1
EXHIBIT 10.47
AMENDED AND RESTATED PUT AND CALL OPTION AGREEMENT
DATED AS OF NOVEMBER 26, 1997
PARTIES
1) PLD TELEKOM INC. (a company incorporated in the State of Delaware, U.S.A.)
whose registered office is at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, X.X.X. ("the Grantee"); and
2) ELITE INTERNATIONAL LIMITED (a company incorporated under the Irish
Companies Acts 1963 to 1990 with registered number 178152) whose registered
office is at Xxxxx Xxxxx, 00-00 Xxxxxxxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx ("the
Grantor", such term to include any permitted transferee).
RECITALS
The parties hereto are parties to a Put and Call Option Agreement dated 28
December 1994, and desire to amend and restate its provisions as hereinafter
set forth.
OPERATIVE PROVISIONS
1 DEFINITIONS
1.1 In this Agreement unless the context otherwise requires the following
expressions shall bear the meanings shown:
Business Day a day, other than a Saturday, on
which banks in each of the City of
London, Vienna, Toronto, Dublin and
Moscow generally are open for normal
banking business
the Call Options the rights granted to the Grantee
pursuant to Clause 2 to purchase or
procure the purchase of Option
Shares at the applicable Option
Price during the applicable Option
Period
the Company Technocom Limited, a private company
limited by shares incorporated under
the Companies Acts, 1963 to 1990 of
Ireland whose registered number is
183622 and with its registered
office at Xxxxx Xxxxx, 00-00
Xxxxxxxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx
1
2
Completion the performance by the parties
hereto of their respective
obligations under Clause 4 or 5
the First Call
Option the right granted to the Grantee
pursuant to subclause (A) of Clause
2.1 to acquire two (2) Ordinary
Shares from the Grantor
the First Option
Period the period commencing on June 30,
1998 and ending on the earlier of:
(i) June 30, 2119 and (ii) the date
on which the First Put Option or the
First Call Option, as the case may
be, is exercised
the First Option
Price the price for the First Option
Shares calculated in accordance
with Clause 9.1
the First Option
Shares the two (2) Ordinary Shares which
are the subject of the First Put
Option and the First Call Option
the First Put
Option the right granted to the Grantor
pursuant to subclause (A) of Clause
3.1 to require the Grantee to
purchase two (2) Ordinary Shares
the Grantee's
Solicitors Xxxxxx, Xxxxx & Xxxxxxx, of 0
Xxxxxxx Xxxxxxx, Xxxxxx XX0X 0XX
the Grantor's
Solicitors Xxxxxxx Xxxxxxx currently of 0-00
Xxx Xxxxxx Xxxx, Xxxxxx XX0X 0XX, or
such other firm of solicitors as the
Grantor may hereafter notify the
Grantee in writing
Option Period the First Option Period or the
Second Option Period, as applicable
Option Shares any of the ten (10) Ordinary Shares
which are the subject of the Put
Options and the Call Options
Ordinary Shares ordinary shares in the capital of
the Company
2
3
the Put Options the rights granted to the Grantor
pursuant to Clause 3 to require the
Grantee to purchase or procure the
purchase of Option Shares at the
applicable Option Price during the
applicable Option Period
Reorganization in relation to the Company includes
every issue by way of capitalization
of profits or reserves and every
issue by way of rights and every
consolidation or sub-division or
reduction of capital or capital
dividend or other reconstruction or
adjustment relating to the equity
share capital (or any shares or
securities derived therefrom) and
any amalgamation or reconstruction
affecting the equity share capital
(or any shares, stocks or securities
derived therefrom)
the Second Call
Option the right granted to the Grantee
pursuant to subclause (B) of Clause
2.1 to acquire eight (8) Ordinary
Shares from the Grantor
the Second Option
Period the period commencing on June 30,
1999 and ending on the earlier of:
(i) June 30, 2119 and (ii) the date
on which the Second Put option or
the Second Call Option, as the case
may be, is exercised
the Second Option
Price the price for the Second Option
Shares calculated in accordance
with Clause 9.2
the Second Option
Shares the eight (8) Ordinary Shares which
are the subject of the First Put
Option and the First Call Option
the Second Put
Option the right granted to the Grantor
pursuant to subclause (B) of Clause
3.1 to require the Grantee to
purchase eight (8) Ordinary Shares
1.2 Reference to clauses and the parties are respectively to clauses of and
the parties to this Agreement.
3
4
1.3 References to documents in the agreed form are to documents initialled
for the purpose of identification only by the Grantee's Solicitors and
the Grantor's Solicitors.
2 THE CALL OPTIONS
2.1 In consideration of the sum of pound sterling 1 (receipt of which the
Grantor acknowledges) the Grantor grants to the Grantee (A) the right
exercisable during the First Option Period to purchase two (2) Ordinary
Shares at the First Option Price, and (B) the right exercisable during
the Second Option Period to purchase eight (8) Ordinary Shares at the
Second Option Price.
2.2 The First Call Option shall be exercisable at any time during the First
Option Period and the Second Call Option shall be exercisable at any time
during the Second Option Period, in either case by notice in writing of
exercise served on the Grantor.
2.3 All Option Shares shall be sold free from all liens, charges and
encumbrances and with all rights attached thereto at the date of such
exercise.
3 THE PUT OPTIONS
3.1 In consideration of the sum of pound sterling 1 (receipt of which the
Grantee acknowledges) the Grantee grants to the Grantor (A) the right
exercisable during the First Option Period to require the Grantee to
purchase two (2) Ordinary Shares at the First Option Price, and (B) the
right exercisable during the Second Option Period to require the Grantee
to purchase eight (8) Ordinary Shares at the Second Option Price.
3.2 The First Put Option shall be exercisable at any time during the First
Option Period and the Second Put Option shall be exercisable at any time
during the Second Option Period, in either case by notice in writing of
exercise served on the Grantee, and the documents listed in clause 4.1(b)
hereof duly executed but undated shall be delivered to the Grantee's
Solicitors, to be held to the order of the Grantor pending payment of the
applicable Option Price.
3.3 All Option Shares shall be sold free from all liens, charges and
encumbrances and with all rights attached thereto at the date of such
exercise.
4 COMPLETION OF THE CALL OPTION
4.1 Completion of the purchase and sale of any Option Shares pursuant to the
exercise of the First or Second Call Option shall take place at the
offices of the Grantee's Solicitors (or at such other place as the
parties shall mutually agree). In the case of the First Call Option,
Completion shall take place on such date as the Grantor and the Grantee
shall agree, but in all events not later than ten Business Days after the
Grantor shall have received the notice of exercise. In the case of the
Second Call
4
5
Option, Completion shall take place on the date specified in Clause
9.2(e). At either such Completion:
(a) the Grantee shall either pay or procure the payment
by telegraphic transfer to the Grantor (or as the
Grantor may direct) of the applicable Option Price
for the Option Shares being acquired (or, in respect
of the First Call Option, in the event that the
Grantor shall elect pursuant to Clause 9.1 to receive
the Additional Consideration Shares (as defined
therein) in lieu of cash, the Grantee shall deliver
to the Grantor the share certificates for the
Additional Consideration Shares (legended as required
pursuant to the United States securities laws) and
such other documents as shall be required to vest
title to the Additional Consideration Shares with the
Grantor ); and
(a) the Grantor shall deliver to the Grantee:
(i) duly executed but undated stock
transfer forms in respect of the
Option Shares being purchased by the
Grantee together with the relative
share certificates or, to the extent
that the Grantor can so provide,
such other documents as shall be
required to vest title to the Option
Shares being purchased with the
Grantee or its designee, and, if it
is taking the Additional
Consideration Shares, an undertaking
satisfactory to the Grantee that it
is taking such Shares for investment
purposes only and not with a view to
the distribution thereof; and
(i) to the extent that the Grantor can
so provide, such other deeds and
documents and opinions of Counsel as
may be necessary to transfer to the
Grantee or its designee or as it may
direct the unencumbered beneficial
ownership of the Option Shares being
purchased.
4.2 If the Grantor makes default in transferring any of the Option Shares as
aforesaid the Directors of the Company shall be entitled to receive and
give a good discharge for the Option Price payable for such Option Shares
on behalf of the Grantor (but shall not be bound to earn any interest
thereon) and the Grantor hereby irrevocably appoints such one of the
Directors of the Company as the Grantee shall nominate in writing as the
Grantor's attorney to execute on its behalf the transfer or transfers of
the Option Shares in favour of the Grantee (or as the Grantee may direct)
and such other documents as may be necessary to transfer title to such
Option Shares to the Grantee (or as the Grantee may direct) and hereby
authorizes the Directors of the
5
6
Company to approve the registration of such transfer or transfers or such
other documents.
4.3 The Grantor shall (so far as it is able) procure the Grantee or its
designee will be registered as the holder of any Option Shares being
purchased.
4.4 Any payments by the Grantee under the First or Second Put Options or the
First or Second Call Options shall be made free and clear of all
withholdings and deductions, howsoever arising.
5 COMPLETION OF THE PUT OPTION
Completion of the transfer or sale of any Option Shares pursuant to the
exercise of the First or the Second Put Option shall take place at the
offices of the Grantee's Solicitors (or at such other place as the
parties shall mutually agree). In the case of the First Put Option,
Completion shall take place on such date as the Grantor and the Grantee
shall agree, but in all events not later than ten Business Days after the
Grantee shall have received the notice of exercise. In the case of the
Second Put Option, Completion shall take place on the date specified in
Clause 9.2(e). At either such Completion the Grantee shall take the
actions specified in Clause 4.1(a), and upon such actions having been
taken, the Grantee's Solicitors shall release to the Grantee the
documents delivered to them to hold to the order of the Grantor pursuant
to the terms of Clause 3.2.
6 EFFECTS OF A REORGANIZATION
6.1 If any Reorganization shall take place after the date hereof all the
shares, stock and other securities (if any) which shall have become owned
by the Grantor or successors in title as a result of each such
Reorganization and which shall derive (whether directly or indirectly)
from the Option Shares shall be deemed to be subject to an exercise of
either the First or Second Call Options or the First or Second Put Option
(as the case may be) and shall be transferred or sold to the Grantee (or
as the Grantee may direct) in accordance with Clause 2 or 3 (as the case
may be).
6.2 References in this Agreement to the Option Shares shall be so construed
as to give full effect to this Clause 6.
7 PROHIBITION ON DISPOSAL
Subject to the terms of a Shareholder Agreement relating to the Company
entered into on 28 December 1994 and made between inter alia the Grantor
and the Grantee, as heretofore amended or supplemented ("the Shareholder
Agreement"), and notwithstanding the provisions of Clause 6, while either
the First Call Option or the Second Call Option remains exercisable the
Grantor shall not, without the prior written consent of the Grantee,
sell, transfer or otherwise dispose of (including
6
7
without prejudice to the generality of the foregoing accept an offer made
to all holders for the class or classes of securities to which the
applicable Option Shares belong) or mortgage, charge, pledge or otherwise
encumber any of the Option Shares or any interest therein subject to the
applicable Call Option.
8 GRANTOR'S WARRANTIES
8.1 The Grantor warrants to the Grantee that it is and will remain until the
exercise of either the First Call Option or the First Put Option (as the
case may be) or the expiry of the First Option Period (whichever is the
later), the beneficial owner of the First Option Shares, subject only to
such Options, that it is and will remain until the exercise of either the
Second Call Option or the Second Put Option (as the case may be) or the
expiration of the Second Option Period (whichever is the later), the
beneficial owner of the Second Option Shares, subject only to such
Options, and that it has and will have full power and authority to grant
Options in respect of the same upon the terms and conditions of this
Agreement.
8.2 The Grantee warrants to the Grantor that it has and will have full power
and authority to execute and comply with the terms and conditions of this
Agreement.
9 THE OPTION PRICES
9.1 The First Option Price shall be US $1,000,000 or, if the Grantor so
elects in its notice of exercise of the First Option, that amount of
shares of common stock of the Grantee (the "Additional Consideration
Shares") which results from dividing the sum of $1,000,000 by the lesser
of: (i) $5.85 and (ii) the average closing price of the Grantee's common
stock over the ten trading days prior to the applicable Completion date.
In the event that the Grantor shall elect to take the Additional
Consideration Shares, the Grantor and/or any other party in whose name
the Additional Consideration Shares may be issued shall give an
undertaking satisfactory to the Grantee that such Shares are being taken
for investment purposes only and not with a view to the distribution
thereof, and all certificates for Additional Consideration Shares shall
be appropriately legended to comply with the United States securities
laws.
9.2 The Second Option Price shall be calculated and paid as follows:
(a) Within thirty (30) days after the exercise of the Second Call Option
or the Second Put Option, as the case may be, the Grantee shall
deliver to the Grantor its valuation of the entire issued ordinary
share capital of the Company (the "Valuation"). The Valuation, as
determined by the Grantee, shall be conclusive and binding upon the
Grantor for all purposes hereof and the Grantor's sole rights in
respect thereof shall be as specifically set forth hereinafter.
7
8
(b) If the Valuation shall be less than US $111,000,000, then the
Second Option Price shall be US $6,689,655. If the Valuation shall
be more than US $145,000,000, then the Second Option Price shall be
US $9,620,689. Under no circumstances shall the Second Option Price
exceed US $9,620,689.
(c) If the Valuation shall be between US $111,000,000 and US
$145,000,000, then the Second Option Price shall be the amount
which results from the following calculation:
US $6,689,655 plus US $2,931,034 multiplied by the Valuation less 111,000,000
------------------------------
divided by 34,000,000
(d) Following the finalization of the Second Option Price as set forth
above, both parties shall be obligated to proceed to the Completion
of the purchase and sale of the Second Option Shares.
(e) Completion of the purchase and sale of the Second Option Shares
pursuant to the exercise of either the Second Call Option or the
Second Put Option shall take place in the manner provided in Clauses
4.1 and 5, as the case may be, on the ninetieth (90th) day following
the delivery of the Valuation to the Grantor (the "Due Date"), at
which time the actions specified in such Clauses shall be taken.
10 GENERAL
10.1 No amendment, change or addition hereto shall be effective or binding on
either party unless reduced to writing and executed by both parties.
10.2 This Agreement and the rights hereunder may not be assigned in whole or
in part to any company or person, save that the Grantor may assign its
rights to a Member of the same Group (as that term is defined in the
Shareholder Agreement) as the Grantor.
10.3 The headings to clauses of this Agreement are for ease of reference only
and do not form part of this Agreement and are not in any way to affect
its construction.
10.4 Any notice to be given under this Agreement:
(a) must be in writing;
(b) may be given to the Grantor at its registered office (or such
other address as it may notify to the Grantee for such
purpose);
(c) may be given to the Grantee at its registered office (or such
other address as it or its assignee may notify to the Grantor
for such purpose); and
8
9
(d) will be effectively served:
(i) on the day of receipt, where any hand
delivered letter, telex or telefax message is
received on any Business Day before or during
normal working hours;
(ii) on the following Business Day, where any hand
delivered letter, telex or telefax message is
received either on an Business Day after
normal working hours or on any day which is
not a Business Day; or
(iii)on the second Business Day following the day of
posting, upon despatch from within the United
Kingdom of any posted letter by post office
inland first class mail postage prepaid, or
the fifth Business Day following the day of
posting of any letter sent by air mail
postage prepaid, and in proving such service
it shall only be necessary to prove that the
same was stamped, properly addressed and
posted as aforesaid.
10.5 Copies of all notices served on the Grantee must also be served by
facsimile transmission sent to 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, U.S.A., marked for the attention of Mr. E. Xxxxx Xxxxxxxx and Xx.
Xxxxxx Xxxxx (0-000-000-0000) and copies of all notices served on the
Grantor must also be served by facsimile transmission sent to Messrs.
Xxxxxxx Xxxxxxx of 0-00 Xxx Xxxxxx Xxxx, Xxxxxx XX0X 0XX marked for the
attention of Mr. M. Moncreiffe and Xx. X. Xxxxxx (00-00-000-0000).
10.6 This Agreement is governed by and is to be construed in accordance with
English Law, including its rules as to the conflict of laws.
10.7 Each of the parties irrevocably submits to the non-exclusive jurisdiction
of the appropriate court of law in England in relation to any matters
arising out of or in connection with this Agreement and waives any
objection to legal proceedings being made in such courts whether on the
ground of venue or on the ground that such proceedings have been brought
in an inconvenient forum. These submissions shall not limit the rights
of the parties to bring any action in any other court having or claiming
jurisdiction (whether concurrently or not), provided that no proceedings
shall be undertaken by either party in any federal or state court in the
United States of America.
10.8 The Grantee hereby appoints Messrs. Xxxxxx, Xxxxx & Xxxxxxx, of 0 Xxxxxxx
Xxxxxxx, Xxxxxx XX0X 0XX all communications to be marked for the
attention of Xx. Xxxxxx X. Benz and the Grantor hereby appoints Messrs.
Xxxxxxx Xxxxxxx of 0-00 Xxx Xxxxxx Xxxx, Xxxxxx XX0X 0XX all
communications to be marked for the attention of Mr. M. Moncreiffe and
Xx. X. Xxxxxx in each case for service of process
9
10
in connection with legal proceedings in England and arising out of or in
connection with this Agreement.
10.9 In the event that any legal action in respect of this Agreement is
started, the process by which it is started may be served on the
defendant or, if specified in this Agreement, any other person on its
behalf at the place at which and in the manner in which notices may be
given to that party.
10
11
ATTESTATIONS
Executed as a Deed by )
PLD TELEKOM INC. )
acting by: )
Director s/s XXXXX X.X. XXXX
Director s/s XXXXX XXXXXXX
Given under the Common Seal of )
ELITE INTERNATIONAL LIMITED )
acting by: )
Director s/s XXXXX XXXXXXXX
Xxxxxxxxx x/x XXXXXXX XXXXXXXXX
00
