EXECUTION COPY
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AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
among
INTERNATIONAL WIRELESS COMMUNICATIONS
PAKISTAN LIMITED
PAKISTAN WIRELESS HOLDINGS LIMITED
SOUTH ASIA WIRELESS COMMUNICATIONS
(MAURITIUS) LIMITED
and
VANGUARD PAKISTAN, INC.
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Dated as of August 13, 1997
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TABLE OF CONTENTS
Page
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1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Principles of Interpretation. . . . . . . . . . . . . . . . . . . 3
2. Business of the Company . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 PMCL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. Restrictions on Transfer of Shares. . . . . . . . . . . . . . . . . . . 4
3.1 Limitation on Transfer. . . . . . . . . . . . . . . . . . . . . . 4
3.2 Transfers in Compliance with Law. . . . . . . . . . . . . . . . . 4
3.3 Affiliate Transfers . . . . . . . . . . . . . . . . . . . . . . . 4
3.4 Right of First. . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.5 Veto Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4. Right of First Offer. . . . . . . . . . . . . . . . . . . . . . . . . . 7
5. First Option; IWC Option Shares; Second Option Shares . . . . . . . . . 8
5.1 Exercise of First Option. . . . . . . . . . . . . . . . . . . . . 8
5.2 IWC Option. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.3 SA Put Right. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.4 Closing of IWC Option or SA Put Right . . . . . . . . . . . . . . 9
5.5 Second Option . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6. Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.2 Shareholder Votes . . . . . . . . . . . . . . . . . . . . . . . . 11
6.3 Board of Directors. . . . . . . . . . . . . . . . . . . . . . . . 12
6.4 Board Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.5 PMCL Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.6 PMCL Affairs. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.7 Management of PMCL. . . . . . . . . . . . . . . . . . . . . . . . 15
6.8 Non-Competition . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.9 Deadlock with Respect to PMCL . . . . . . . . . . . . . . . . . . 16
6.10 Directors' Access . . . . . . . . . . . . . . . . . . . . . . . . 16
7. Financial Reports and Auditing. . . . . . . . . . . . . . . . . . . . . 16
7.1 Right of Inspection . . . . . . . . . . . . . . . . . . . . . . . 16
7.2 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . 16
7.3 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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7.4 PMCL Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8. Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.1 Additional Capital Contributions; Shareholder Loans . . . . . . . 17
8.2 Failure to Subscribe for Additional Shares or Provide Shareholder
Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.3 Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.4 Divestment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.5 Dilution of Breaching Shareholder . . . . . . . . . . . . . . . . 20
9. Memorandum and Articles of Association. . . . . . . . . . . . . . . . . 21
10. Representations and Warranties. . . . . . . . . . . . . . . . . . . . . 21
11. Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
12. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
12.1 General Obligation. . . . . . . . . . . . . . . . . . . . . . . . 22
12.2 Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
12.3 Disclosure to Third Parties . . . . . . . . . . . . . . . . . . . 22
13. Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
14. U.S. Investment Company Act of 1940 . . . . . . . . . . . . . . . . . . 23
15. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
15.1 Legend. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
15.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
15.3 Discrepancies . . . . . . . . . . . . . . . . . . . . . . . . . . 24
15.4 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . 25
15.5 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . 25
15.6 Term of Agreement . . . . . . . . . . . . . . . . . . . . . . . . 25
15.7 Amendment and Waiver. . . . . . . . . . . . . . . . . . . . . . . 25
15.8 Consent to Specific Performance . . . . . . . . . . . . . . . . . 25
15.9 Assignment; Binding on Transferee . . . . . . . . . . . . . . . . 25
15.10 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . 25
15.11 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
15.12 Shareholder Obligations; Further Assurances . . . . . . . . . . . 26
15.13 Exercise of Rights And Performance of Duties by IWC Group . . . . 26
15.14 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
15.14 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Annex A: Pro Rata Share of Capital Contributions and Shareholder Loans to
be made to PMCL
Exhibit A: Form of Deed of Adherence
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AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT, dated as of August 13,
1997 (this "Agreement"), among INTERNATIONAL WIRELESS COMMUNICATIONS PAKISTAN
LIMITED, a Mauritius company with its registered offices at P.O. Box 1130, 3rd
Floor, 00 Xxxx Xxxxxx Xxxxxx, Xxxx Xxxxx, Mauritius (the "Company"), PAKISTAN
WIRELESS HOLDINGS LIMITED, a Mauritius corporation and wholly owned subsidiary
of International Wireless Communications, Inc. with its principal offices at 000
Xxxxx Xx Xxxxxx Xxxx, Xxx Xxxxx, XX 00000, X.X.X. ("IWC"), VANGUARD PAKISTAN,
INC., a Delaware corporation with its principal offices at 0000 Xxxxxx Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 U.S.A. ("Vanguard") and SOUTH ASIA
WIRELESS COMMUNICATIONS (MAURITIUS) LIMITED, a Mauritius corporation with its
address for correspondence at c/o Asian Infrastructure Fund Advisers Limited,
Xxxxx 0000-00, Xxxx Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx ("SA Wireless").
As of the date of this Agreement, the authorized share capital of the
Company is US$77,000,000, comprised of 100,000,000 ordinary shares, nominal
value US$0.01 each ("Ordinary Shares") and 76,000,000 redeemable preference
shares, nominal value US$1.00 each ("Redeemable Preference Shares", and together
with the Ordinary Shares, the "Shares").
The Company has issued and allotted to IWC, and IWC has subscribed
for, 23,620,000 Shares, comprised of 2,000 Ordinary Shares and 23,620,000
Redeemable Preference Shares, and the Company has issued and allotted to SA
Wireless, and SA Wireless has subscribed for, 23,622,000 Shares comprised of
2,000 Ordinary Shares and 23,622,000 Redeemable Preference Shares, and the
Company has issued and allotted to Vanguard, and Vanguard has subscribed for
7,086,600 Shares, comprised of 600 Ordinary Shares and 7,086,600 Redeemable
Preference Shares.
The parties have agreed to enter into this Shareholders' Agreement to
provide for certain matters relating to the transfer of Shares and the
management and operation of the Company, IWC and Vanguard have entered into an
agreement dated as of August __, 1997 (the "IWC/Vanguard Agreement") with
respect to exercising certain rights and performing certain duties under this
Agreement. The IWC/Vanguard Agreement also provides for the creation of a
voting trust whereby IWC will vote all Shares held by Vanguard.
In consideration of the foregoing and of the mutual covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
1.1. CERTAIN DEFINITIONS. The following capitalized terms shall
have the following meanings for purposes of this Agreement:
"AFFILIATE" means, in relation to any Shareholder or in relation to
IWC Group, IWC or Vanguard, a Person controlling, controlled by or under common
control with such Shareholder. For purposes of this Agreement, "control" means
the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"AIF" means the Asian Infrastructure Fund.
"BOARD" means the board of directors of the Company.
"BUSINESS DAY" means any day (excluding Saturday and Sunday) on which
banks in the State of New York, USA, Hong Kong and Mauritius are open for
business.
"CHARTER DOCUMENTS" means, collectively, the Memorandum of Association
and the Articles of Association of the Company.
"DIRECTOR" means a director of the Company (including any duly
appointed alternate director).
"FINANCIAL YEAR" means the financial year of the Company, which shall
end on December 31.
"IWC GROUP" means IWC and Vanguard, together as a single group.
"LENDERS" means the Lenders named in the Loan Agreement dated
August 18, 1997 among IWC and the Lenders named therein whereby IWC will obtain
funds to subscribe for Shares, which IWC hereby represents are all existing
shareholders of International Wireless Communications Holdings, Inc. ("IWCH"),
Affiliates of such shareholders or employees or directors of International
Wireless Communications, Inc.
"PERSON" means any natural person, corporation, partnership, firm,
joint venture, association, joint stock company, trust, unincorporated
association, governmental authority or other legal entity.
"PMCL" means Pakistan Mobile Communications (Pvt.) Limited, a company
incorporated under the laws of Pakistan.
"PMCL LETTER AGREEMENT" means the Letter Agreement dated August 1997
among the Shareholders of PMCL relating to its five year business plan, debt to
equity ratio, recapitalization and certain other matters.
"SECURITIES" means shares in the share capital of the Company and any
options, warrants or other securities that are directly or indirectly
convertible into, or exercisable or exchangeable for, such share capital.
"SECURITY DOCUMENTS" means the Security Agreement and the Pledge
Agreement, each dated August 18, 1997, between IWC and Toronto Dominion
Investments, Inc to secure IWC's obligations under the Loan Agreement dated
August 18, 1997 among IWC and the Lenders named therein.
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"SHAREHOLDER" means (i) each of IWC and SA Wireless for so long as
such Shareholder remains a shareholder of the Company, and (ii) any other Person
who becomes a shareholder of the Company in accordance with the terms of this
Agreement and executes a Deed of Adherence substantially in the form attached
hereto as Exhibit A, for so long as such Person remains a shareholder of the
Company.
"SUBSIDIARY" means any corporation, partnership or other entity in
which the Company directly or indirectly holds a majority interest in the form
of shares, membership, partnership interests or otherwise.
"US DOLLARS" or "US$" means United States dollars, the lawful currency
of the United States of America.
1.2. PRINCIPLES OF INTERPRETATION.
(a) Any reference herein to any Article, Section or Exhibit
shall refer to such Article or Section of, or Exhibit to, this Agreement. The
words "herein," "hereof" and "hereunder," and words of like import, shall refer
to this Agreement as a whole and not to any particular provision hereof.
(b) All pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the antecedent Person may require.
(c) The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the interpretation of
this Agreement.
2. BUSINESS OF THE COMPANY.
2.1. GENERAL. The business of the Company shall be restricted to
its holding of shares in the capital of PMCL. Unless the Shareholders
unanimously agree, the Company shall not form or establish any other
Subsidiaries.
2.2. PMCL.
(a) The Company has entered into separate share purchase
agreements with Motorola International Development Corporation ("Motorola") and
Continental Communications Limited to acquire, in the aggregate, a 46% interest
in PMCL. Under the share purchase agreement entered by and between the Company
and Motorola (the "Motorola Share Purchase Agreement"), (i) Motorola has granted
an option to the Company to acquire up to a further 12.69% interest in PMCL from
Motorola (the "First Option") and (ii) if the First Option is not exercised,
then the Company has an option (the "Second Option") to purchase from Motorola
the Second Option Shares (as defined in the Motorola Share Purchase Agreement).
(b) At the closing of the transactions contemplated by the
Motorola Share Purchase Agreement, the Company will enter into a Shareholders
Agreement
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with the other shareholders of PMCL relating to certain rights and obligations
of the shareholders of PMCL (the "PMCL Shareholders Agreement").
3. RESTRICTIONS ON TRANSFER OF SHARES.
3.1. LIMITATION ON TRANSFER. No Shareholder shall sell, give,
transfer, assign, charge, mortgage, hypothecate, pledge, encumber, grant a
security interest in or otherwise dispose of (whether by operation of law or
otherwise) (each, a "Transfer") any Securities, or any right, title or interest
therein or thereto, except as expressly permitted by this Article 3. Any
attempt to Transfer any Securities or any rights therein or thereto in violation
of this Article 3 shall be null and void AB INITIO, and the Company shall not
register any such Transfer.
3.2. TRANSFERS IN COMPLIANCE WITH LAW. Notwithstanding any other
provision of this Agreement, no Transfer may be made pursuant to this Article 3
unless (a) the transferee has agreed in writing to be bound by the terms and
conditions of this Agreement pursuant to a Deed of Adherence substantially in
the form attached hereto as Exhibit A, (b) the transferee assumes all
shareholder loans that have been made by the transferor to the Company on or
prior to the Transfer, (c) the Shareholder wishing to Transfer all or any
portion of its Ordinary Shares to a transferee also Transfers all or an
equivalent percentage, as the case may be, of its Redeemable Preference Shares
to such transferee, (d) the Shareholder wishing to Transfer all or any portion
of its Redeemable Preference Shares to a transferee also Transfers all or an
equivalent percentage, as the case may be, of its Ordinary Shares to such
transferee, (e) the Transfer complies in all respects with the applicable
provisions of this Agreement and (f) the Transfer complies in all respects with
applicable securities laws. If requested by the Company in its reasonable
discretion, an opinion of counsel to such transferring Shareholder shall be
supplied to the Company, at such transferring Shareholder's expense, to the
effect that such Transfer complies with applicable securities laws.
3.3. AFFILIATE TRANSFERS.
3.3.1 PERMITTED TRANSFEREES. Any Shareholder may
Transfer some or all of the Securities held by such Shareholder to an Affiliate
of such Shareholder without compliance with the provisions of Section 3.4;
provided that the Shareholder shall remain liable for any and all of its
obligations under this Agreement and that the Affiliate executes a deed of
adherence substantially in the form attached hereto as Exhibit A.
3.3.2 CHANGE IN STATUS. If Securities are Transferred
by a Shareholder to an Affiliate of such Shareholder and such transferee shall
at any time cease to be an Affiliate of such Shareholder, such Shareholder shall
notify the other Shareholders of such an event within five Business Days after
the occurrence of such an event, and such Securities shall be transferred
(i) back to the original Shareholder or (ii) to another Affiliate of that
Shareholder without compliance with the provisions of Section 3.4.
3.3.3 COMBINED HOLDINGS. The Securities held by a
Shareholder and such Shareholder's Affiliates shall for all purposes of this
Agreement be treated as Securities held by a single Shareholder.
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3.3.4 IWC TRANSFERS. Notwithstanding the foregoing,
(a) IWC may from time to time Transfer Securities to the Lenders pursuant to the
Security Documents, without compliance with the provisions of Section 3.3.2,
3.3.3 or 3.4, provided that Section 3.2 (other than clause (b)) is complied with
and the Lenders receiving Securities sign a deed of adherence substantially in
the form attached hereto as Exhibit A, and (b) members of the IWC Group may from
time to time Transfer Securities between them pursuant to the IWC/Vanguard
Agreement, without compliance with the provisions of Section 3.3.2, 3.3.3 or
3.4, but so long as Section 3.2 is complied with.
3.4. RIGHT OF FIRST. Each Shareholder (each, a "Transferor") who
proposes to Transfer Securities to a BONA FIDE third party (a "Third Party
Purchaser") other than pursuant to Section 3.3, grants to each other Shareholder
(a "Section 3.4 Rightholder") a right of first refusal ("Right of First
Refusal") to purchase such Section 3.4 Rightholder's pro-rata share of the
Transferor's Securities, exercisable at the option of each Section 3.4
Rightholder in accordance with Section 3.4(b).
(a) Each Transferor shall furnish to each Section 3.4
Rightholder written notice (the "Transferor Notice") of the intended
disposition, including the identity of the Third Party Purchaser, the number of
Securities to be Transferred (the "Offered Securities"), the price at which the
Securities are proposed to be Transferred and the general terms upon which such
Transfer is proposed to be made.
(b) Subject to Sections 3.4(c) and 3.4(d), each Section 3.4
Rightholder shall have 21 calendar days (the "Notice Period") after the receipt
of the Transferor Notice to agree irrevocably to purchase up to its pro-rata
share of the Offered Securities for the price and upon the general terms
specified in the Transferor Notice by giving written notice to the Transferor
and stating therein the quantity of the Offered Securities to be purchased (each
such Section 3.4 Rightholder exercising such right being referred to herein as a
"Section 3.4 Purchaser"). A Section 3.4 Rightholder exercising its rights
hereunder with respect to all or a portion of the Ordinary Shares to be
Transferred by the Transferor shall exercise its rights hereunder with respect
to all or an equivalent percentage, as the case may be, of the Redeemable
Preference Shares to be Transferred by the Transferor. A Section 3.4
Rightholder exercising its rights hereunder with respect to all or a portion of
the Redeemable Preference Shares to be Transferred by the Transferor shall
exercise its rights hereunder with respect to all or an equivalent percentage,
as the case may be, of the Ordinary Shares to be Transferred by the Transferor.
Failure by a Section 3.4 Rightholder to respond within such Notice Period shall
be regarded as a waiver of its Right of First Refusal with respect to the
Transfer of the Offered Securities.
(c) Each Transferor shall, promptly after the end of the
Notice Period, give written notice (the "Last-Chance Notice") to all Section 3.4
Rightholders stating whether the Offered Securities have been taken up by the
Section 3.4 Purchasers, and, if not, the number of Offered Securities not so
taken up (the "Remaining Offered Securities"). Subject to Section 3.4(d), each
Section 3.4 Purchaser shall have the right, but not the obligation, to purchase
all, but not less than all, of the Remaining Offered Securities. The right of
each Section 3.4
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Purchaser to purchase the Remaining Offered Securities shall be exercisable
irrevocably by written notice delivered to each Transferor, with a copy to the
Company, given within ten calendar days (the "Last Chance Period") after receipt
of the Last-Chance Notice. If more than one Section 3.4 Purchaser timely elects
to exercise its right to purchase the Remaining Offered Securities, the right to
purchase the Remaining Offered Securities shall be allocated pro rata among
those Section 3.4 Purchasers electing to purchase the Remaining Offered
Securities, based on the proportion that the number of Securities owned by such
Section 3.4 Purchaser bears to the total number of Securities owned by all
Section 3.4 Purchasers that elect to purchase the Remaining Offered Securities.
A Section 3.4 Rightholder exercising its rights hereunder with respect to all or
a portion of the Ordinary Shares that are Remaining Offered Securities shall
exercise its rights hereunder with respect to all or an equivalent percentage,
as the case may be, of the Redeemable Preference Shares that are Remaining
Offered Securities. A Section 3.4 Rightholder exercising its rights hereunder
with respect to all or a portion of the Redeemable Preference Shares that are
Remaining Offered Securities shall exercise its rights hereunder with respect to
all or an equivalent percentage, as the case may be, of the Ordinary Shares that
are Remaining Offered Securities. A failure of any Section 3.4 Purchaser to
exercise such right within the Last Chance Period shall be regarded as a waiver
of its right to purchase such Remaining Offered Securities as provided herein.
(d) Notwithstanding anything in this Article 3 to the
contrary, the right of the Section 3.4 Purchasers to purchase any of the Offered
Securities pursuant to this Article 3 shall be exercisable if and only if the
Section 3.4 Purchasers collectively have exercised their rights to purchase all,
but not less than all, of the Offered Securities pursuant to this Section 3.4.
Any exercise by any Shareholder of a Right of First Refusal pursuant to this
Section 3.4 shall be final and irrevocable.
(e) If the Section 3.4 Purchasers collectively have
exercised their Rights of First Refusal with respect to all of the Offered
Securities, then the closing of such sale and purchase shall take place promptly
after the final allocation with respect to such Offered Securities has been
determined, at the principal offices of the Company or such other place and time
as the relevant parties may agree. If the Section 3.4 Purchasers collectively
have not exercised their Rights of First Refusal with respect to all of the
Offered Securities, then the Transferor shall have 120 calendar days after the
end of the Last Chance Period to make the Transfer of the Offered Securities to
the Third Party Purchaser at the price and upon the terms specified in the
Transferor Notice. In the event the Transferor does not Transfer such
Securities to the Third Party Purchaser within such 120-day period, the
Transferor shall not thereafter make a Transfer of such Offered Securities
without again complying with the Right of First Offer provisions in this
Section 3.4.
(f) The exercise or non-exercise of the Right of First
Refusal by a Section 3.4 Rightholder with respect to a Transfer of Securities by
a Transferor shall not affect such Section 3.4 Rightholder's Right of First
Refusal with respect to subsequent Transfers of Securities.
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(g) A change in the beneficial ownership of any Shareholder
or any Person that controls a Shareholder shall not constitute a Transfer of
Securities that causes the Right of First Refusal to arise hereunder so long as
such Shareholder's ownership interest in the Company does not constitute the
primary asset of such Shareholder or other Person in respect of which such
change in beneficial ownership occurs.
3.5. VETO RIGHTS. If a Shareholder proposes to Transfer
Securities to a Third Party Purchaser that is engaged in a business directly
competing with that of the Company or PMCL at the time of the proposed Transfer,
non-Transferring Shareholders holding in the aggregate at least 25% of the
issued Shares shall each have the right to prohibit such Transfer,
notwithstanding compliance by the Transferor with Section 3.4. For the
avoidance of doubt, this provision shall not apply to Transfers made pursuant to
Section 3.3.1 or 3.3.4.
4. RIGHT OF FIRST OFFER. Except as provided in Articles 5 and 8,
the Company hereby grants to each Shareholder a right of first offer ("Right of
First Offer") to subscribe for such Shareholder's pro-rata share of any New
Securities (as defined in Section 4(e) below) that the Company may from time to
time propose to issue, and the provisions of this Article 4 shall apply to such
issuances.
(a) In the event that the Company proposes to undertake an
issuance of New Securities, the Company shall give written notice (the "Company
Notice") of its intention to so issue such New Securities to each Shareholder.
The Company Notice shall include the type and number of such New Securities, the
price and the general terms upon which such New Securities are proposed to be
issued, the number of such New Securities for which each Shareholder is entitled
to subscribe pursuant to this Article 4 and the identity of the Person(s) to
whom such New Securities are proposed to be issued (the "Proposed Acquirers").
(b) Each Shareholder shall have 28 calendar days after the
receipt of the Company Notice to agree irrevocably to subscribe for up to its
pro-rata share of such New Securities for the price and upon the general terms
specified in the Company Notice by giving written notice to the Company and
stating therein the number of New Securities for which such Shareholder shall
subscribe. If any Shareholder fails to exercise or waives its Right of First
Offer hereunder (a "Non-Exercising Shareholder"), the Company shall give notice
to all Shareholders who do exercise their Right of First Offer (the "Exercising
Shareholders") of such failure or waiver.
(c) Each Exercising Shareholder shall have a right of over
allotment to subscribe for up to its pro-rata portion of any New Securities not
subscribed for by a Non-Exercising Shareholder hereunder. Each Exercising
Shareholder may exercise irrevocably such right of over allotment by giving
written notice to the Company within 28 calendar days of receipt of the notice
of non-exercise or waiver from the Company described in Section 4(b) and stating
therein the number of New Securities for which such Exercising Shareholder shall
subscribe. Upon exercises of the Right of First Offer hereunder in connection
with any proposed issuance of New Securities, the Company shall simultaneously
issue such New Securities pursuant to such exercises at such time and place as
the Company shall determine. Any exercise
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by any Shareholder of a right of subscription pursuant to this Article 4 shall
be final and irrevocable.
(d) If the Shareholders waive or fail to exercise in full
the Right of First Offer set forth in Sections 4(b) and (c) with respect to
all of the New Securities within the above-mentioned time periods, then the
Company shall have 120 calendar days thereafter to sell any New Securities
with respect to which the Shareholders did not exercise their Right of First
Offer at a price and upon general terms no more favorable to the Proposed
Acquirers than those specified in the Company Notice. In the event the
Company does not sell the New Securities within such 120-day period, the
Company shall not thereafter issue or sell such New Securities without first
offering such New Securities to the Shareholders in accordance with this
Article 4.
(e) For the purposes of this Article 4, the term "New
Securities" shall mean any Securities, whether now authorized or authorized
in the future, that are offered for subscription or sale by the Company.
(f) The exercise or non-exercise of the Right of First
Offer by a Shareholder hereunder with respect to an issuance of New
Securities shall not affect such Shareholder's Right of First Offer with
respect to subsequent issuances of New Securities.
(g) Any Proposed Acquirer to whom New Securities are
issued pursuant to this Article 4 shall become a party to and shall be bound
by the restrictions on Transfer and the other restrictions and obligations
set forth in this Agreement to the same extent and with the same force and
effect as if such person were an original signatory hereto. Each Proposed
Acquirer shall, as a condition to subscribing for such New Securities,
execute a Deed of Adherence substantially in the form of Exhibit A upon or
before the consummation of the issuance of such New Securities.
5. FIRST OPTION; IWC OPTION SHARES; SECOND OPTION SHARES.
5.1. EXERCISE OF FIRST OPTION. The parties hereto agree and
acknowledge that the decision to exercise the First Option shall be made by SA
Wireless. If SA Wireless wishes to exercise the First Option, it shall notify
the other Shareholders and the Company, and each Shareholder shall cause the
Company to exercise the First Option in accordance with the provisions of
Clauses 9(a) to (d) of the Motorola Share Purchase Agreement. The parties agree
that the cost of the acquisition of the First Option Shares (as defined in the
Motorola Share Purchase Agreement) shall be funded entirely by SA Wireless
through the subscription by SA Wireless of new Shares at an aggregate
subscription price equal to the amount of the First Option Purchase Price (as
defined in the Motorola Share Purchase Agreement). The number of new Shares to
be issued to SA Wireless for this purpose shall be such number of Shares as to
cause IWC Group and SA Wireless to have a shareholding in the Company
immediately prior to or concurrently with the First Option Closing (as defined
in the Motorola Share Purchase Agreement) of 44.3% and 55.7%, respectively.
8
5.2. IWC OPTION.
(a) SA Wireless hereby irrevocably and unconditionally
grants an option to IWC (the "IWC Option"), effective upon the exercise of the
First Option, exercisable on one occasion only at any time in the 12 month
period commencing from January 1, 1998 (the "IWC Option Period") to purchase
from SA Wireless such number of Shares held by SA Wireless so as to enable IWC
to have a shareholding in the Company of 50.01% (the "IWC Option Shares") on the
terms and subject to the conditions of this Section 5.2 and Section 5.4;
PROVIDED, HOWEVER, that notwithstanding the foregoing, IWC may exercise the IWC
Option on one occasion at any time prior to the commencement of the IWC Option
Period if it pays to SA Wireless the IWC Option Share Price (as defined in
Section 5.4(a)) calculated as if the IWC Option had been exercised as of January
1, 1998.
(b) Subject to this Section 5.2 and Section 5.4, IWC Group
may, at any time during the IWC Option Period, exercise the IWC Option by
serving on SA Wireless written notice of such exercise. The notice of exercise
of the IWC Option once served shall be irrevocable and binding on IWC Group and
may not be withdrawn without the prior written consent of SA Wireless.
5.3. SA PUT RIGHT.
(a) SA Wireless shall have the right (the "SA Put Right"),
effective upon the exercise of the First Option, exercisable on one occasion
only at any time in the 12 month period commencing from January 1, 1998 (the "SA
Put Period") and so long as the IWC Option has not theretofore been exercised,
to sell the IWC Option Shares to IWC, and IWC shall be obligated to purchase the
IWC Option Shares from SA Wireless on the terms and subject to the conditions of
this Section 5.3 and Section 5.4.
(b) Subject to this Section 5.3 and Section 5.4, SA
Wireless may, at any time during the SA Put Period and so long as the IWC Option
has not theretofore been exercised, exercise the SA Put Right by serving on IWC
written notice of such exercise. The notice of exercise of the SA Put Right
once served shall be irrevocable and binding on SA Wireless and may not be
withdrawn without the prior written consent of IWC.
5.4. CLOSING OF IWC OPTION OR SA PUT RIGHT.
(a) The purchase price (the "IWC Option Share Price")
payable by IWC Group for the IWC Option Shares, whether pursuant to the exercise
of the IWC Option under Section 5.2 or the exercise of the SA Put Right under
Section 5.3, shall be the sum of the amounts that have been paid by the Company
in respect of the underlying shares of PMCL that are attributable and correspond
to the IWC Option Shares (the "Underlying PMCL Shares") by way of the original
Purchase Price (as defined in the Motorola Share Purchase Agreement) per share
of the Underlying PMCL Shares, any amounts funded by the Company as additional
capital contributions or shareholder loans to PMCL in respect of the Underlying
PMCL Shares, the amounts of any loans that the Company may have made to Saif
Telecom (Pvt.) Limited, a shareholder of PMCL ("SAIF"), to enable SAIF to
respond to any shareholder loans to, or any
9
capital call of, PMCL which are attributable to the Underlying PMCL Shares and
the pro rata share based on the percentage of the IWC Option Shares to the total
issued Shares of the fees, costs and expenses of third party advisers and
consultants engaged on behalf of the Company in connection with evaluating the
proposed acquisition of shares in PMCL and of any fees (if any) required to have
been paid in connection with the consummation of the acquisition by the Company
of shares in PMCL (such amounts, collectively, the "Actual Investment Cost"),
plus a return in United States dollars terms on the Actual Investment Cost
calculated at a rate equal to 40% internal rate of return. The calculation of
the internal rate of return shall be made with respect to each separate amount
that constitutes the Actual Investment Cost commencing on the date each such
separate amount was paid by the Company in respect of the Underlying PMCL
Shares. For the purposes of this Section 5.4(a), "internal rate of return"
means the discount rate which, when applied, constitutes the present value, as
of the date of closing of the sale and purchase of the IWC Option Shares, of the
Actual Investment Cost that is equal to the present value, as of the date of the
closing of the sale and purchase of the IWC Option Shares, of all the proceeds
generated from the Actual Investment Cost.
(b) Following the exercise of the IWC Option in accordance
with Section 5.2 or the exercise of the SA Put Right in accordance with Section
5.3, the closing of the sale and purchase of the IWC Option Shares shall take
place at the principal offices of the Company or such other place as IWC and SA
Wireless mutually agree on the seventh Business Day after the date of the
exercise of the IWC Option or the SA Put Right, as the case may be. At the
closing, (i) SA Wireless shall deliver share certificates to IWC totalling the
number of the IWC Option Shares, together with instruments of transfer in
respect thereof, and (ii) IWC shall pay the IWC Option Share Price in cash by
wire transfer of immediately available funds to the bank account designated by
SA Wireless in writing.
5.5. SECOND OPTION If the First Option is not exercised and the
provisions of Clause 9 of the Motorola Share Purchase Agreement relating to the
Second Option apply, the parties hereto agree and acknowledge that the decision
to exercise the Second Option shall be made by IWC Group. If IWC Group wishes
to exercise the Second Option, it shall notify the other Shareholders and the
Company, and each Shareholder shall cause the Company to exercise the Second
Option in accordance with the provisions of Clauses 9(e) to (h) of the Motorola
Share Purchase Agreement. The parties agree that the cost of the acquisition of
the Second Option Shares shall be funded entirely by IWC Group through the
subscription by IWC Group of new Shares at an aggregate subscription price equal
to the amount of the Second Option Purchase Price (as defined in the Motorola
Share Purchase Agreement). The number of new Shares to be issued to IWC Group
for this purpose shall be such number of Shares as to cause IWC Group and SA
Wireless to have a shareholding in the Company immediately prior to or
concurrently with the closing of the sale and purchase of the Second Option
Shares of 60.8% and 39.2%, respectively.
6. MANAGEMENT.
6.1. GENERAL. From and after the date hereof, each Shareholder
shall vote its Shares at any ordinary general meeting or extraordinary general
meeting of Shareholders
10
(a "Shareholders' Meeting") or in any written resolution executed in lieu of
such a meeting of Shareholders (a "Written Resolution"), and shall take all
other actions necessary, to give effect to the provisions of this Agreement
(including, without limitation, Section 6.3.2) and to ensure that the Charter
Documents do not, at any time hereafter, conflict in any respect with the
provisions of this Agreement. In addition, each Shareholder shall vote its
Shares at any Shareholders' Meeting, or act by Written Resolution with respect
to such Shares, upon any matter submitted for action by the Shareholders or with
respect to which such Shareholder may vote or act by Written Resolution, in
conformity with the specific terms and provisions of this Agreement and the
Charter Documents.
6.2. SHAREHOLDER VOTES.
(a) The following matters in relation to the Company shall
require the unanimous consent of all of the Shareholders owning 90% of the
Shares in a Written Resolution or the unanimous consent of representatives of
all of the Shareholders present at a duly convened Shareholders' Meeting:
(i) any amendment, modification or waiver of the
Charter Documents;
(ii) the formation or establishment of any Subsidiary;
(iii) any change to the scope of business of the
Company or any Subsidiary;
(iv) any sale or other disposition of all or
substantially all of the assets of the Company or any Subsidiary;
(v) the liquidation, winding up or dissolution of
the Company, the making or entry into by the Company of any general assignment,
arrangement or composition with or for the benefit of its creditors, or the
cessation by the Company to carry on its business or any material part of its
business;
(vi) the settlement, waiver or discontinuance of any
litigation or arbitration proceedings involving a claim exceeding the equivalent
of US$500,000 per claim and US$1,000,000 in the aggregate in any financial year
or the commencement of any litigation or arbitration proceedings involving a
claim exceeding the equivalent of US$500,000;
(vii) any merger, amalgamation or consolidation of
the Company or any Subsidiary with any other entity;
(viii) issuance of any Securities of the Company or
any Subsidiary other than pursuant to Articles 5 and 8;
(ix) the acquisition or disposition of any material
assets by the Company or any Subsidiary other than in the ordinary course of
business;
11
(x) any of the matters referred to in the PMCL
Shareholders Agreement that require a Supermajority (as defined therein) vote of
the board of directors of PMCL (the "PMCL Board") or the shareholders of PMCL;
(xi) any decision of the Company with respect to the
(i) making of additional capital contributions to PMCL pursuant to Clause 9.2 of
the PMCL Shareholders Agreement, (ii) making of shareholder loans to PMCL
pursuant to Clause 9.3 of the PMCL Shareholders Agreement, (iii) making of
shareholder guarantees for the obligations of PMCL pursuant to Clause 9.4 of the
PMCL Shareholders Agreement, and (iv) taking action pursuant to Paragraph 6 of
the PMCL Letter Agreement; and
(xii) other than pursuant to Section 6.9 or 8.4, any
decision of the Company with respect to the sale or other disposition of all or
a part of its shares in PMCL or the exercise of rights of first refusal to
acquire shares of PMCL pursuant to Clause 12 of the PMCL Shareholders Agreement
or the exercise of rights to acquire shares of a defaulting shareholder of PMCL
pursuant to Clause 16.5 of the PMCL Shareholders Agreement.
(b) Notwithstanding the provisions of Section 6.2(a)(vi),
where litigation or arbitration proceedings are or are proposed to be brought by
or against the Company against or by any Shareholder or any Affiliate of any
Shareholder, irrespective of the amount involved, such Shareholder, and the
Directors appointed by such Shareholder to the Board, shall have no vote in
determining whether such litigation or arbitration proceedings shall be
commenced, settled or discontinued or how the same shall be conducted.
(c) Any decision of the Company to exercise its right to
postpone the Closing (as defined in the Motorola Share Purchase Agreement) of
the transactions contemplated by the Motorola Share Purchase Agreement pursuant
to Clause 11 thereof or to terminate the Motorola Share Purchase Agreement prior
to the Closing (as defined therein) pursuant to Clause 12 thereof may be made by
SA Wireless by notice to the other Shareholders, whereupon all of the
Shareholders shall cause the Company to postpone the Closing or terminate the
Motorola Share Purchase Agreement in accordance with the provisions of Clause 11
or 12, respectively, thereof.
6.3. BOARD OF DIRECTORS.
6.3.1 AUTHORITY OF BOARD. Subject only to the
provisions of this Agreement and the Charter Documents, the Board shall have
ultimate responsibility for management and control of the Company.
6.3.2 NUMBER AND COMPOSITION. The number of members
constituting the entire Board shall be six; PROVIDED, HOWEVER, that if the
Second Option is exercised and IWC funds the purchase by the Company of the
Second Option Shares pursuant to Section 5.3, then the number of members
constituting the Board shall be reduced to five. Each Shareholder shall vote
its Shares at any Shareholders' Meeting called for the purpose of filling the
positions on the Board or in any Written Resolution executed for such purpose to
elect, and shall take all other actions necessary to ensure the election to the
Board of initially, (i) three
12
nominees of IWC and (ii) three nominees of SA Wireless, and if the number of
members constituting the Board is reduced to five as provided in the proviso to
the first sentence of this Section 6.3.2, then (i) three nominees of IWC and
(ii) two nominees of SA Wireless. Each Shareholder who has a right to nominate
a director (a "Nomination Right") pursuant to this Section 6.3.2 shall not be
permitted to transfer its Nomination Right in connection with any Transfer of
its Securities without the prior written consent of all other Shareholders who
have Nomination Rights at the time of such Transfer.
6.3.3 REMOVAL AND REPLACEMENT OF DIRECTORS.
(a) A Director shall be removed from the Board, with
or without cause, upon, and only upon, the affirmative vote of the Shareholders
in accordance with this Section 6.3.3. Each Shareholder shall vote its Shares
for the removal of a Director upon the request of the Shareholder that nominated
such Director. Otherwise, no Shareholder shall vote for the removal of a
Director.
(b) In the event any Director resigns or is removed in
accordance with Section 6.3.3(a), the Shareholders shall, before the transaction
of any other business by the Shareholders or the Board, elect a successor or
replacement nominated by the Shareholder that nominated such Director. Such
successor or replacement Director shall be elected on or as soon as possible
after the date of such resignation or removal.
6.3.4 ALTERNATE DIRECTORS. A Director may at any time
appoint another person (including another Director) to be his alternate
Director, and may at any time terminate such appointment. Any person so
appointed shall be entitled to receive notices of and to attend and vote at
meetings of the Board and count towards a quorum and shall automatically vacate
his office on the expiration of the term for, or the happening of the event,
until which he is by the terms of his appointment to hold office or if the
appointor in writing terminates the appointment or if the appointor himself
ceases for any reason to hold office as a Director. An appointment of an
alternate Director shall not prejudice the right of the appointor to receive
notices of and to attend and vote at meetings of the Board, and the powers of
the alternate Director shall automatically be suspended during such time as the
Director appointing him is himself present in person at a meeting of the Board.
6.4. BOARD MEETINGS.
6.4.1 NOTICE. Meetings of the Board may be called by
the Chairman of the Board or any two Directors. Not less than 14-days' notice
of any Board meeting shall be given to all Directors; PROVIDED, HOWEVER, that
such notice period may be reduced if approved by all of the Directors in
writing. The venue for Board meetings shall be the principal offices of the
Company unless otherwise approved by the Board.
6.4.2 QUORUM. All meetings of the Board shall require a
quorum consisting of at least three Directors, including at least one Director
nominated by IWC and at least one Director nominated by SA Wireless.
Notwithstanding the foregoing, if such a quorum is not present within one hour
from the time appointed for the meeting, the meeting shall adjourn
13
to such place and time (which is at least 14 days later) as those Directors who
did attend shall decide or, if no such decision is reached, at the same place
and time 14 days later, at which time any three Directors present shall
constitute a quorum; PROVIDED that not less than seven days' notice of such
adjourned meeting of the Board shall be given to all the Directors.
6.4.2 TELEPHONIC MEETINGS. Directors may participate in
a meeting of the Board by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear each other at the same time.
6.4.4 VOTING. The adoption of any resolution of the
Board shall require the affirmative vote of Directors holding a majority of the
votes held by Directors present at a duly constituted meeting of the Board at
which a quorum is present. The Chairman of the Board shall have no casting
vote.
6.4.5 WRITTEN RESOLUTION. By notice and copy to all
Directors, resolutions may be adopted in writing by a majority of Directors.
6.5. PMCL BOARD. The parties agree that (a) so long as the
beneficial ownership of Shares owned by SA Wireless is not less than 30% of the
total issued Shares, AIF shall have the right to directly nominate two directors
to the PMCL Board where the PMCL Board has eight members but if the number of
directors constituting the PMCL Board is increased to 10, then AIF shall have
the right to directly nominate three directors to the PMCL Board, and (b) if the
beneficial ownership of Shares owned by SA Wireless is less than 30%, but more
than 15%, of the total issued Shares, then AIF shall have the right to directly
nominate one director to the PMCL Board where the PMCL Board has eight members
and two directors to the PMCL Board where the PMCL Board has 10 members. The
parties further agree that IWC shall have the right to directly nominate all
other directors to the PMCL Board which the Company may from time to time have
the right to elect to the PMCL Board. Each of the Shareholders shall cause the
Company to vote its shares in PMCL for the election of the SA Wireless nominees
nominated in accordance with this Section 6.5.
6.6. PMCL AFFAIRS.
(a) If any of the matters referred to in Section 6.2(a)(x)
that can be resolved by maintaining the status quo fails to obtain a unanimous
vote of the Shareholders, then the Shareholders shall cause the Company acting
in its capacity as a shareholder of PMCL or the nominees of the Company on the
PMCL Board, as the case may be, to vote at the applicable shareholders' meeting
of PMCL or applicable PMCL Board meeting, as the case may be, to maintain the
status quo.
(b) Except for the matters referred to in Section 6.2, the
Shareholders and the Board shall discuss matters concerning the business of PMCL
with a view to achieving a unanimous position of IWC Group and SA Wireless in
respect of decisions of the shareholders of PMCL or of the PMCL Board. If a
unanimous position cannot be reached then (i) in the case of a PMCL shareholder
decision, the Company in its capacity as a shareholder of PMCL shall vote the
shares held by it in PMCL in such manner to reflect the differing positions
14
of IWC Group, on the one hand, and SA Wireless, on the other hand, and (ii) in
the case of a PMCL Board decision, each of IWC Group and SA Wireless shall be
free to direct their nominees on the PMCL Board to vote as IWC Group or SA
Wireless, as the case may be, may determine.
(c) With respect to a unanimous decision of the
Shareholders in respect of the matters referred to in Section 6.2(a)(x), (xi)
or (xii), if at any meeting of the PMCL Board, any nominee of any Shareholder to
the PMCL Board shall not vote on any matter in accordance with the specific
resolution of the Shareholders on such matter thereby resulting in the PMCL
Board passing a resolution contrary to such specific resolution of the
Shareholders, then the Shareholder nominating such nominee shall be deemed to
have committed a material breach of this Agreement.
6.7. MANAGEMENT OF PMCL. The parties hereto acknowledge and
agree that IWC or an Affiliate wishes to enter into a management services
agreement with PMCL pursuant to which IWC or its Affiliate will provide such
management services as are required to ensure the proper day-to-day management
and operation of PMCL and at such a level and to such an extent so as to enable
IWC and its Affiliates to comply with the requirements of the U.S. Investment
Company Act of 1940 so as not to be deemed an "investment company" thereunder.
The parties hereto acknowledge that any such management services agreement will
be in a form to be agreed between IWC and SA Wireless and will require a
Supermajority vote of the shareholders of PMCL. SA Wireless hereby agrees to
take all such actions to support and encourage the shareholders of PMCL to vote
in favor of PMCL entering into any such management services agreement.
6.8. NON-COMPETITION. With respect to Clause 14.1(b) of the PMCL
Shareholders Agreement, if another consortium is formed without SA Wireless or
an Affiliate thereof as contemplated in subclause (y) of the second paragraph of
Clause 14.1(b) and such consortium is successful in bidding for a license or
other rights that are offered by the Government of Pakistan, then IWC Group
agrees that as soon as it is practicable, it will transfer to SA Wireless or an
Affiliate designated by it part of the equity interest of IWC Group in such
consortium, which shall reflect the then current shareholding of IWC Group and
SA Wireless in the Company. The purchase price of such equity interest in the
consortium to be transferred by IWC Group to SA Wireless or its Affiliate shall
be equal to the subscription price per share that IWC Group originally paid for
such interest, plus any additional capital contributions or shareholder loans
subsequently made by IWC Group in respect of such interest. Notwithstanding the
foregoing, IWC Group shall not be required to make any transfer to SA Wireless
of equity interests in such consortium if such transfer would result in (i) a
violation of any order, decree, award or injunction of any governmental or
administrative authority; (ii) the revocation, restriction or imposition of
conditions on the license or rights that have been acquired by the consortium;
or (iii) a violation of the PMCL Shareholders Agreement.
15
6.9. DEADLOCK WITH RESPECT TO PMCL.
(a) If the requisite vote of the Shareholders pursuant to
Section 6.2(a)(x), 6.2(a)(xi) or 6.2(a)(xii) cannot be obtained or there occurs
an irreconcilable difference of opinion or interest among the Shareholders or
the Directors with respect to a subject on which their concurrence is required
and which relates to the management or operations of the Company or PMCL, then a
deadlock (a "Deadlock") shall be deemed to arise 30 days after any Shareholder
shall give written notice to the Company of the occurrence of any such event.
(b) Upon the occurrence of a Deadlock, the Shareholders,
through their chief executive officers or designees, shall negotiate in good
faith for a period of not less than 30 days to seek a mutually agreeable
resolution of such Deadlock. In the event such matter cannot be so resolved
through good faith negotiations, the Shareholder shall mutually consult in good
faith for a period of 90 days (the "Consultation Period") concerning the
disposition of their respective interests in the Company.
(c) If a Deadlock occurs and continues after the expiration
of the Consultation Period, the Company shall notify PMCL of the existence of
the Deadlock and the Shareholders shall cause the Company to transfer the shares
of PMCL held by it to each of the Shareholders on a pro rata basis based on
their shareholding in the Company, with the result that each of the Shareholders
shall become direct shareholders of PMCL.
6.10. DIRECTORS' ACCESS. Each Director shall be entitled to
examine the books and accounts of the Company. The Company shall provide to each
Director, within 30 days after the end of each month, a monthly operating report
of the Company and each Subsidiary containing such information as may be
specified by the Board and such information relating to the business affairs and
financial position of the Company as such Director may require. Any Director
may provide such information to a Shareholder.
7. FINANCIAL REPORTS AND AUDITING.
7.1. RIGHT OF INSPECTION. The Company shall allow the
Shareholders and their authorized representatives the right during normal
business hours to inspect its books and accounting records and those of the
Subsidiaries, to make extracts and copies therefrom at their own expense and to
have full access to all of the Company's and each of the Subsidiaries' property
and assets. Notwithstanding the foregoing in this Section 7.1, the Company
shall not be obligated to provide any information to any Shareholder or
Shareholder's representatives or to any competitor of the Company pursuant to
this Section 7.1 that the Company considers to be a trade secret or similar
confidential information unless such Shareholder and such Shareholder's
representatives agree not to use such information and to keep such information
confidential. The foregoing rights of visitation and inspection shall be in
addition to any other similar rights the Shareholders may have under the laws of
Mauritius.
7.2. BOOKS AND RECORDS. The Company and the Subsidiaries shall
keep proper, complete and accurate books of account in US dollars in accordance
with international accounting standards and shall have their accounts audited
annually in accordance with such
16
standards by a reputable firm of international accountants appointed by the
Shareholders. The audited financial statements shall be prepared in US dollars
and reconciled according to United States generally accepted accounting
principles.
7.3. REPORTS. The Company shall provide to each Shareholder (i)
within 60 days after the end of each Financial Year, the annual audited
consolidated financial statements of the Company for such Financial Year, (ii)
within 15 days after the end of each month, monthly unaudited consolidated
financial statements of the Company for such month, (iii) within 30 days after
the end of each quarter, quarterly unaudited consolidated financial statements
of the Company for such quarter which have been reconciled according to United
States generally accepted accounting principles, and (iv) such other reports as
the Board may determine. The Company shall furnish to the Shareholders and
their auditors such financial and other information relating to the business of
the Company and its Subsidiaries as any of them may reasonably require.
7.4. PMCL REPORTS.
(a) If any Shareholder wishes to obtain financial or other
information relating to the business of PMCL that is not otherwise being
provided by PMCL, upon its request, the Shareholders shall cause the Company to
make a request pursuant to Clause 7.7 of the PMCL Shareholders Agreement for
such financial or other information and to forward any information obtained by
the Company forthwith to each of the Shareholders.
(b) Upon the request of any Shareholder, the Shareholders
shall cause the Company to take all such actions or do all such things as may be
necessary or desirable to procure that the books and records, financial affairs
and internal audits of PMCL comply with the provisions of Clauses 7.1 and 7.2 of
the PMCL Shareholders Agreement.
8. FUNDING.
8.1. ADDITIONAL CAPITAL CONTRIBUTIONS; SHAREHOLDER LOANS.
(a) To the extent that the Company is required to make
capital contributions or shareholder loans to PMCL as provided in Clause 9.1 of
the PMCL Shareholders Agreement and Paragraph 3 of the PMCL Letter Agreement,
each Shareholder shall make its pro rata share, as set forth in Annex A attached
hereto (as the same may be amended from time to time to reflect issuances and
Transfers of Shares), of the required capital contributions or loans to the
Company to enable the Company to fulfill its obligations with respect to PMCL.
(b) Except as provided in Section 8.1(a), if the
Shareholders unanimously approve the making of capital contributions or
shareholder loans by the Company as referred to in Section 6.2(a)(xi), then each
Shareholder shall make its pro rata share of the approved capital contributions
or loans to the Company to enable the Company to fulfill its obligations with
respect to PMCL.
17
(c) For the avoidance of doubt, all equity capital
contributions required to be made pursuant to this Agreement shall be made by
way of subscription for additional Shares by the Shareholders. The Board shall
determine whether such additional Shares will be Ordinary Shares, Redeemable
Preference Shares or a combination thereof. The aggregate subscription price
for such additional Shares shall be equal to the aggregate amount of the capital
contributions required to be made by the Company to PMCL. If it shall be
necessary to increase the authorized share capital of the Company to issue
additional Shares in connection with the making of any additional equity capital
contributions, then each Shareholder shall vote its Shares in favor of a
resolution to increase appropriately the share capital of the Company and to
allot such additional Shares in accordance with this Agreement, and shall cause
its Directors to adopt a resolution authorizing such increase and the allotment
of such additional Shares in accordance with this Agreement.
(d) If shareholder loans are required to be made
pursuant to this Agreement to enable the Company to provide a shareholder loan
to PMCL, then the terms and conditions of the loans made by the Shareholders to
the Company shall be the same as the terms and conditions on which the
shareholder loan of the Company to PMCL is being made.
8.2. FAILURE TO SUBSCRIBE FOR ADDITIONAL SHARES OR PROVIDE
SHAREHOLDER LOANS.
(a) If any Shareholder (the "Defaulting Shareholder")
fails to (i) subscribe and pay for its pro rata portion of any additional Shares
required to be subscribed by such Shareholder pursuant to Sections 8.1(a) and
(b) within 20 Business Days after receiving notice from the Company of the
Shares to be offered by the Company pursuant to Sections 8.1(a) and (b) and the
subscription price therefor or (ii) provide its pro rata portion of any
shareholder loans required to be made by such Shareholder pursuant to Section
8.1(a) within 20 Business Days after receiving notice from the Company of a call
for such loans, then the other Shareholders (the "Non-Defaulting Shareholders")
shall have the right (the "Section 8.2 Right") to purchase all, but not less
than all, of the Shares of the Defaulting Shareholder (the "Subject Shares") at
a purchase price equal to 50% of their fair market value as established in
accordance with Section 8.3(c).
(b) Any Non-Defaulting Shareholders who exercise their
Section 8.2 Right shall make up the share of the capital contributions or
shareholder loans to the Company that the Defaulting Shareholder failed to make,
and shall make the requisite capital contributions or, shareholder loans on the
original due date thereof, notwithstanding that the closing of the sale and
purchase of the Subject Shares may occur after such date as provided in Section
8.3. If there are more than one such Non-Defaulting Shareholders, they shall
make up the capital contributions or, shareholder loans that the Defaulting
Shareholder failed to make in proportion to the Shares of the Defaulting
Shareholder that they have each elected to purchase.
8.3. PROCEDURES.
(a) Upon the expiration of the 20-Business Day period
referred to in Section 8.2(a), the Company shall notify the Non-Defaulting
Shareholders in writing of
18
their Section 8.2 Right. Within five Business Days after delivery of such
notice from the Company, the Non-Defaulting Shareholders shall decide whether
they wish to purchase the Subject Shares, and shall notify the Company and the
Defaulting Shareholder of their decision. If more than one Non-Defaulting
Shareholder wishes to purchase the Subject Shares, then they shall have the
right to purchase a pro rata portion of the Subject Shares based on the
proportion that the number of Shares owned by each such Non-Defaulting
Shareholder bears to the total number of Shares owned by all such Non-Defaulting
Shareholders that elect to purchase the Subject Shares. Failure by a
Non-Defaulting Shareholder to respond within such five-Business Day period shall
be regarded as a waiver of its right to purchase the Subject Shares.
If the Non-Defaulting Shareholders decline to exercise
their Section 8.2 Right or otherwise fail to elect to purchase all of the
Subject Shares within the five-Business Day period referred to in Section
8.3(a), then the right to exercise the Section 8.2 Right shall lapse and the
provisions of Section 8.4 shall apply.
(c) If the Non-Defaulting Shareholders elect to
exercise their Section 8.2 Right, then the Company shall, within two Business
Days after receipt of the Non-Defaulting Shareholders' notice of election,
notify the Defaulting Shareholder and the Non-Defaulting Shareholders. Within
10 Business Days of the date of the Company's notice, an appraiser (the
"Appraiser"), which shall be an internationally recognized investment banking
firm that has not had a substantial relationship with any of the Shareholders or
any of their Affiliates in the immediately preceding five years, shall be
selected in the following manner to determine the fair market value of the
Subject Shares. The Non-Defaulting Shareholders, on the one hand, and the
Defaulting Shareholder, on the other hand, shall each select an investment
banking firm and the investment banking firms so selected shall designate the
Appraiser; PROVIDED that if either the Non-Defaulting Shareholders or the
Defaulting Shareholder shall fail to select an investment banking firm within
such 10-Business Day period, then the appraisal shall be conducted by the
investment banking firm that is so selected. The Appraiser shall be instructed
to make its determination and to deliver its report within 20 Business Days of
its appointment. In addition, the Appraiser shall be instructed to take into
account the dilution of the Defaulting Shareholder's shareholding in the Company
as a result of its failure to make its share of the required capital
contributions or shareholder loans to the Company. The fees and expenses of the
Appraiser shall be borne by the Defaulting Shareholder. The Appraiser shall act
as an expert and not an arbitrator, and the determination of the Appraiser shall
be final and binding on all parties.
(d) The Company shall determine the date for the
closing of the sale and purchase of the Subject Shares (which date shall not be
more than 10 days after the date of receipt of the report of the Appraiser) and
shall notify all the Shareholders thereof. The closing shall take place at the
principal office of the Company on the date so specified.
8.4. DIVESTMENT. In the case of capital contributions or
shareholder loans that are required to be made by the Company to PMCL pursuant
to Clause 9.1 of the PMCL Shareholders Agreement or Paragraph 3 of the PMCL
Letter Agreement, if the Non-Defaulting Shareholders have not elected to
purchase all of the Subject Shares, the Company
19
shall, on the due date of the making of the capital contributions or the
shareholder loans to PMCL or within the cure period stipulated in Clause 16.3(d)
of the PMCL Shareholders Agreement, make such part of its required capital
contributions or shareholder loans with the funds that have been provided by the
Non-Defaulting Shareholders. The parties agree that thereupon the Company shall
have the right to purchase the Shares held by the Defaulting Shareholder or to
otherwise cause the Defaulting Shareholder to divest its Shares in consideration
for the transfer by the Company to the Defaulting Shareholder of such number of
shares of PMCL that is attributable and corresponds to the shareholding
percentage in the Company of the Defaulting Shareholder, with the result that
the Defaulting Shareholder shall become a direct shareholder of PMCL. Each
Shareholder covenants that, if it is a Defaulting Shareholder, it shall execute
and deliver a deed of adherence, substantially in the form of Exhibit C to the
PMCL Shareholders Agreement. Immediately following the transfer of shares of
PMCL to the Defaulting Shareholder, the Defaulting Shareholder shall be deemed
to have been in default under Clause 16.3(d) of the PMCL Shareholders Agreement
by virtue of having failed to fund its share of the capital contributions or
shareholder loans that should have been made by it originally to the Company,
and the Company (as so constituted with only the Non-Defaulting Shareholders as
its shareholders) shall, together with the other shareholders of PMCL, have the
right to purchase the shares of PMCL held by the Defaulting Shareholder in
accordance with Clause 16.5 of the PMCL Shareholders Agreement. Notwithstanding
the foregoing, the Company may not purchase or divest the Shares held by the
Defaulting Shareholder without the unanimous approval of the Non-defaulting
Shareholders.
8.5. DILUTION OF BREACHING SHAREHOLDER. In the case of
capital contributions or shareholder loans that are required to be made by the
Company pursuant to Clause 9.2 or 9.3 of the PMCL Shareholders Agreement
following the unanimous approval of the Shareholders as required under
Section 6.2(a)(xi), if a Shareholder (the "Breaching Shareholder") fails to (i)
subscribe and pay for its pro rata portion of any additional Shares required to
be subscribed by such Shareholder pursuant to Sections 8.1(b) and (c) or (ii)
provide its pro rata portion of any shareholder loans required to be made by
such Shareholder pursuant to Section 8.1(b), then the Company shall, on the due
date of the making of the capital contributions or the shareholder loans to
PMCL, make such part of its required capital contributions or shareholder loans
with the funds that have been provided by the other Shareholders (the
"Non-Breaching Shareholders"). The parties agree, however, that any dilution of
the Company's shareholdings in PMCL resulting from the failure of the Company to
make its required capital contributions or shareholder loans in full to PMCL
shall require a corresponding dilution of the shareholding of the Breaching
Shareholder in the Company. Accordingly, in the case of the Breaching
Shareholder's failure to make its pro rata share of capital contributions, the
number of Shares to be issued to the Non-Breaching Shareholders for their
capital contributions and the subscription price therefor shall be determined
based upon the extent of such dilution and the aggregate amount of the capital
contributions made by the Non-Breaching Shareholders. In the case of the
Breaching Shareholder's failure to make its pro rata shareholder loan, such
dilution shall be effected through the issuance by the Company of additional
Shares to the Non-Breaching Shareholders at no cost. Each of the Shareholders
agrees that it shall vote its Shares in favor of a resolution to increase
appropriately the share capital of the Company (if required) and to allot such
additional Shares to the Non-Breaching Shareholders in accordance with this
Section 8.5,
20
and shall cause its Directors to adopt a resolution authorizing such increase
(if required) and the allotment of such additional Shares in accordance with
this Section 8.5.
9. MEMORANDUM AND ARTICLES OF ASSOCIATION. The parties agree,
promptly after the date hereof, to take all necessary actions and execute all
documents and instruments necessary to amend the Charter Documents to conform to
the terms of this Agreement.
10. REPRESENTATIONS AND WARRANTIES. Each party hereto represents
with respect to itself, severally and not jointly, to the other parties hereto
that:
(a) such party has the full power and authority to
enter into, execute and deliver this Agreement and to perform the transactions
contemplated hereby and such party is duly organized and existing under the laws
of the jurisdiction of its organization and that the execution and delivery by
such party of this Agreement and the performance by such party of the
transactions contemplated hereby have been duly authorized by all necessary
corporate or other action of such party;
(b) assuming the due authorization, execution and
delivery hereof by the other parties, this Agreement constitutes the legal,
valid and binding obligation of such party, enforceable against such party in
accordance with its terms;
(c) the execution, delivery and performance of this
Agreement by such party and the consummation of the transactions contemplated
hereby will not (i) violate any provision of the Memorandum or Articles of
Association or By-laws (or comparable instruments) of such party; (ii) require
such party to obtain any consent, approval or action of, or make any filing with
or give any notice to, any governmental authority in such party's country of
organization or any other person pursuant to any instrument, contract or other
agreement to which such party is a party or by which such party is bound other
than such filings as may be required under applicable securities laws and such
notices and copies of documents as it may be required to provide its or its
Affiliates' lenders; (iii) conflict with or result in any material breach or
violation of any of the terms and conditions of, or constitute (or with notice
or lapse of time or both constitute) a default under, any instrument, contract
or other agreement to which such party is a party or by which such party is
bound; (iv) violate any order, judgment or decree against, or binding upon, such
party or upon its respective securities, properties or businesses; or (v)
violate any law or regulation of such party's country of organization or any
other country in which it maintains its principal office; and
(d) with respect to Clause 3(b)(iv) of the Motorola
Share Purchase Agreement, neither it nor any of its Affiliated Entities (as
defined in the Motorola Share Purchase Agreement), directors, employees or
agents have been advised of or have knowledge of facts or circumstances
involving the Condition of the Company (as defined in the Motorola Share
Purchase Agreement) that demonstrate an existing material misrepresentation by
Motorola pursuant to the Motorola Share Purchase Agreement that would give rise
to an ability of the Company to terminate the Motorola Share Purchase Agreement
or to a claim for indemnification pursuant to Clause 10(b)(i) of the Motorola
Share Purchase Agreement.
21
11. FEES AND EXPENSES. Except as otherwise specifically provided in
this Agreement, each of the parties hereto shall bear its respective fees and
expenses incurred in connection with the preparation, execution and performance
of this Agreement and the transactions contemplated hereby and thereby,
including, without limitation, all fees and expenses of agents, representatives,
counsel and accountants.
12. CONFIDENTIALITY.
12.1. GENERAL OBLIGATION. Each party undertakes that it shall
not reveal, and shall cause its directors, officers and employees not to reveal,
to any third party any information acquired by it or them in connection with
this Agreement or confidential or proprietary information concerning the
organization, business, technology, finance, transactions or affairs of the
Company or the Subsidiaries or any other party hereto without the prior written
consent of the other parties.
12.2. EXCEPTIONS. The provisions of Section 12.1 shall not
apply to:
(a) information that is publicly available (except by
virtue of a breach of this Agreement);
(b) a disclosure to legal, financial or professional
advisors or bankers of any party;
(c) a disclosure, after giving prior notice to the
other parties to the extent practicable under the circumstances and subject to
any practicable arrangements to protect confidentiality, to the extent required
under the rules of any stock exchange or by applicable laws or governmental
regulations or judicial or regulatory process or in connection with any judicial
process regarding any legal action, suit or proceeding arising out of or
relating to this Agreement;
(d) a disclosure by the Company reasonably necessary
in the ordinary course of business or otherwise in connection with transactions
or proposed transactions of the Company; or
(e) a disclosure required by the lenders of any
Shareholder or of any Shareholder's Affiliates.
12.3. DISCLOSURE TO THIRD PARTIES. Upon any Shareholder
entering into negotiations with any Person with a view to selling any Shares to
such Person, information in respect of the Company or any Subsidiary that is
reasonably necessary to permit such Person to evaluate the business of the
Company or such Subsidiary may be provided to such Person, provided that such
Person has executed a binding confidentiality letter in a form approved by the
Board; PROVIDED that where such Person is involved in a business directly
competing with that of the Company, the Board may prohibit the disclosure of any
such confidential information as the Board may reasonably determine.
22
13. PUBLICITY. Except for a publicity release or public announcement
(after giving prior notice to and consulting with the other parties to the
extent practicable under the circumstances), to the extent required under the
rules of any stock exchange or by applicable laws or governmental regulations or
judicial or regulatory process, and except for disclosures permitted by Article
12, no publicity release or public announcement concerning the Company any
Subsidiary or the relationship or involvement of the parties shall be made by
any party without advance approval thereof by the Board; PROVIDED that no
disclosure of a party's identity may be made without the prior approval of such
party, except as permitted by Article 12.
14. U.S. INVESTMENT COMPANY ACT OF 1940. Each of the parties hereto
agrees that the Company and the Subsidiaries shall conduct their business at all
times such that the Company or any present or future Subsidiary is not deemed to
be an "investment company" under the U.S. Investment Company Act of 1940.
15. MISCELLANEOUS.
15.1. LEGEND. Each certificate for any Shares now held or
hereafter acquired by any Shareholder shall, for as long as this Agreement is
effective, bear a legend as follows:
"International Wireless Communications Pakistan Limited (the "Company") is
a company organized under the laws of Mauritius, and the shares represented
by this certificate may not be sold, assigned, transferred, exchanged,
mortgaged, pledged or otherwise disposed of or encumbered without
compliance with the provisions of that certain Shareholders' Agreement,
dated as of August __, 1997 among the Company and the shareholders of the
Company named therein. A copy of such Shareholders' Agreement is on file
at the registered offices of the Company. The Company will not register
the transfer of such shares on the register of members of the Company
unless and until the transfer has been made in compliance with the terms of
such Shareholders' Agreement."
15.2. NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally or
sent by registered mail or international courier service, in either case postage
prepaid, or delivered by facsimile or similar telecommunications equipment. Any
such notice shall be deemed given when so delivered personally or, if sent by
registered mail, five days after the date of deposit in the mails or, if sent by
international courier service, three days after the date of deposit with the
courier service or, if delivered by facsimile or similar telecommunications
equipment, at the time of receipt thereof, as follows:
(a) if to the Company, to:
International Wireless Communications
Pakistan Limited
P.O. Box 1130
3rd Floor
23
00 Xxxx Xxxxxx Xxxxxx
Xxxx Xxxxx, Mauritius
Attention: _____________
Facsimile No.: _________
(b) if to IWC, to:
Pakistan Wireless Holdings Limited
000 Xxxxx Xx Xxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Xxxxxx Xxxxxx xx Xxxxxxx
Attention: Xx. Xxxx Xxxxxxxx
Xx. Xxxxx X. Xxxxxxx
Facsimile No.: 0-000-000-0000
(c) if to SA Wireless, to:
South Asia Wireless Communications
(Mauritius) Limited
c/o Asian Infrastructure Fund Advisers
Limited
Suite 0000-00
Xxxx Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Attention: Xx. Xxxxxxx Xxxxx
Xxxxxxxxx No.: 000-0000-0000
(d) if to Vanguard
Vanguard Pakistan, Inc.
0000 Xxxxxx Xxxxxx Xxxx, Xxx. 000
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile No: 0-000-000-0000
Any party may, by notice to the other parties, designate another
address or person for receipt of notices hereunder.
15.3. DISCREPANCIES. If there is any discrepancy between any
of the provisions of the Charter Documents or documents analogous to the Charter
Documents of any of the Subsidiaries and this Agreement, the provisions of this
Agreement shall prevail, and the parties shall thereupon procure that the
Charter Documents or relevant analogous documents, as the case may be, are
promptly amended, to the extent permitted by applicable law, in order to conform
with this Agreement.
24
15.4. SEVERABILITY. In the event any provision hereof is held
void or unenforceable by any court, such provision shall be severable and shall
not affect the remaining provisions hereof.
15.5. ENTIRE AGREEMENT. This Agreement, together with the
other agreements referred to herein, reflects the entire agreement among the
parties and supersedes all prior agreements and communications, either oral or
in writing, among the parties hereto with respect to the subject matter hereof.
15.6. TERM OF AGREEMENT. This Agreement shall become effective
upon the execution hereof by all of the parties hereto and shall continue in
effect until the earlier to occur of (a) the date on which at least 30% of the
Shares in issue on a fully diluted basis are publicly traded on an
internationally recognized stock exchange and (b) any date agreed upon in
writing by all of the Shareholders.
15.7. AMENDMENT AND WAIVER. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be waived,
only by a written instrument signed by the Company and Shareholders holding
collectively at least 90% of the issued and outstanding Shares or, in the case
of a waiver, by the party waiving compliance, provided that if this Agreement is
amended, supersed, canceled, renewed or extended, or a term hereof is waived, in
a manner that by its terms adversely affects one or more Shareholders but not
all of the Shareholders, the consent of such affected Shareholder(s) to such
action shall be required. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any waiver on the part of any party of any such right, power or privilege, nor
any single or partial exercise of any such right, power or privilege, preclude
any further exercise thereof or the exercise of any other such right, power or
privilege. The rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies that any party may otherwise have at law or
in equity.
15.8. CONSENT TO SPECIFIC PERFORMANCE. The parties hereto
declare that it is impossible to measure in money the damages that would be
suffered by a party by reason of the failure by any other party to perform any
of the obligations hereunder. Therefore, if any party shall institute any
action or proceeding to enforce the provisions hereof, any party against whom
such action or proceeding is brought hereby waives any claim or defense therein
that the other party has an adequate remedy at law.
15.9. ASSIGNMENT; BINDING ON TRANSFEREE. The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted transferees from and after
the effective date hereof.
15.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF ENGLAND AND WALES.
25
15.11. ARBITRATION.
(a) Any dispute or claim arising out of or relating to
this Agreement, or the breach, termination or invalidity hereof, shall be
finally settled by arbitration under the Rules of Conciliation and Arbitration
of the International Chamber of Commerce (the "Rules") as are currently in force
and as may be amended by the rest of this Section 15.11. For the purpose of
such arbitration, there shall be one or more arbitrators appointed in accordance
with the Rules (such single arbitrator or board of arbitrators, as the case may
be, are referred to below as the "Arbitration Board"). The place of arbitration
shall be Hong Kong. All arbitration proceedings shall be conducted in the
English language. The arbitrators shall decide any such dispute or claim
strictly in accordance with the governing law specified in Section 15.10 of this
Agreement. Judgment upon any arbitral award rendered hereunder may be entered
in any court having jurisdiction, or application may be made to such court for a
judicial acceptance of the award and an order of enforcement, as the case may
be.
(b) Each party shall cooperate in good faith to expedite
(to the maximum extent practicable) the conduct of any arbitral proceedings
commenced under this Agreement.
(c) The costs and expenses of the arbitration,
including, without limitation, the fees of the Arbitration Board, shall be
borne equally by each party to the dispute or claim, and each party shall pay
its own fees, disbursement and other charges of its counsel.
(d) Any award made by the Arbitration Board shall be
final and binding on the parties hereto. The parties expressly agree to waive
the applicability of any laws and regulations that would otherwise give the
right to appeal the decisions of the Arbitration Board so that there shall be no
appeal to any court of law for the award of the Arbitration Board, and a party
shall not challenge or resist the enforcement action taken by another party in
whose favor the award of the Arbitration Board was given.
15.12. SHAREHOLDER OBLIGATIONS; FURTHER ASSURANCES. The parties
hereto shall comply with the provisions of this Agreement in relation to their
investment in the Company and in transacting business with the Company and shall
exercise their respective rights and powers in accordance with and so as to give
effect to this Agreement. Each of the parties shall execute such documents and
other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby.
15.13. EXERCISE OF RIGHTS AND PERFORMANCE OF DUTIES BY IWC
GROUP. Any rights or obligation of the IWC Group under this Agreement may be
exercised or performed, as applicable, jointly by both members of the IWC Group
or individually by either member of the IWC Group and if exercised or performed
individually by either member of the IWC Group, the other Shareholders shall be
entitled to rely upon such exercise or performance as the action of the IWC
Group.
26
15.14. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
INTERNATIONAL WIRELESS
COMMUNICATIONS PAKISTAN LIMITED
By:
---------------------------------------
Name:
Title:
PAKISTAN WIRELESS HOLDINGS
LIMITED
By:
---------------------------------------
Name:
Title:
SOUTH ASIA WIRELESS
COMMUNICATIONS (MAURITIUS)
LIMITED
By:
---------------------------------------
Name:
Title:
VANGUARD PAKISTAN, INC.
By:
---------------------------------------
Name:
Title:
27
EXHIBIT A
DEED OF ADHERENCE
THIS DEED OF ADHERENCE is made the ___ day of ___________, 199
BETWEEN:
(1) International Wireless Communications Pakistan Limited, a company
incorporated in Mauritius (the "Company"); and
(2) [Name of New Shareholder] (the "New Shareholder").
WHEREAS:
(A) On the [ ] day of [ ] 1997, the Company and its
shareholders entered into a Shareholders' Agreement (the "Shareholders'
Agreement") to which a form of this Deed is attached as Exhibit A.
(B) The New Shareholder wishes to [be allotted/have transferred to him/her/it]
[ ] shares (the "Shares") in the share capital of the Company from [
] (the "Former Shareholder") and in accordance with the Shareholders'
Agreement has agreed to enter into this Deed.
(C) The Company enters this Deed on behalf of itself and as agent for all the
existing Shareholders of the Company.
NOW THIS DEED WITNESSES as follows:
1. INTERPRETATION.
In this Deed, except as the context may otherwise require, all words and
expressions defined in the Shareholders' Agreement shall have the same
meanings when used herein.
2. COVENANT.
The New Shareholder hereby covenants to the Company as trustee for all
other persons who are at present or who may hereafter become bound by the
Shareholders' Agreement, and to the Company itself to adhere to and be
bound by all the duties, burdens and obligations of a shareholder holding
the same class of share capital as the Shares imposed pursuant to the
provisions of the Shareholders' Agreement and all documents expressed in
writing to be supplemental or ancillary thereto as if the New Shareholder
had been an original party to the Shareholders' Agreement since the date
thereof.
3. ENFORCEABILITY.
Each existing shareholder and the Company shall be entitled to enforce the
Shareholders' Agreement against the New Shareholder, and the New
Shareholder shall be entitled to all
E-1
rights and benefits of the Former Shareholder (other than those that are
non-assignable) under the Shareholders' Agreement in each case as if the
New Shareholder had been an original party to the Shareholders' Agreement
since the date thereof.
4. GOVERNING LAW.
THIS DEED OF ADHERENCE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF ENGLAND AND WALES.
IN WITNESS WHEREOF, this Deed of Xxxxxxxxx has been executed as a deed
on the date first above written.
INTERNATIONAL WIRELESS
COMMUNICATIONS PAKISTAN LIMITED
By:
---------------------------------------
Name:
Title:
[NAME OF NEW SHAREHOLDER]
By:
---------------------------------------
Name:
Title:
E-2
ANNEX A
PRO RATA SHARE OF CAPITAL CONTRIBUTIONS
AND SHAREHOLDER LOANS TO BE MADE TO PMCL
I. Capital Contributions and Shareholder Loans to be made by the Company as at
the Closing (as defined in the Motorola Share Purchase Agreement).
1. CAPITAL CONTRIBUTIONS.
US$[56,823,927] in the aggregate.
Shareholder Share of Capital Contributions
----------- ------------------------------
IWC US$
SA Wireless US$
Vanguard US$
2. SHAREHOLDER LOANS.
US$______________ in the aggregate.
Shareholder Share of Shareholder Loans
----------- --------------------------
IWC US$
SA Wireless US$
Vanguard US$
