may
be, in filing such reports, undertakings and other documents with
respect to the transfer of the Subject Shares and the issue of the
TIW Shares as may be required of TIW or Clearwave, 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, or in the future, as the case may be,
disposition of TIW Shares 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 disposition;
(c) it will not resell the TIW
Shares in Canada, in The Netherlands or in the United States except
in accordance with the Securities Laws; and
(d) the share certificates in
relation to the TIW Shares to be received by the Exempt Sellers
shall have the legends set forth on Schedule 9, and the share
certificates in relation to the TIW Shares to be received by
Sellers other than the Exempt Sellers shall have the legends set
forth on Schedule 10.
8.5
Lock-up.
8.5.1
Subject to the provisions of Clause 8.7, each Seller as regards the
TIW Shares acquired by it under this Agreement covenants and agrees
that, unless TIW consents in writing, it will not, directly or
indirectly, (a) 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 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 (b) 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 (a) or (b) 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 ") from the date hereof
to up to twelve months after the Completion Date, with the partial
release from such lock-up to occur on the first business day in
each successive period of 45 days starting from 45 th
day after the Completion Date (each such day, a " Release
Date "), as to 5%, 5%, 18.75%, 18.75%, 7.5%, 7.5%, 18.75% and
18.75%, respectively, of the TIW Shares on each Release Date, and
the certificates evidencing such TIW Shares shall bear a legend
evidencing the transfer restrictions provided for in this Clause
8.5.1.
8.5.2
For the avoidance of doubt, Clause 8.5.1 shall not apply to 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 other
than the TIW Shares acquired by the Sellers as a result of the
consummation of the Subject Share Transfer, provided such shares
are not acquired in the context of a derivatives or monetization
transaction regarding the TIW Shares acquired hereunder.
8.5.3
If a Seller materially 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
Subject Share Transfer hereunder and such breaching party shall no
longer benefit from the rights set forth under Clause 8.7 hereof;
provided, however, that this shall not prevent the non-breaching
parties from seeking any other available remedy against this breach
and shall not limit in any way the claim resulting from such
breach, if any.
8.5.4
Notwithstanding Clause 8.5.1 but subject to Clause 8.5.3, the TIW
Shares acquired by the Sellers as a result of the consummation of
the Subject Share Transfer may be sold pursuant to Clause 8.7,
provided, however, that such TIW Shares to be sold pursuant to
Clause 8.7 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 LockUp
Period immediately after the Secondary Offering (as defined below),
and (iii) thereafter, from the subsequent tranches to be released
from the Lock-Up Period.
8.5.5
Upon the release of any TIW Shares from the Lock-up Period , TIW
shall, upon the request of and without charge to any Seller, (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 in the
issuance of new share certificates
in connection with any permitted transfer by them of the TIW
Shares.
8.5.6
Notwithstanding the foregoing, (i) the Lock-Up Period shall
immediately terminate upon the occurrence of (a) a Change of
Control in respect of TIW or (b) a material breach by TIW of its
obligations under Clause 8.7, and (ii) Clause 8.5.1 shall not
restrict or prevent any Seller from tendering any or all of the TIW
Shares in any public tender or third party offer for shares of
common stock of TIW which public tender or third party offer, if
successful, could result in a Change of Control in respect of TIW
(it being understood that if such TIW Shares are not acquired in
such offer for any reason, the provisions of this Clause 8.5 shall
be deemed to have otherwise remained in force without interruption
with respect to such tendered TIW Shares).
8.6
Reorganization Event.
If there shall occur between the
date hereof and the Completion Date: (i) a reclassification of the
common shares of TIW, (ii) an exchange of the common shares of TIW
into other shares or other securities of TIW or another entity, or
(iii) a consolidation, amalgamation or merger of TIW with or into
another entity (each a " Reorganization Event "), then, in
lieu of the TIW Shares any Seller is entitled to receive hereunder,
such Seller shall instead be entitled to receive and shall accept,
in lieu of common shares of TIW, such other securities which such
Seller would have been entitled to receive as a result of such
Reorganization Event had such Seller been a holder of common shares
of TIW at the time of such Reorganization Event.
8.7
Concurrent
Registration Rights.
Provided that the Sellers have
complied in all material respects with all their obligations under
this Agreement, 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 the common
shares of TIW 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 in which any Existing Shareholder participates (the "
Secondary Offering "), (a) TIW shall give written notice
thereof to each Seller 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 shall be entitled, in addition to
any rights any Seller may have under any other agreement pertaining
to registration of securities of TIW that such Seller may hold, to
have TIW register or qualify, concurrently with the Secondary
Offering, (the " Concurrent Secondary Offering "), a number
of TIW Shares in the same ratio to the total number of TIW Shares
it then holds as the aggregate number of equity securities of TIW
to be included by the Existing Shareholders in the Secondary
Offering bears to the aggregate number of equity securities that
such Existing
Shareholders then hold, 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 in good faith within ten (10) days after the date 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:
8.7.1
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
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)
(including, without limitation, customary lock-up provisions).
Notwithstanding any other provision of this Clause 8.7, 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 in
the registered offering, including, without limitation, the
Existing Shareholders and the Sellers, 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, the pro
rata allocation shall only be based upon the number of TIW Shares
acquired hereunder owned by such holders at the relevant
time.
8.7.2
Notwithstanding the request made pursuant to Clause 8.7, each
Seller shall have the right to withdraw its securities from any
Concurrent Secondary Offering between the time the terms of such
Concurrent Secondary Offering are agreed and the underwriting
agreement related thereto is executed, provided, however, that if
such Seller elects to withdraw its securities from such Concurrent
Secondary Offering, it must give immediate oral notice, followed as
soon thereafter as practicable by written notice, to TIW and the
underwriter(s), it being understood that if such Seller executes
the underwriting agreement it shall be deemed to have waived its
rights under this Clause 8.7.2. Any securities excluded or
withdrawn from such underwriting agreement shall not be included in
such registration or qualification.
8.7.3
TIW shall pay all Registration Expenses, as hereinafter defined,
incurred by TIW and the Sellers, 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
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 and the Sellers' performance of or compliance with their
obligations under this Clause 8.7 and Clause 8.10, 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 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 participating in the Secondary Offering (which fees
shall not exceed USD 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.
8.7.4
None of the Sellers 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 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 selling
TIW Shares and the liability of each such Seller will be in
proportion to, and such liability will be limited to, the net
amount received by each such Seller 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.
8.7.5
If any shareholder of TIW benefiting from registration rights,
including, without limitation, the parties to this Agreement, shall
determine not to participate in a Secondary Offering or Concurrent
Secondary Offering, (i) other participating shareholders in 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, and (ii)
such nonparticipating shareholder shall not be prevented from
participating in subsequent Secondary Offerings or Concurrent
Secondary Offerings.
8.7.6
The rights under this Clause 8.7 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 this Clause 8.7 and (ii) concurrently with, and
pursuant to the same terms and conditions (other than specified
differences provided in this Agreement) as, a Secondary Offering.
The TIW Shares permitted to be included and so included in any
Concurrent Secondary Offering shall be covered by the applicable
agreement with the underwriters with respect to the Secondary
Offering by the Existing Shareholders on the same terms as the
purchase, underwriting or other arrangement with the Existing
Shareholders in such agreement except as provided herein and
customary for transactions of the kind contemplated.
8.7.7
In the event that any Seller shall waive the Condition set forth in
Schedule 1, Part A, paragraph 5, the rights of such Seller under
this Clause 8.7 shall not apply to the extent that such rights
shall conflict with the rights of the Existing Shareholders under
the Registration Rights Agreement.
8.8
Secondary Offering
Before Completion Date.
If TIW proposes to close a secondary
offering between the date hereof and the Completion Date in which
the Sellers, or any of them, would have been able to participate
had the Completion Date occurred prior to the date of such
offering, then TIW shall (i) effect a primary issuance
simultaneously with such secondary offering of a number of common
shares of TIW designated by the Sellers, which number of common
shares shall not exceed the number of TIW Shares that the Sellers
would have been entitled to sell in the Concurrent Secondary
Offering pursuant to Clause 8.7 and (ii) on the Completion Date,
acquire the corresponding portion of the Subject Shares for cash at
a price per share equal to the product of (a) the exchange ratio
set forth in Clause 2.2 and (b) the offer price per share pursuant
to the Secondary Offering less Selling Expenses per share, in lieu
of the issuance of such number of TIW Shares.
8.9
Waiver of
Rights.
The Sellers and Purchasers agree
(subject, in the case of each Seller, to Completion occurring with
respect to such Seller and in the case of Purchasers, with respect
to each Seller to Completion occurring with respect to such Seller)
that they hereby waive any and all rights they may have under
sections 8 and 10 of the Shareholders Agreement in respect of the
transactions contemplated hereby. In addition, the Sellers and TIW
agree to suspend the operation of sections 13.1 and 14 of the
Shareholders' Agreement, as well as the terms of the Unanimous
Shareholders' Resolution dated as of 3 December 1999, as amended
and restated (the " Unanimous Shareholders Resolution "),
until the Completion Date, it being understood that the
Shareholders' Agreement will be terminated and the Unanimous
Shareholders' Resolution will cease to have any effect as between
the Purchasers and a Seller if and when Completion has occurred in
respec
