Exhibit 4.18
_______ AUGUST 1999
BY AND AMONG
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ INTERNATIONAL
NETIA HOLDINGS S.A.
SHAMROCK HOLDINGS INC.
TREFOIL CAPITAL INVESTORS, L.P.
ING BANK N.V. (WARSAW BRANCH)
MEIR SREBERNIK
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
ESCROW AGREEMENT
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
TABLE OF CONTENTS
1. APPOINTMENT OF ESCROW AGENT; ESTABLISHMENT OF ESCROW ACCOUNTS............2
2. DEPOSIT OF FUNDS.........................................................3
3. DEPOSIT OF SHARES........................................................4
4. DISBURSEMENT OF FUNDS AND RELEASE OF SHARES..............................4
5. UNDERTAKINGS.............................................................7
6. RESPONSIBILITY OF ESCROW AGENT...........................................7
7. NO LIEN..................................................................8
8. FEES.....................................................................8
9. AMENDMENT AND CANCELLATION...............................................8
10. PAYMENT..................................................................8
11. NOTICES..................................................................8
12. BINDING EFFECT; ASSIGNMENT; THIRD PARTY BENEFICIARIES...................10
13. ENTIRE AGREEMENT........................................................10
14. GOVERNING LAW AND JURISDICTION..........................................10
15. COUNTERPARTS............................................................10
ESCROW AGREEMENT made on ______ July 1999 (this "AGREEMENT") by and among
1. ▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ INTERNATIONAL (the "GLOBAL COORDINATOR")
for itself and the several Underwriters listed in the Underwriting
Agreement (defined herein).
2. NETIA HOLDINGS S.A. a joint-stock company incorporated in the Republic
of Poland (the "COMPANY").
3. SHAMROCK HOLDINGS INC. ("SHAMROCK").
4. TREFOIL CAPITAL INVESTORS, L.P. ("TREFOIL" and each of Trefoil and
Shamrock, a "SELLING Stockholder").
5. ING BANK N.V. (WARSAW BRANCH) (the "ESCROW AGENT").
6. MEIR SREBERNIK as Attorney-in-Fact for each Selling Stockholder
pursuant to the Letter of Transmittal and Custody Agreement (the
"CUSTODY AGREEMENT") dated ____ July 1999.
7. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as Attorney-in-Fact for each Selling Stockholder
pursuant to the Custody Agreement (each of Mr Srebernik and ▇▇ ▇▇▇▇▇▇▇
an "ATTORNEY-IN-FACT").
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Underwriting Agreement (defined herein).
RECITALS
WHEREAS, pursuant to a resolution adopted at an extraordinary general meeting of
the shareholders of the Company held on 26 July 1999, the shareholders of the
Company approved an increase in the capital of the Company by the issuance of
5,500,000 common shares each with a nominal value of PLN 6.00 (the "NEW
SHARES").
WHEREAS, the Company is offering in an initial public offering 5,500,000
American Depositary Shares ("ADSS") representing the 5,500,000 New Shares. The
New Shares are being offered pursuant to an Underwriting Agreement dated ______
July 1999 among the Company, the Selling Stockholders, the Global Coordinator
and the other Underwriters named therein (the "UNDERWRITING AGREEMENT").
WHEREAS, pursuant to the Underwriting Agreement, the Selling Stockholders have
granted to the Underwriters an option (the "OVER-ALLOTMENT OPTION") to purchase
up to a further 825,000 Shares (the "OPTION SHARES") in whole or in part, on
more than one occasion, any time within 30 days of the date of the Underwriting
Agreement, solely for the purpose of covering over-allotments made in connection
with the offering of the ADSs.
WHEREAS, the ADSs will be issued pursuant to a deposit agreement (the "DEPOSIT
AGREEMENT") made between the Company and The Bank of New York, as depositary
(the "DEPOSITARY").
WHEREAS, all actions have been taken to approve the issuance of the New Shares
other than the registration by the Commercial Court in Warsaw of the capital
increase required for the issuance of New Shares (the "CAPITAL INCREASE").
WHEREAS, the subscription price for the New Shares is required to be paid prior
to the registration of the Capital Increase by the Commercial Court in Warsaw.
WHEREAS, the parties wish that from the date hereof or the relevant Option
Closing Date (defined herein), as the case may be, until the date the Commercial
Court in Warsaw approves the application for registration of the Capital
Increase (the "REGISTRATION DATE") and thereafter until the Share Availability
Date (as defined below in Section 4.2): (a) the subscription price for the New
Shares and the purchase price for the Option Shares (to the extent the Option
Closing Date on the exercise of any over-allotment option is prior to the Share
Availability Date) be held in escrow accounts established pursuant hereto and
(b) the Option Shares (to the extent that the Option Closing Date on the
exercise of any over-allotment is prior to the Share Availability Date) be held
by the Escrow Agent in blocked accounts established pursuant hereto.
WHEREAS pursuant to the Custody Agreement each Selling Stockholder has deposited
the Option Shares held by such Selling Stockholder with Meir Srebernik and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and has appointed each individual as Attorney-in-Fact for such
Selling Stockholder.
WHEREAS, the Escrow Agent is willing (a) to accept the deposit of funds and of
the Option Shares (b) to invest such funds as directed by the Company subject to
approval of the Global Coordinator in accordance with Section 2.4 hereof (the
"PERMITTED INVESTMENTS") and (c) to hold and disburse such funds and to hold and
transfer the Option Shares subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties hereto agree as follows:
1. APPOINTMENT OF ESCROW AGENT; ESTABLISHMENT OF ESCROW ACCOUNTS
1.1 APPOINTMENT OF THE ESCROW AGENT
Each of the Global Coordinator on behalf of the Underwriters, the
Company, each Selling Stockholder and each Attorney-in-Fact hereby
irrevocably appoints the Escrow Agent as its agent (i) to hold and
disburse the funds and Permitted Investments held from time to time by
the Escrow Agent (ii) to purchase and sell the Permitted Investments
and (iii) to hold and transfer the Option Shares held by the Escrow
Agent from time to time, in each case only in accordance with the
provisions of this Agreement, and the Escrow Agent hereby accepts such
appointment.
1.2 ESTABLISHMENT OF ESCROW ACCOUNTS
(a) The Escrow Agent hereby agrees to open a cash escrow account
in U.S. dollars in the name of the Company (the "COMPANY
ESCROW ACCOUNT") for the proceeds from the subscription of the
New Shares.
(b) The Escrow Agent hereby agrees to open a cash escrow account
in U.S. dollars in the name of each Selling Stockholder (each
a "SELLING STOCKHOLDER ESCROW ACCOUNT" and, together with the
Company Escrow Account, the "ESCROW ACCOUNTS" and each an
"ESCROW ACCOUNT") for the proceeds from the sale of the Option
Shares (to the extent that the Option Closing Date on the
exercise of any over-allotment option is prior to the Share
Availability Date).
(c) The Escrow Agent hereby agrees to open a securities escrow
account in the name of each Selling Stockholder for the Option
Shares (to the extent that the Option Closing Date on the
exercise of any over-allotment option is prior to the Share
Availability Date) (the "OPTION SHARE BLOCKED ACCOUNTS").
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2. DEPOSIT OF FUNDS
2.1 DEPOSIT OF FUNDS
The Escrow Agent shall, upon receipt thereof, deposit all funds
received in payment for Shares and ADSs in to the relevant Escrow
Account in the following manner:
(a) the subscription price for the New Shares shall be deposited
into the Company Escrow Account;
(b) to the extent that the over-allotment option is exercised and
in the event that the purchase price for the Option Shares is
paid prior to the Share Availability Date, such purchase price
shall be deposited in the relevant Selling Stockholder Escrow
Account.
Upon receipt of such funds on the Closing Date or Option Closing Date,
as the case may be, the Escrow Agent shall deliver to the Global
Coordinator a certificate in substantially the form of EXHIBIT A.
2.2 CURRENCY OF FUNDS
The funds deposited in the Escrow Accounts shall be deposited and held
in U.S. dollars.
2.3 NO COMMINGLING
Except as otherwise provided below, the Escrow Agent shall maintain in
the relevant Escrow Account only (i) the monies received by the Escrow
Agent and paid by the Global Coordinator on behalf of the Underwriters
with respect to the Offering and the exercise of any over-allotment
option, if applicable, (ii) any amounts received as a result of the
investment of such funds, if any, and (iii) interest earned thereon, if
any, and shall not commingle such amounts with any other funds held by
the Escrow Agent.
2.4 INVESTMENT OF DEPOSITED FUNDS IN PERMITTED INVESTMENTS
Funds on deposit with the Escrow Agent in the Company Escrow Account
and the Selling Stockholder Escrow Account may, following consultation
with the Global Coordinator and the Company, be invested by the Escrow
Agent only in money market securities issued or directly and fully
guaranteed or insured by the full faith and credit of the United States
Government or any agency or instrumentality thereof [having maturities
of not more than seven days from the date of acquisition] and approved
by the Global Coordinator and the Company. Such instructions shall be
substantially in the form of EXHIBIT B.
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2.5 CERTIFICATION
The Escrow Agent shall use its best endeavors to provide the Global
Coordinator, the Company and/or the relevant Selling Stockholder with
such certificates as the Global Coordinator, the Company and/or the
relevant Selling Stockholder may from time to time reasonably require,
evidencing the amount of funds (including accrued interest, if any)
standing to the credit of each of the Escrow Accounts.
3. DEPOSIT OF SHARES
3.1 DEPOSIT OF EXISTING SHARES
On or before the relevant Option Closing Date (as defined herein) each
Selling Stockholder or the Attorney-in-Fact (as applicable) shall have
transferred the Option Shares into the relevant Option Share Blocked
Account, which the Escrow Agent shall block until their release in
accordance with Section 4 below.
3.2 EVIDENCE OF DEPOSIT OF SHARES
On or before the relevant Option Closing Date (as defined herein), the
Attorney-in-Fact on behalf of each Selling Stockholder shall have
delivered to the Escrow Agent with the relevant Option Shares a letter
in substantially the form of EXHIBIT C hereto. Upon receipt thereof and
of the relevant Option Shares, the Escrow Agent shall deliver to the
Global Coordinator and the Attorney-in-Fact an acknowledgement of
receipt in substantially the form of EXHIBIT C hereto.
4. DISBURSEMENT OF FUNDS AND RELEASE OF SHARES
The Escrow Agent agrees that the funds initially deposited in the
Escrow Accounts (the "DEPOSITED FUNDS"), interest accrued thereon and
any other return on investment thereof, if any, from the date of
deposit (collectively the "ESCROW FUNDS") shall be disbursed and the
Option Shares held in the Option Share Blocked Accounts shall be
released and transferred, only in accordance with the following
provisions.
4.1 DELIVERY OF DOCUMENTS UPON REGISTRATION OF THE CAPITAL INCREASE
As soon as practicable following registration of the Capital Increase:
(a) the Company shall deliver to the Escrow Agent and the Global
Coordinator:
(i) a Court certified copy of the decision of the
Commercial Court in Warsaw approving and registering
the Capital Increase; and
(ii) [a certificate in substantially the form of EXHIBIT D
indicating that (i) the New Shares have been
registered in the Company's books in the name of the
Custodian named in the Deposit Agreement (the
"CUSTODIAN") and (ii) the Option Shares (to the
extent that the Option Closing Date on the exercise
of any over-allotment option is prior to the Share
Availability) have been registered in the Company's
books in the name of the Custodian;] and
(b) the Company shall cause to be delivered to the Global
Coordinator five signed copies of an opinion (satisfactory to
the Global Coordinator and its counsel), dated such
Registration Date, of Weil, Gotshal & ▇▇▇▇▇▇ ▇▇. z o.o. Polish
legal advisors to the Company to the effect that (i) the
registration of the Capital Increase is complete and
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effective; and (ii) the New Shares have been duly authorized,
validly issued, are fully paid and non-assessable and are not
subject to any preemptive rights;
(c) the Company shall deposit the New Shares with the Custodian on
behalf of the Depositary pursuant to the Deposit Agreement and
shall notify the Escrow Agent thereof.
4.2 DETERMINATION OF SHARE AVAILABILITY DATE AND RELEASE OF FUNDS
Upon the date that the Escrow Agent has received each of (i) the
documents referred to in Section 4.1(a)(i) and 4.1(a)(ii) above, (ii) a
certificate substantially in the form of EXHIBIT E confirming receipt
of the New Shares represented by ADSs by the Custodian, (iii) a
certificate substantially in the form of EXHIBIT E confirming receipt
of the Option Shares represented by ADSs (to the extent that the
over-allotment option has been exercised) by the Custodian, (iv) a
letter executed by the Global Coordinator in substantially the form of
EXHIBIT F notifying the Escrow Agent of the aggregate amount of
underwriting commissions, fees and expenses (the "UNDERWRITING FEES")
payable in connection with the Underwriting Agreement (or otherwise) to
be deducted from each of the Escrow Accounts prior to disbursement by
the Escrow Agent of the Escrow Assets (as defined herein) and notifying
the Escrow Agent of receipt of the opinion described in Section 4.1 by
the Global Coordinator (such date, the "SHARE AVAILABILITY DATE"), the
Escrow Agent shall, as soon as reasonably practicable and in any event
within two (2) business days in Warsaw ("BUSINESS DAYS") release from
the Escrow Accounts and transfer to the account of the Global
Coordinator, the aggregate Underwriting Fees.
Upon written confirmation of receipt in the substantially the form of
EXHIBIT G of the aggregate Underwriting Fees from the Global
Coordinator, the Escrow Agent shall as promptly as practicable release
from the Escrow Accounts and transfer to the account of:
(a) the Company, the Escrow Funds in the Company Escrow Account
less the applicable Underwriting Fees; and
(b) each Selling Stockholder, the Escrow Funds in the relevant
Option Share Sub-Account (to the extent that the
over-allotment option has been exercised) less the applicable
Underwriting Fees.
Such transfers shall be made to the accounts notified to the Escrow
Agent from time to time by the Global Coordinator, the Company and each
Selling Stockholder, as the case may be.
4.3 RELEASE OF THE OPTION SHARES
To the extent that the Closing Date on the exercise of any
over-allotment option (the "OPTION CLOSING DATE") is prior to the Share
Availability Date, the Option Shares transferred to the Escrow Agent
pursuant to Section 3 of this Agreement shall remain in the Option
Share Blocked Account with irrevocable instructions from each Selling
Stockholder or the Attorney-in-Fact (as applicable) in substantially
the form of Exhibit H to release such Option Shares to the Custodian on
behalf of the Depositary upon registration of the Capital Increase on
such day as the Company releases the New Shares to the Custodian
pursuant to Section 4.1(c). If the over-allotment option is not
exercised in respect of some or all of the Option Shares, each Selling
Stockholder or the Attorney-in-Fact (as applicable) authorizes and
instructs the Escrow Agent to transfer such Option Shares to the
Selling Stockholder following the expiry of the over-allotment option,
or if earlier, in accordance with instructions given by the Global
Coordinator.
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In the event that an Option Closing Date is on or after the Share
Availability Date, each Selling Stockholder or the Attorney-in-Fact (as
applicable) shall release the Option Shares directly to the Custodian
on behalf of the Depository on the applicable Option Closing Date.
Each Selling Stockholder or the Attorney-in-Fact (as applicable) shall
deliver or cause to be delivered all instructions, certificates,
documents and agreements required by the Escrow Agent or the Depository
in accordance with this Agreement and the Deposit Agreement,
respectively.
4.4 DISBURSEMENT AND RELEASE ON THE TERMINATION DATE
If the Escrow Agent either (i) receives notification at any time prior
to [30 September 1999] (or such later date as agreed to by the Company,
the Selling Stockholders and the Global Coordinator and notified to the
Escrow Agent) (the "TERMINATION DATE") from the Company pursuant to
Section 5 of this Agreement that the Commercial Court in Warsaw has
rejected the Capital Increase, or (ii) has not, by the Termination Date
been notified by the Company or otherwise that the Commercial Court in
Warsaw has approved the application for registration of the Capital
Increase, the Escrow Agent shall disburse:
(a) a sum equal to the amount of all Escrow Funds held in all
Escrow Accounts to the Depositary for distribution to the then
holders of ADSs in accordance with the terms of the Deposit
Agreement; and
(b) the Option Shares to the relevant Selling Stockholder.
4.5 TIMING OF PAYMENT AND TRANSFER
Such payments and transfers in accordance with Section 4.4 shall be
made as promptly as possible in accordance with written instructions
provided by the Global Coordinator (but in no event later than three
business days) following the earlier of (i) the date that the Escrow
Agent is notified by the Company in accordance with Section 4.4(i) or
(ii) the Termination Date, as the case may be.
4.6 ADJUDICATED DISPUTE
The Escrow Funds and the Option Shares held by the Escrow Agent in the
Option Share Blocked Accounts (together the "ESCROW ASSETS") shall be
released and disbursed either to the Global Coordinator, the Company or
the Selling Stockholders, as the case may be, as soon as practicable
after receipt by the Escrow Agent of a copy of, and in accordance with,
a Final Judgment as specified in Section 6.2.
4.7 INSOLVENCY OF ESCROW AGENT
The Escrow Assets shall be released and disbursed pursuant to the
instructions of the Global Coordinator immediately prior to, and in any
event no later than upon, commencement of any insolvency proceedings
against the Escrow Agent.
4.8 AUTHORITY AND INSTRUCTIONS
The Company, each Selling Stockholder and the Attorneys-in-Fact hereby
irrevocably and expressly instruct the Escrow Agent to make, and
consent to, all transfers and payments made in accordance with the
foregoing provisions of this Agreement.
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5. UNDERTAKINGS
The Company agrees to notify the Escrow Agent and the Global
Coordinator immediately by fax (to be confirmed by telephone) if the
Commercial Court in Warsaw approves or rejects the application to
register the Capital Increase.
6. RESPONSIBILITY OF ESCROW AGENT
6.1 LIMITATION OF DUTIES
Except as specifically provided in this Agreement, the Escrow Agent
shall have no duties or responsibilities hereunder and shall not be
liable hereunder except to the extent that the Escrow Agent has
breached this Agreement, or demonstrated negligence or willful
misconduct in any action or failure to act. The liability of the Escrow
Agent hereunder shall be limited to an amount equal to the sum of the
Escrow Assets and the Escrow Agent shall be protected to the extent
that it has acted based upon any certificate, notice or other
instrument whatsoever received by the Escrow Agent in accordance with
this Agreement, not only as to its authenticity, genuineness and due
execution and the validity and effectiveness of its provisions, but
also as to the truth and accuracy of any information therein contained,
which the Escrow Agent in good faith believes to be genuine and to have
been signed or presented by the proper person or persons or their
counsel.
6.2 LIMITATION ON OBLIGATION TO DISBURSE OR RELEASE
Subject to Section 14.3, if a dispute shall arise between or among one
or more of the parties hereto, or between any of the parties hereto and
any person not a party hereto, as to whether or not or to whom the
Escrow Agent shall deliver the Escrow Assets or any portion thereof or
as to any other matter arising out of or relating to this Agreement,
the Escrow Agent shall not be required to adjudicate such dispute and,
subject to Section 4.5, need not make any delivery of the Escrow Assets
or any portion thereof but may retain the same until the rights of the
parties to the dispute shall have finally been determined by written
agreement among such parties or by a competent arbitral tribunal, after
all appeals have been finally determined by a court of competent
jurisdiction or the time for further appeals has expired without an
appeal having been made (for purposes of this Agreement, a "FINAL
JUDGMENT"). The Escrow Agent shall deliver the Escrow Assets, if any,
covered by such agreement or Final Judgment within five (5) business
days after the Escrow Agent has received a copy of such agreement or
Final Judgment. The Escrow Agent shall be entitled to assume that no
controversy has arisen unless it has received a written notice (i) that
such a controversy has arisen, (ii) that such controversy relates
specifically to this Agreement and (iii) which identifies the adverse
claimants to the controversy.
6.3 LIMITATION ON ACTIONS BY ESCROW AGENT
In the event that the Escrow Agent shall be uncertain as to its duties
or rights hereunder or shall receive instructions from any other of the
parties hereto with respect to any or all of the Escrow Assets, the
Escrow Agent shall be entitled to refrain from taking any action until
it shall be directed otherwise in writing by both the Company and the
Global Coordinator or by both the Selling Stockholders and the Global
Coordinator, as the case may be, or by an order of a court of competent
jurisdiction. The Escrow Agent shall be deemed to have no notice of, or
duties with respect to, any agreement or agreements with respect to the
Escrow Assets other than this Agreement or except as otherwise provided
herein. With respect to the Escrow Account, in the event that any of
the terms and provisions of any other agreement (excluding any
amendment to this Agreement) between any of the parties hereto conflict
or are inconsistent with any of the terms and conditions of this
Agreement, this Agreement shall govern and control in all respects.
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6.4 NO INTEREST IN ESCROW ASSETS
Notwithstanding any provision to the contrary contained in any other
agreement (excluding any amendment to this Agreement) between any of
the parties hereto, the Escrow Agent shall have no interest in the
Escrow Assets except as provided for in this Agreement. In connection
therewith, the Escrow Agent hereby expressly waives any and all right
to (i) use any of the Escrow Assets as collateral for, or to otherwise
secure, any claims of the Escrow Agent against any of the Global
Coordinator, the Underwriters, the Company, the Selling Stockholders or
the Attorneys-in-Fact or (ii) set-off any debts due to it by the Global
Coordinator, the Underwriters, the Company or the Attorneys-in-Fact,
the Selling Stockholders or the Attorneys-in-Fact by using the Escrow
Assets.
7. NO LIEN
7.1 Notwithstanding anything in this Agreement to the contrary, no pledge,
security interest or lien (or any other interest that would constitute
a Lien under and as defined in the indentures governing the Company's
10 1/4% Senior Notes due 2007, 11 1/4% Senior Discount Notes due 2007
and 11% Senior Discount Notes due 2007) shall be created or deemed to
be created by this Agreement, and any provision determined by a court
of competent jurisdiction after all appeals have been finally
determined to create any such interest shall be null and void, AB
INITIO and shall result in the actions required as if the Termination
Date had occurred under Section 4.5(ii). The Escrow Funds in the
Company Escrow Account are the general unsecured assets of the Company
available to its creditors in the event of an insolvency in accordance
with applicable insolvency laws.
8. FEES
The Company shall pay to the Escrow Agent the Escrow Agent fees in the
amount and in the manner set forth in a separate letter dated the date
hereof between the Company and the Escrow Agent.
9. AMENDMENT AND CANCELLATION
The Escrow Agent shall not be bound by any cancellation, waiver,
modification or amendment of this Agreement, including the transfer of
any interest hereunder, unless such modification is in writing and
signed by the Global Coordinator and the Company (and, to the extent
affected thereby, the Selling Stockholders) and, if the duties of the
Escrow Agent hereunder are affected, unless the Escrow Agent also shall
have given its written consent thereto.
10. PAYMENT
At any time the Escrow Agent is required to distribute or pay over any
amounts held by or received by it under any of the provisions of this
Agreement, such distribution and payment shall be notified to the
Escrow Agreement in accordance with the provisions of this Agreement,
provided however, that no notification is required for the Escrow Agent
to make such distributions and payments in accordance with Section
4.4(ii) and 4.5(ii).
11. NOTICES
All notices, objections and other communications hereunder shall be
given by telephone, fax or personal messenger and shall be deemed to
have been duly given when delivered as follows:
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If to the Escrow Agent:
ING Bank N.V. (Warsaw Branch)
Fax Number:
Attention:
If to the Company:
Netia Holdings S.A.
▇▇. ▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
Fax Number: (▇▇)-▇▇-▇▇▇-▇▇▇▇
Attention: Meir Srebernik
If to the Selling Stockholders:
Trefoil Capital Investors, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Shamrock Holdings Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax Number: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
If to the Global Coordinator:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ International
▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Fax Number: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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12. BINDING EFFECT; ASSIGNMENT; THIRD PARTY BENEFICIARIES
No party hereto may assign its rights and obligations hereunder without
the consent of the other parties. Subject to the foregoing, this
Agreement shall be binding upon or inure to the benefit of the parties
hereto and their respective heirs, executors, administrators,
successors and assigns. This Agreement is entered into for the benefit
of the parties hereto and the owners and beneficial owners of the
Shares and ADSs. This Agreement is not intended to, and shall not,
create any third party beneficiaries or rights in any other third
parties.
13. ENTIRE AGREEMENT
This Escrow Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereto and supersedes
all prior agreements and understandings (written or oral) of the
parties in connection herewith.
14. GOVERNING LAW AND JURISDICTION
14.1 GOVERNING LAW
This Escrow Agreement shall be governed by and construed in accordance
with Polish law.
14.2 JURISDICTION
In relation to any legal action or proceedings arising out of or in
connection with this Agreement ("PROCEEDINGS") each of the Company, the
Escrow Agent, each Selling Shareholder and each Attorney-in-Fact
irrevocably submits to the jurisdiction of the courts of Poland and
waives any objection to Proceedings in such courts whether on the
grounds that the Proceedings have been brought in an inconvenient forum
or otherwise. This submission is made for the benefit of the Global
Coordinator on behalf of each of the Underwriters and shall not affect
the right of any of them to take Proceedings in any other court of
competent jurisdiction nor shall the taking of Proceedings in any court
of competent jurisdiction preclude any of them from taking Proceedings
in any other court of competent jurisdiction (whether concurrently or
not).
14.3 OPTION TO ARBITRATE
Notwithstanding the preceding provisions of this Section 14, each of
the Company, each Selling Stockholder, each Attorney-in-Fact and the
Escrow Agent agrees that any disputes that may arise out of or in
connection with this Agreement (including any questions regarding its
existence, validity or termination) may, at the option of the Global
Coordinator on behalf of the Underwriters, with notice given to the
Company, the Escrow Agent, each Attorney-in-Fact and each Selling
Stockholders, be referred to and finally resolved by arbitration under
the rules of the London Court of International Arbitration, the rules
of which are deemed to be incorporated by reference into this
Agreement. The place of such arbitration shall be London and the
language English.
15. COUNTERPARTS
This Escrow Agreement may be executed in several counterparts or by
separate instruments, and all of such counterparts or instruments shall
constitute one agreement, binding on all the parties hereto.
-10-
Agreement as of the day and year first above written.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ INTERNATIONAL
as Global Coordinator
By:
------------------------------------
Name:
Title:
NETIA HOLDINGS S.A.
By:
------------------------------------
Name:
Title:
SHAMROCK HOLDINGS, INC.
By:
------------------------------------
Name:
Title:
TREFOIL CAPITAL INVESTORS, L.P.
By TREFOIL INVESTORS, INC., its General Partner
By:
------------------------------------
Name:
Title:
ING BANK N.V. (WARSAW BRANCH)
By:
------------------------------------
Name:
Title:
Escrow Agreement Signature Page(s)
MEIR SREBERNIK
as Attorney-in-Fact for each Selling Stockholder
pursuant to the Custody Agreement
By:
------------------------------------
Name:
Title: Attorney-in-Fact
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
as Attorney-in-Fact for each Selling Stockholder
pursuant to the Custody Agreement
By:
------------------------------------
Name:
Title: Attorney-in-Fact
Escrow Agreement Signature Page(s)
EXHIBIT A
ING RECEIPT OF FUNDS
ING BANK N.V. (WARSAW BRANCH)
--------------------
--------------------
POLAND
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ International
▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
The undersigned hereby acknowledges receipt from ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
International, ▇▇▇▇▇▇ Brothers International (Europe), Credit Suisse First
Boston (Europe) Limited, ABN AMRO Rothschild and Deutsche Bank AG London, as
representatives of the several underwriters named on Schedule I to the
Underwriting Agreement dated ____ _______ 1999, of wire transfers of immediately
available same-day funds, in the aggregate amount of $____________ in accordance
with the attached Funds Flow Memorandum.
ING BANK N.V. (WARSAW BRANCH)
By:
--------------------------
Name:
Title:
Date: ___ August 1999
A-1
EXHIBIT B
INVESTMENT INSTRUCTIONS
ING Bank N.V. (Warsaw Branch)
----------------
----------------
Poland
Netia Holdings S.A. and Meir Srebernik, as Attorney-in-Fact on behalf of each of
Shamrock Holdings Inc. and Trefoil Capital Investors L.P. (the "SELLING
STOCKHOLDERS") hereby instruct ING Bank N.V. (Warsaw Branch) (the "ESCROW
AGENT") to invest all funds deposited pursuant to the Escrow Agreement dated ___
August 1999 among ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ International, the Selling
Stockholders, the Escrow Agent, Meir Srebernik and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in the
Company Escrow Account and the Selling Stockholder Escrow Accounts (as
applicable and as defined in the Escrow Agreement) as follows:
[To Come]
NETIA HOLDINGS S.A.
By:
--------------------------------
Name:
Title:
MEIR SREBERNIK
as Attorney-in-Fact
on behalf of the Selling Stockholders
By:
--------------------------------
Name: Meir Srebernik
Title: Attorney-in-Fact
B-1
EXHIBIT C
CONFIRMATION OF DEPOSIT AND RECEIPT OF OPTION SHARES
__ _____ 1999
ING Barings (Warsaw Branch)
------------------
------------------
Poland
Ladies and Gentlemen:
In accordance with notice of an over-allotment option exercise pursuant to
Section 2 of the Underwriting Agreement, dated ___ July 1999, among Netia
Holdings S.A. (the "COMPANY"), the Selling Stockholders (as defined therein) and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ International, ▇▇▇▇▇▇ Brothers International
(Europe), Credit Suisse First Boston (Europe) Limited, ABN AMRO Rothschild and
Deutsche Bank AG London, as representatives of the several underwriters named on
Schedule I to the Underwriting Agreement, I do hereby deliver to ING Bank N.V.
(Warsaw Branch), acting as escrow agent pursuant to the Escrow Agreement dated
___ August 1999, certificates representing the aggregate number set forth below
of the Company's common shares, nominal value Pln 6.00 per share for deposit to
the Option Share Blocked Account (as defined in the Escrow Agreement) indicated
below.
Option Share Blocked Account Number of Option Shares
---------------------------- -----------------------
Shamrock Holdings Inc.
Trefoil Capital Investors, ▇.▇.
▇▇▇▇ SREBERNIK
as Attorney-in-Fact
on behalf of the Selling Stockholders
By:
---------------------------------
Name: Meir Srebernik
Title: Attorney-in-Fact
C-1
Confirmation of Deposit of Option Shares
__ _____ 1999
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ International
▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Netia Holdings S.A.
▇▇. ▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Attention: Meir Srebernik
We hereby certify that, pursuant to the Escrow Agreement dated ___ ________
1999, we have received and deposited the following shares in the Option Share
Blocked Account indicated below:
Option Share Blocked Account Number of Option Shares
---------------------------- -----------------------
Shamrock Holdings Inc.
Trefoil Capital Investors, L.P.
ING BANK N.V. (WARSAW BRANCH)
By:
---------------------------------
Name:
Title:
C-2
Confirmation of Deposit of Option Shares
EXHIBIT D
CERTIFICATE OF REGISTRATION IN COMPANY'S BOOKS
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ International
▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
ING Bank N.V. (Warsaw Branch)
------------------
------------------
Poland
Netia Holdings S.A. (the "COMPANY") hereby acknowledges that the [5,500,000 New
Shares/_____Option Shares] have been registered in the Company's books in the
name of Bank Polska Kasa Opleki S.A., the Custodian named in the Deposit
Agreement dated ___ ______ 1999 by and among the Company and the Bank of New
York. Evidence of such registration is attached hereto.
NETIA HOLDINGS S.A.
By:
-----------------------------
Name:
Title:
D-1
Certificate of Registration in Company Books
EXHIBIT E
CUSTODIAN'S CERTIFICATE
BANK POLSKA KASA OPLEKI S.A.
-----------------
-----------------
-----------------
___ ________ 1999
ING Bank N.V. (Warsaw Branch)
----------------
----------------
Poland
Ladies and Gentlemen:
The Undersigned hereby certifies that it is holding in the name of The Bank of
New York ("BONY") in a segregated account, __________ shares of nominal value
Pln 6.00 each of Netia Holdings S.A. (the "COMPANY"), for deposit under the
Deposit Agreement dated ___ August 1999 between the Company and BoNY, as
Depositary.
BANK POLSKA KASA OPIEKI S.A.
By:
-------------------------
Name:
Title:
E-1
Custodian's Certificate
EXHIBIT F
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ INTERNATIONAL
▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
FUNDS PAYABLE TO THE UNDERWRITERS FROM THE ESCROW ACCOUNT
___ August 1999
ING Bank N.V. (Warsaw Branch)
----------------
----------------
Poland
Ladies and Gentlemen:
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ International, ▇▇▇▇▇▇ Brothers International
(Europe), Credit Suisse First Boston (Europe) Limited), ABN AMRO Rothschild and
Deutsche Bank AG London, as representatives of the several underwriters named on
Schedule I to the Underwriting Agreement (collectively, the "UNDERWRITERS"),
hereby deliver an instruction to the Escrow Agent under the escrow agreement
(the "ESCROW AGREEMENT") dated ___ August 1999 among Netia Holdings S.A., ING
Bank N.V. (Warsaw Branch), ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ International as Global
Coordinator and the Selling Stockholders party to the Underwriting Agreement,
dated ___ July 1999, among the Company, the Selling Stockholders and the
Underwriters.
1. We hereby confirm that the commissions, fees and expenses for
which the Company has assumed responsibility pursuant to the
Underwriting Agreement are $_________.
2. We hereby confirm that the commissions, fees and expenses for
which the Shamrock Holdings Inc. has assumed responsibility
pursuant to the Underwriting Agreement are $_________.
3. We hereby confirm that the commissions, fees and expenses for
which the Trefoil Capital Partners, L.P. has assumed
responsibility pursuant to the Underwriting Agreement are
$_________.
4. We hereby confirm receipt of opinion required by Section
4.1(b) of the Escrow Agreement.
5. Upon satisfaction of the conditions in Section 4.2 of the
Escrow Agreement, such funds are to be wire transferred from
the relevant Escrow Account in immediately available funds to
the following account:
----------------------
----------------------
F-1
Funds Payable to Underwriters Letter
Please acknowledge receipt of this instruction by countersigning the
following page.
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ International
▇▇▇▇▇▇ Brothers International (Limited)
Credit Suisse First Boston (Europe) Limited
Abn Amro Rothschild
Deutsche Bank Ag London
By: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ INTERNATIONAL
By:
------------------------------------------
Name:
Title:
F-2
Funds Payable to Underwriters Letter
EXHIBIT G
DLJI CROSS RECEIPT
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ International, ▇▇▇▇▇▇ Brothers International
(Europe), Credit Suisse First Boston (Europe) Limited), ABN AMRO Rothschild and
Deutsche Bank AG London, as representatives of the several underwriters named on
Schedule I to the Underwriting Agreement (collectively, the "UNDERWRITERS"),
acknowledge receipt from ING Barings (Warsaw Branch) (the "ESCROW AGENT") of
$__________ representing payment in full of all commissions, fees and expenses
owed to the Underwriters by the Company and the Selling Stockholders,
respectively, for the purchase and sale of (i) 5,500,000 American Depositary
Shares (the "ADSs") representing the 5,500,000 shares the Common Shares of Netia
Holdings, S.A. (the "COMPANY"), nominal value Pln 6.00 per share (the "COMMON
SHARES") purchased by the Underwriters from the Company, and (ii) __________
ADSs representing the _________ shares of the Company's Common Shares purchased
by the Underwriters from the Selling Stockholders, in each case pursuant to the
Underwriting Agreement, dated ___ July 1999, among the Company, the Selling
Stockholders and the Underwriters.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ International
▇▇▇▇▇▇ Brothers International (Limited)
Credit Suisse First Boston (Europe) Limited
Abn Amro Rothschild
Deutsche Bank Ag London
By: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ INTERNATIONAL
By:
-------------------------------------------
Name:
Title:
G-1
DLJI Cross Receipt
The undersigned hereby acknowledges delivery to ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
International, on behalf of the Underwriters, of wire transfers of immediately
available same-day funds, in the aggregate amount of $___________ in accordance
with the attached Funds Flow Memorandum, representing payment in full of all
commissions, fees and expenses owed to the Underwriters pursuant to the
Underwriting Agreement.
ING BANK N.V. (WARSAW BRANCH)
By:
-----------------------------
Name:
Title:
Date: ___ ________ 1999
G-2
DLJI Cross Receipt
