Exhibit 1
Restructuring and Investment Agreement,
dated October 8, 2002,
by and among Song Networks Holding AB, Song Networks N.V., Vattenfall AB,
Stena Adactum AB, Arrowhead AB and the Participating Bondholders, relating
to the reorganization of the capital structure of Song Networks
Holding AB and Song Networks N.V.
EXECUTION COPY
RESTRUCTURING AND INVESTMENT AGREEMENT
REGARDING
THE
SONG NETWORKS HOLDING AB
GROUP
DATED AS OF
8 OCTOBER 2002
TABLE OF CONTENTS
ARTICLE 1 THE BOND EXCHANGE..........................................................................2
Section 1.1 The Bond Exchange..................................................................2
Section 1.2 Participating Bondholder Support...................................................3
Section 1.3 Bond Exchange Documentation and Timetable..........................................3
Section 1.4 Liquidation of Song NV.............................................................4
ARTICLE 2 THE EQUITY INVESTMENT......................................................................4
Section 2.1 The Equity Investment..............................................................4
Section 2.2 Subscription Price.................................................................5
Section 2.3 Closing and Issuance of Ordinary Shares............................................5
ARTICLE 3 THE RIGHTS OFFERING........................................................................5
Section 3.1 The Rights Offering................................................................5
Section 3.2 Rights Offering Procedures.........................................................6
Section 3.3 Ownership upon Completion of Rights Offering.......................................6
ARTICLE 4 THE CONVERTIBLE NOTES ISSUANCE.............................................................6
Section 4.1 The Convertible Notes Issuance.....................................................6
Section 4.2 Convertible Notes Offering Procedures..............................................7
Section 4.3 Ownership upon Conversion of the Convertible Notes.................................7
ARTICLE 5 THE ARROWHEAD ACQUISITION..................................................................7
Section 5.1 The Arrowhead Acquisition..........................................................7
Section 5.2 Closing and Issuance of Ordinary Shares............................................8
ARTICLE 6 CORPORATE GOVERNANCE FOLLOWING THE CLOSING DATE............................................8
Section 6.1 Business Plan......................................................................8
Section 6.2 Arrowhead Integration Committee....................................................8
Section 6.3 Song AB Board of Directors.........................................................9
Section 6.4 Incentive Program..................................................................9
ARTICLE 7 CONDUCT OF BUSINESS PENDING THE CLOSING DATE AND THE EFFECTIVE DATE........................9
ARTICLE 8 ADDITIONAL AGREEMENTS.....................................................................11
Section 8.1 Song EGM..........................................................................11
Section 8.2 Post-Closing EGM..................................................................11
Section 8.3 Preparation of Required Documentation.............................................12
Section 8.4 Tax Matters.......................................................................13
Section 8.5 Reverse Stock Split...............................................................13
Section 8.6 Access to Information.............................................................13
Section 8.7 Confidentiality...................................................................13
Section 8.8 Stock Exchange Listings...........................................................14
Section 8.9 Participating Bondholder Support, Forbearance.....................................14
Section 8.10 Cooperation; Reasonable Best Efforts..............................................15
ARTICLE 9 CONDITIONS PRECEDENT......................................................................16
ARTICLE 10 TERMINATION..............................................................................16
Section 10.1 Termination.......................................................................16
Section 10.2 Withdrawal of Equity Investors....................................................17
Section 10.3 Withdrawal of Participating Bondholders...........................................17
Section 10.4 Effect of Termination.............................................................18
Section 10.5 Notice of Termination.............................................................18
ARTICLE 11 MISCELLANEOUS............................................................................18
Section 11.1 Reservation of Rights Reservation of Rights.......................................18
Section 11.2 Several Liability.................................................................19
Section 11.3 Announcements.....................................................................19
Section 11.4 Intercompany Debt.................................................................19
Section 11.5 Entire Agreement..................................................................19
Section 11.6 Amendments and Waivers............................................................19
Section 11.7 Costs.............................................................................20
Section 11.8 No Survival of Representations and Warranties.....................................20
Section 11.9 Third Party Beneficiaries.........................................................21
Section 11.10 Notices...........................................................................21
Section 11.11 Assignments.......................................................................22
Section 11.12 Interpretation....................................................................23
Section 11.13 Severability......................................................................24
Section 11.14 Governing Law and Disputes........................................................24
Section 11.15 Enforcement of Agreement..........................................................25
Section 11.16 Counterparts; Effectiveness.......................................................25
Definitions
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"Agreement" has the meaning set forth in the Preamble;
"Akkoord" means a binding composition plan (ontwerp van akkoord)
filed in the Dutch Proceedings under sections 252 sqq. of the Netherlands
Bankruptcy Act which provides for the exchange of all outstanding Bonds as
contemplated in Article 1 and is in the form set forth in Annex C;
"Arrowhead Acquisition" has the meaning set forth in Article 5;
"Bondholder Approval" means the approval of at least 75% of the total
face value of Locked-Up Bonds held by Participating Bondholders, as sought by,
and communicated via, Bondholders' Counsel;
"Bondholders" means any holder of a Bond or Bonds from time to time;
"Bondholders' Counsel" shall mean Xxxxxxx XxXxxxxxx LLP or any
successor lead legal counsel to the Participating Bondholders;
"Bonds" means, collectively, the outstanding Song NV's publicly
traded debt securities not owned by Song AB or Song NV of (a) USD 150,000,000
13.0 % Senior Notes due 2009; (b) EUR 100,000,000 13.0 % Senior Notes due
2009; (c) EUR 150,000,000 11 7/8 % Senior Notes due 2009; and (d) EUR
175,000,000 12 3/8 % Senior Notes due 2008; and "Bond" means any one of them;
"Bond Exchange" means the exchange of Ordinary Shares of Song AB in
exchange for Bonds as set forth in Section 1.1;
"Business Day" means a day (other than a Saturday or a Sunday) on
which banks are open for general business in each of London, Stockholm and
Amsterdam;
"Business Plan" means the business plan attached as Annex F;
"Closing Date" has the meaning set forth in Section 1.3(f);
"Convertible Notes" means the convertible notes to be issued by Song
AB as contemplated by Article 4 hereto;
"Convertible Notes Offering" has the meaning set forth in
Section 4.1(a);
"Creditors' Meeting" means the meeting of creditors of Song NV for
the purposes of approving the Akkoord in the Dutch Proceedings;
"Dutch Court" means the District Court of Amsterdam or such other
court in the Netherlands having jurisdiction in the Dutch Proceedings;
"Dutch Proceedings" means any proceedings commenced by Song NV in the
Dutch Court under sections 213 sqq. of the Netherlands Bankruptcy Act
(Faillissementswet) for a moratorium of payments (surseance van betaling) and
relating to an Akkoord for the purpose of implementing the transactions
contemplated in this Agreement;
"Effective Date" has the meaning set forth in Section 5.1;
"Encumbrance" means any debenture, mortgage, charge, lien, deposit by
way of security, xxxx of sale, lease, hire-purchase, credit-sale or other
agreement for payment on deferred terms, option or right of pre-emption or any
other encumbrance;
"Equity Investors" has the meaning set forth in the Recitals;
"Equity Investment" has the meaning set forth in Article 2;
"Exchange Shares" has the meaning set forth in Section 1.1(a)(i);
"Final Sanction" has the meaning set forth in Section 1.1(a);
"Governmental Entity" shall mean any court, tribunal or
administrative, governmental or regulatory body, agency, commission, division,
department, public body or other authority, whether supra-national, national
or local;
"Incentive Program" has the meaning set forth in Section 6.4;
"Initial Sanction" means the sanction decision of the Dutch Court in
relation to the Akkoord following the Creditors' Meeting, notwithstanding that
an appeal in relation to the Akkoord would still be possible;
"Locked -Up Bonds" means the Bonds held by a Participating Bondholder
as of the date it became a party to this Agreement which are set forth in
Annex A;
"Ordinary Shares" means the Ordinary Shares, nominal value SEK 0.05
per share, of Song AB;
"Post-Closing EGM" has the meaning set forth in Section 8.2;
"Preference Shares" means the 341,266,446 Preference Shares, nominal
value SEK 0.05 per preference share, each convertible into one Ordinary Share,
to be issued to Bondholders pursuant to, and in accordance with, Article 1
hereto;
"Pre-Restructuring Shareholders" means the shareholders of record of
Song AB as at the record date for the Rights Offering which, for the avoidance
of doubt, are not intended to include the Participating Bondholders,
Vattenfall or Stena;
"Qualified Investor" means a person that is either (a) an "accredited
investor" within the meaning of Rule 501(a) under the US Securities Act of
1933 (the "Securities Act"), (b) not a "US person" within the meaning of
Regulation S under the Securities Act or (c) a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act;
"Resolutions" has the meaning set forth in Section 8.1(a);
"Restructuring" has the meaning set forth in the Recitals;
"Restraints" has the meaning set forth in Section 9.1;
"Restructuring Documents" has the meaning set forth in Section 8.3(a);
"Reverse Stock Split" means the reverse stock split in respect of the
outstanding Ordinary Shares to be implemented pursuant to a Resolution in the
form set forth in Annex E-6;
"Rights Offering" has the meaning set forth in Article 3;
"Securities Act" has the meaning set forth in Section 3.2 of Annex G;
"Song Disclosure Schedule" means each of the disclosure schedule
relating to the Song Group attached hereto as Schedule 2;
"Song EGM" has the meaning set forth in Section 8.1;
"Song Group" means the group of companies of which Song AB is the
ultimate parent;
"Song Shareholder Approval" has the meaning set forth in Section 8.1;
"Stock Options" means the stock option programs for the Song Group in
effect as of the date of this Agreement set forth in Schedule 4;
"Stock Purchase Agreement" has the meaning set forth in Section 5.1(a);
"Subscription Price" has the meaning set forth in Section 2.2;
"Subsidiaries" means the subsidiaries of Song AB or Song NV, as set
forth in Schedule 2;
"Taxes" means any income tax, corporation tax, capital gains tax,
transfer tax, value added tax, sales tax, capital duty tax, withholding tax,
stamp duty, social security fees and all other forms of taxes, excise or fees
and all penalties, charges and interest relating to any of the foregoing;
"total outstanding share capital of Song AB" means the total number
of Ordinary Shares of Song AB on a fully diluted basis, not including any
Ordinary Shares subject to the Stock Options; and
"Tax Rulings" has the meaning as set forth in Section 8.4.
RESTRUCTURING AND INVESTMENT AGREEMENT
THIS RESTRUCTURING AND INVESTMENT AGREEMENT (this "Agreement"), dated as of 8
October 2002, is entered into by and among:
1. Song Networks Holding AB, a company organized under the laws of
the Kingdom of Sweden, with registration number 556512-7031 ("Song AB");
2. Song Networks N.V., a company organized under the laws of The
Netherlands, with registration number 24292701 ("Song NV");
3. Vattenfall AB, a company organized under the laws of The Kingdom
of Sweden, with registration number 556036-2138 ("Vattenfall");
4. Stena Adactum AB, a company organized under the laws of The
Kingdom of Sweden, with registration number 556627-8155 ("Stena" and, together
with Vattenfall, the "Equity Investors");
5. Arrowhead AB, a company organized under the laws of the Kingdom of
Sweden, with registration number 556528-4816 and a wholly-owned subsidiary of
Vattenfall ("Arrowhead"); and
6. Each of the persons set forth on the signature pages hereto (each,
a "Participating Bondholder"),
(together, the "Parties" and each, a "Party")
WHEREAS:
(A) The Parties desire to reorganize the capital structure of Song NV and
Song AB on the terms set forth in this Agreement through (i) an
exchange of the Bonds to be implemented through the Dutch Proceedings
together with a pre-arranged Akkoord, (ii) an investment in Song AB
by the Equity Investors, (iii) the acquisition of Arrowhead by Song
AB, (iv) the completion of the Rights Offering, and (v) the issuance
of the Convertible Notes, each upon the terms and subject to the
conditions of this Agreement (the "Restructuring");
(B) The Parties desire to make certain representations, warranties,
covenants and agreements in connection with the transactions
contemplated by this Agreement;
(C) The board of directors of each of Song AB, Song NV, Vattenfall, Stena
and Arrowhead have approved the transactions contemplated in this
Agreement and have authorized the execution and delivery of this
Agreement;
(D) The Participating Bondholders have approved of the transactions
contemplated in this Agreement and have authorized the execution and
delivery of this Agreement and have agreed to support, including
through the voting and exchange of all of their Bonds, the completion
of the implementation of the Restructuring, on the terms and subject
to the conditions of this Agreement; and
(E) Capitalized terms used in this Agreement and not elsewhere defined
shall have the respective meanings set forth in Schedule 1 hereto.
NOW THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound hereby, each of the undersigned Parties agrees
as follows:
ARTICLE 1
THE BOND EXCHANGE
Section 1.1 The Bond Exchange.
(a) Pursuant to resolutions in the form set forth in Annex E-1 hereto
to be proposed for approval at the Song EGM, and subject to the final sanction
of the Akkoord by the Dutch Court in the Dutch Proceedings such that no
further appeal is possible ("Final Sanction"), and in accordance with the
terms and conditions of this Agreement, the Bondholders will receive from Song
AB, in consideration for the transfer to Song AB of their Bonds, including all
accrued and unpaid interest thereon, all claims thereunder and all claims and
rights relating howsoever thereto (the "Bond Exchange"):
(i) for each USD 1,000 principal amount of USD 150,000,000 13.0%
Senior Notes due 2009, (x) 6,649.89 Ordinary Shares and (y) 720.02
Preference Shares;
(ii) for each EUR 1,000 principal amount of EUR 100,000,000
13.0% Senior Notes due 2009, (x) 6,530.66 Ordinary Shares and (y)
707.11 Preference Shares;
(iii) for each EUR 1,000 principal amount of EUR 150,000,000 11
7/8% Senior Notes due 2009, (x) 6,476.81 Ordinary Shares and (y) 701.28
Preference Shares; and
(iv) for each EUR 1,000 principal amount of EUR 175,000,000
123/8% Senior Notes due 2008, (x) 6,746.30 Ordinary Shares and (y) 730.46
Preference Shares;
such that, assuming full participation by Bondholders in the Bond Exchange
(without accounting for the Preference Shares, the Equity Investment, the
Rights Offering, the Convertible Notes and the Arrowhead Acquisition), the
Bondholders would hold 95% of the total outstanding share capital of Song AB.
The Ordinary Shares and Preference Shares to be issued in the Bond Exchange
shall be referred to herein as the "Exchange Shares".
In the event that the aggregate number of Exchange Shares to be issued to a
Bondholder includes a fractional amount of an Ordinary Share or Preference
Share, this will be rounded to the nearest whole Ordinary Share or Preference
Share, with any allocation of 0.50 being rounded upwards.
(b) The consideration offered in the Akkoord shall be in full
satisfaction of any and all claims of Participating Bondholders toward Song
AB, Song NV and their respective current officers and directors relating to or
arising from the ownership of Bonds.
Section 1.2 Participating Bondholder Support.
Subject to the terms and conditions of this Agreement, including, but
not limited to, Article 10 hereto, the Participating Bondholders agree to
support the transactions contemplated in this Agreement, and to take all
actions reasonably necessary to implement the Restructuring including, but not
limited to, the voting of their Bonds at the Creditors' Meeting, in connection
with the approval of the Akkoord and the subscription for the Exchange Shares.
Section 1.3 Bond Exchange Documentation and Timetable.
(a) As soon as practicable following the date hereof, the relevant
Parties shall cooperate in the preparation of all required documentation and
filings relating to the Dutch Proceedings and the Akkoord and other applicable
laws and regulations, including any prospectus required under Dutch, Swedish
or other law.
(b) As soon as practicable following the date of this Agreement, and
in no event later than 10 October 2002, Song NV shall commence the Dutch
Proceedings and file the Akkoord with the Dutch Court pursuant to the
documentation, in the form set forth in Annex C hereto.
(c) The relevant Parties agree to cooperate and to take all
reasonable steps to facilitate the sanction of the Akkoord by the Dutch Court
by 20 December 2002.
(d) Following the Final Sanction, the Participating Bondholders shall
subscribe for Exchange Shares no later than the last date of the first
subscription period for such shares authorized by the relevant Resolution.
(e) Bondholders shall be entitled to subscribe for Exchange Shares
pursuant to the Resolutions relating to the Bond Exchange during each of the
subscription periods provided for under such Resolutions.
(f) Without prejudice to the terms and the force and effect of the
Akkoord, immediately following the last date of each subscription period
authorized by the relevant Resolution, Song AB shall (x) take such measures as
are required by Swedish law to apply to the Swedish Patent and Registration
Office, for registration as soon as practicable of the issue of Exchange
Shares relating to each such subscription period (the date that is the third
Business Day following the date the registration of Exchange Shares is
completed with respect to the initial subscription period is referred to
herein as the "Closing Date"), and (y) take all other measures in connection
with the issue of the Exchange Shares that are necessary for the proper
implementation of the Bond Exchange, including the delivery of Exchange Shares
through VPC AB to Bondholders as soon as reasonably practicable, and in any
event no later than 30 days following the registration of the relevant
Exchange Shares by the Swedish Patent and Registration Office.
(g) The Parties acknowledge and accept that (x) in the event that a
Bondholder does not receive the Exchange Shares to which it would be entitled
pursuant to the Akkoord (it having received Final Sanction) and for which such
Bondholder has taken all necessary actions to validly subscribe for and
receive, then Song NV and Song AB will have failed to satisfy the Akkoord, and
(y) in such event (i) notwithstanding the provisions of Section 8.9, such
Bondholder shall be entitled under the Dutch Bankruptcy Act (Article 280 in
conjunction with Articles 165 and 166) to demand the Dutch Court (by filing a
petition) that the Akkoord as sanctioned be set aside, and (ii) whilst the
Court may, on its own motion, grant an extension of no more than one month to
Song NV and Song AB to perform their obligations under the Akkoord, if the
Court orders the dissolution of the Akkoord, Song NV shall also be declared
bankrupt.
(h) The Parties further acknowledge and accept that (x) if the
Resolutions relating to the issuance of the Exchange Shares become void or (y)
if the registration of the issuance of the Exchange Shares with the Swedish
Patent and Registration Office is not made (for whatever reason), then all
Bonds tendered for subscription shall be returned immediately to the relevant
holders pursuant to Swedish law.
Section 1.4 Liquidation of Song NV.
As soon as reasonably practicable following the date that the
Exchange Shares relating to the final subscription period for the Bond
Exchange are registered with the Swedish Patent and Registration Office, and
in accordance with relevant Dutch law and the requirements of the Tax Rulings,
Song AB (as sole shareholder of Song NV) shall cause Song NV to enter into
voluntary liquidation proceedings, pursuant to which all the assets of Song
NV, including, without limitation, all inter-company receivables and all
shares in its Subsidiaries, shall be distributed in specie to Song AB after
all other creditors, if any, of Song NV have been satisfied in full, and the
corporate existence of Song NV shall thereafter cease.
ARTICLE 2
THE EQUITY INVESTMENT
Section 2.1 The Equity Investment.
On the Closing Date and pursuant to resolutions in the form set forth
in Annex E-2 hereto to be proposed for approval at the Song EGM, (x) Song AB
agrees to issue, and Vattenfall agrees to subscribe for 769,230,769 Ordinary
Shares and (y) Song AB agrees to issue, and Stena agrees to subscribe for
384,615,385 Ordinary Shares (collectively, the "Equity Investment"), such
that, upon completion of the Bond Exchange and the Equity Investment (assuming
full participation in the Bond Exchange but without accounting for the
Preference Shares, the Rights Offering, the Convertible Notes and the
Arrowhead Acquisition):
(i) the Equity Investors would hold 25.80% of the total
outstanding share capital of Song AB; and
(ii) the Bondholders would hold 70.49% of the total outstanding
share capital of Song AB.
Section 2.2 Subscription Price.
The subscription price to be paid in cash by the Equity Investors for
the Ordinary Shares to be issued in the Equity Investment is SEK 0.26 per
share, for a total of SEK 200,000,000 by Vattenfall and SEK 100,000,000 by
Stena (the "Subscription Price"). The Subscription Price shall be paid by the
Equity Investors to Song AB on the Closing Date in cash in immediately
available funds pursuant to written wire transfer instructions delivered by
Song AB to the Equity Investors prior to the Closing Date.
Section 2.3 Closing and Issuance of Ordinary Shares.
(a) Vattenfall and Stena agree to execute all necessary documentation
and undertake all necessary actions on or prior to the Closing Date to
complete the subscription and payment for the Ordinary Shares in the Equity
Investment pursuant to this Article 2 on the Closing Date.
(b) Immediately following the Closing Date, Song AB shall (x) take
such measures as are required by Swedish law to apply to the Swedish Patent
and Registration Office, for registration of the issue of Ordinary Shares
pursuant to the Equity Investment and (y) take all other measures in
connection with the issue of such Ordinary Shares that are necessary for the
proper implementation of the Equity Investment, including the delivery of
Ordinary Shares through VPC AB to the Equity Investors as soon as reasonably
practicable.
ARTICLE 3
THE RIGHTS OFFERING
Section 3.1 The Rights Offering.
Pursuant to a resolution in the form set forth in Annex E-3 hereto to
be proposed for approval at the Song EGM, Song AB shall issue rights to the
Pre-Restructuring Shareholders to subscribe for up to 373,241,648 Ordinary
Shares at a subscription price of SEK 0.26 per share in cash and up to a
maximum of SEK 97,042,829 (the "Rights Offering"). Ordinary Shares that have
not been subscribed for pursuant to the Rights Offering shall then be issued
to any underwriter or guarantee consortium or as otherwise contemplated in
Sections 3.2(c) and (d).
Section 3.2 Rights Offering Procedures.
(a) The Rights Offering shall be conducted in accordance with the
requirements of Swedish law and the laws of the jurisdictions into which the
Rights Offering will be extended (which shall not include the United States).
(b) The relevant Parties shall cooperate in the preparation of the
documentation and filings required to effect the Rights Offering, including
any prospectus required under Swedish law.
(c) Song AB shall engage one or more investment banks to underwrite
the Rights Offering or to otherwise arrange for a consortium which may include
Pre-Restructuring Shareholders, Bondholders and/or other investors to
guarantee the subscription of the Ordinary Shares to be issued in the Rights
Offering, and Song AB shall enter into customary agreements with such banks,
provided that the terms of such arrangements (including related fees and other
costs) are approved by each of the Parties (such approval not to be
unreasonably withheld or delayed), which approval, in the case of the
Participating Bondholders, shall be granted by Bondholder Approval.
(d) In the event Song AB cannot enter into relevant underwriting or
guarantee consortium arrangements as contemplated in Section 3.2(c), the
Parties agree to cooperate in good faith to develop a mutually satisfactory
mechanism to achieve full subscription of the Ordinary Shares to be issued in
the Rights Offering.
Section 3.3 Ownership upon Completion of Rights Offering.
Upon completion of the Rights Offering, and assuming full
subscription of the Rights Offering and full participation in the Bond
Exchange and the Equity Investment (but not accounting for the Preference
Shares, the Convertible Notes, and the Arrowhead Acquisition), the total
outstanding share capital of Song AB shall be allocated as set forth in
Annex J hereto.
ARTICLE 4
THE CONVERTIBLE NOTES ISSUANCE
Section 4.1 The Convertible Notes Issuance.
(a) Pursuant to a resolution in the form set forth in Annex E-4A
hereto to be proposed for approval at the Song EGM, Song AB shall issue rights
to Pre-Restructuring Shareholders to subscribe, on a pro rata basis, for up to
SEK 82,942,589 Convertible Notes, at a subscription price in cash of SEK 1,000
per Convertible Note (the "Convertible Notes Offering").
(b) It is intended that the subscription period for the Convertible
Notes Offering shall correspond to the subscription period for the Rights
Offering.
(c) A summary of the terms of the Convertible Notes are set forth in
Annex D hereto.
(d) On the Closing Date, and pursuant to a resolution in the form set
forth in Annex E-4B hereto to be proposed for approval at the Song EGM, Song
AB agrees to issue and Stena agrees to subscribe for SEK 15,000,000 in
Convertible Notes.
Section 4.2 Convertible Notes Offering Procedures.
(a) The Convertible Notes Offering shall be conducted in accordance
with the requirements of Swedish law and the laws of the jurisdictions into
which the issuance of the Convertible Notes will be extended (which shall not
include the United States).
(b) The relevant Parties shall cooperate in the preparation of the
documentation and filings required to effect the Convertible Notes Offering,
including any prospectus required under Swedish law.
(c) Song AB shall engage one or more investment banks to underwrite
the Convertible Notes Offering or otherwise arrange for a consortium which may
include Bondholders and/or other investors, to guarantee full subscription of
the Convertible Notes to be issued in the Convertible Notes Offering, and
shall enter into customary agreements with such banks, provided that the terms
of such arrangements (including related fees and other costs) are approved by
the Parties (such approval not to be unreasonably withheld or delayed), which
approval, in the case of the Participating Bondholders shall be granted by
Bondholder Approval.
(d) In the event Song AB cannot enter into relevant underwriting or
guarantee consortium arrangements as contemplated in Section 4.2(c), the
Parties agree to cooperate in good faith to develop a mutually satisfactory
mechanism to achieve full subscription of the Convertible Notes.
Section 4.3 Ownership upon Conversion of the Convertible Notes.
Upon full subscription and conversion of the Convertible Notes in
accordance with their terms, and assuming full participation in the Bond
Exchange and full conversion of the Preference Shares, and accounting for the
Equity Investment and full subscription of the Ordinary Shares to be issued in
the Rights Offering (but not accounting for the Arrowhead Acquisition), the
total outstanding share capital of Song AB shall be allocated as set forth in
Annex J hereto.
ARTICLE 5
THE ARROWHEAD ACQUISITION
Section 5.1 The Arrowhead Acquisition.
(a) On 10 January 2003 (the "Effective Date"), Song AB hereby agrees
to purchase, and Vattenfall agrees to sell, 100% of the shares of Arrowhead to
Song AB in consideration for SEK 100,000,000 in cash, such cash consideration
to be paid by Song AB to Vattenfall in immediately available funds pursuant to
written wire transfer instructions delivered by Vattenfall to Song AB prior to
the Effective Date. The acquisition of Arrowhead by Song AB shall be
implemented pursuant to a stock purchase agreement in the form set forth in
Annex K hereto (the "Stock Purchase Agreement").
(b) Pursuant to a resolution in the form set forth in Annex E-5
hereto to be proposed for approval at the Song EGM, Song AB agrees to issue,
and Vattenfall agrees to subscribe for 384,615,385 Ordinary Shares for a
subscription price of SEK 0.26 per Ordinary Share for a total of SEK
100,000,000. Vattenfall shall complete the subscription for the Ordinary
Shares and shall pay the subscription price to Song AB on the Effective Date
in cash in immediately available funds pursuant to written wire transfer
instructions delivered by Song AB to Vattenfall prior to the Effective Date.
The transactions contemplated in Section 5.1(a) and (b) are referred to herein
as the "Arrowhead Acquisition").
(c) Following completion of the Arrowhead Acquisition (assuming (x)
full participation in the Bond Exchange, (y) full conversion of the Preference
Shares and the Convertible Notes and (z) full subscription of the Ordinary
Shares to be issued in the Rights Offering, and accounting for the Equity
Investment), the total outstanding share capital of Song AB shall be as set
forth in Annex J hereto.
Section 5.2 Closing and Issuance of Ordinary Shares.
(a) Vattenfall and Song AB agree to execute all necessary
documentation and undertake all necessary actions on or prior to the Effective
Date to complete (x) the acquisition of Arrowhead and (y) the issuance of the
Ordinary Shares to Vattenfall in the Arrowhead Acquisition pursuant to this
Article 5.
(b) Immediately following the Effective Date, Song AB shall (x) take
such measures as are required by Swedish law to apply to the Swedish Patent
and Registration Office, for registration of the issue of Ordinary Shares in
the Arrowhead Acquisition and (y) take all other measures in connection with
the issue that are necessary for the proper implementation of the Arrowhead
Acquisition, including the delivery of Ordinary Shares through VPC AB to
Vattenfall as soon as reasonably practicable.
ARTICLE 6
CORPORATE GOVERNANCE FOLLOWING THE CLOSING DATE
Section 6.1 Business Plan.
Song AB shall, to the greatest extent practicable taking into account
that the Arrowhead Acquisition shall not have taken place, implement the
Business Plan for the period leading up to the Post-Closing EGM.
Section 6.2 Arrowhead Integration Committee.
Song AB and Vattenfall agree to form an integration committee with
consultative function that will oversee planning in accordance with the
Business Plan and applicable law for the integration of the businesses and
operations of Arrowhead and Song AB and its Subsidiaries following the
Effective Date.
Section 6.3 Song AB Board of Directors.
(a) The Parties intend for the board of directors of Song AB
following the Post-Closing EGM to consist of at least 6 members, with the
initial board of directors following the Post-Closing EGM to be comprised as
follows:
3 members nominated for election by the Participating Bondholders
1 member nominated for election by Vattenfall
1 member nominated for election by Stena
at least 1 member independent from, and mutually acceptable to, the
Participating Bondholders and the Equity Investors.
(b) Consistent with best Swedish market practice, an independent
nominating committee, which shall nominate directors for election to the board
of directors of Song AB that are representative of the post-Restructuring
shareholders of Song AB, is intended to be formed pursuant to a resolution to
be proposed for approval at the first annual general meeting of Song AB
following the Closing Date.
(c) The Parties agree to use their reasonable best efforts,
including, in the case of the Participating Bondholders and the Equity
Investors, to the extent they continue to hold Ordinary Shares, through the
voting of shares in Song AB, to facilitate the implementation of this
Section 6.3.
Section 6.4 Incentive Program.
The relevant Parties intend to develop an incentive compensation
program (the "Incentive Program") for designated senior management of the Song
Group in cooperation with the board of directors of Song AB. The Parties
intend for the Incentive Program (x) to be linked to performance and (y) to
amount to no greater than 5 % of the total outstanding share capital of Song
AB (on a fully diluted basis, assuming full take up of the Incentive Plan and
based on the post-Restructuring capital structure set forth in Annex J). For
the avoidance of doubt, the percentage shareholding amounts set forth in
Articles 1 through 5 herein do not take account of any Ordinary Shares that
may be issued pursuant to the Incentive Program.
ARTICLE 7
CONDUCT OF BUSINESS PENDING THE CLOSING DATE AND THE EFFECTIVE DATE
From the date of this Agreement until the Closing Date, except as
expressly contemplated in this Agreement or as required by law:
(a) Song AB shall, and Song AB shall cause its Subsidiaries to,
conduct its business in the ordinary course and substantially in accordance
with the Business Plan, and shall use all reasonable efforts to preserve
intact its material business organizations and relationships with third
parties (including but not limited to its respective relationships with
customers, suppliers, key employees and business partners).
(b) without limiting the generality of paragraph (a), without the
prior written consent of the other Parties (which consent will not be
unreasonably withheld or delayed), Song AB shall not, and Song AB shall cause
its Subsidiaries not to:
(i) adopt or propose any amendment to its Articles of
Association or other similar corporate organizational documents,
except as may be required in order to consummate the transactions
contemplated by this Agreement;
(ii) (x) declare, set aside or pay any dividend or other
distribution with respect to any of its shares or with respect to the
Bonds, (y) split, combine or reclassify any of its shares, or (z)
issue any shares or authorize the issuance of any other securities in
respect of, in lieu of or in substitution for shares, except for the
issuance of shares upon the exercise of the Stock Options, provided
that such issuances shall be made in accordance with the terms of the
Stock Options;
(iii) repurchase, redeem or otherwise acquire or dispose of
or transfer any debt securities (including any of the Bonds), shares
or other equity or equity equivalent securities or other ownership
interests in Song AB or any Subsidiary other than pursuant to Stock
Options;
(iv) issue, deliver, sell, pledge or otherwise encumber or
subject to any Encumbrance, any of its shares, any of its other
voting securities or any of its securities convertible into, or any
rights, warrants or options to acquire, any such shares, voting
securities or convertible securities, other than pursuant to the
Stock Options;
(v) merge or consolidate with any other person;
(vi) acquire a material amount of assets or property of any
other person or dispose of any material assets or property;
(vii) make a material investment in any other person or
otherwise engage in any similar or other extraordinary business
transaction;
(viii) incur any indebtedness, issue any debt securities or
assume, guarantee or endorse, or otherwise as an accommodation become
responsible for the obligations of any person (other than its
Subsidiaries);
(ix) file for or initiate any voluntary insolvency,
bankruptcy or similar proceeding, or consent to or fail to contest
any such proceeding commenced by a third party, other than as
contemplated in this Agreement;
(x) take any action that would knowingly cause any of the
representations and warranties set forth in this Agreement to be
untrue or incorrect in any material respect; or
(xi) authorize, agree or commit to do any of the foregoing.
ARTICLE 8
ADDITIONAL AGREEMENTS
Section 8.1 Song EGM.
(a) As soon as practicable following the date of this Agreement, Song
AB shall convene a meeting of its shareholders (the "Song EGM"), to be held
prior to the sanction of the Akkoord by the Dutch Court, at which Song AB
shall propose for approval at the Song EGM the resolutions (including any
appendices) attached hereto as Annex E (together, the "Resolutions"),
facilitating the completion of the transactions contemplated in this
Agreement, including, inter alia, the following:
(i) to resolve on amendments to the Articles of Association
of Song AB; and
(ii) to resolve on the Reverse Stock Split; and
(iii) to approve, conditional on the Final Sanction, the
issuances necessary to complete each of (A) the issuance of Ordinary
Shares and Preference Shares in the Bond Exchange, (B) the issuance
of Ordinary Shares in the Equity Investment, (C) the issuance of
Ordinary Shares in the Rights Offering, (D) the issuance of the
Convertible Notes in the Convertible Notes Offering; (E) the issuance
of Convertible Notes to Stena and (F) the issuance of Ordinary Shares
in the Arrowhead Acquisition.
The adoption of all of the Resolutions is referred to herein as the
"Song Shareholder Approval." For the avoidance of doubt, (x) in the event of
any conflict between the text of the Resolutions and this Agreement, the
Resolutions shall prevail and (y) in the event of any conflict between the
Swedish version of the Resolutions and the English translations, the Swedish
version shall prevail.
(b) Song AB agrees, through its board of directors, to recommend to
its shareholders the adoption of the Resolutions.
Section 8.2 Post-Closing EGM.
(a) As soon as practicable following the Closing Date, but allowing
for the Equity Investment and the issuance of Exchange Shares as contemplated
in Section 1.1(d) to be completed, such that the relevant Parties may
participate in such meeting, Song AB shall hold a meeting of its shareholders
(the "Post-Closing EGM"), at which Song AB shall propose for approval
resolutions to elect as directors of Song AB the persons nominated pursuant to
Section 6.3.
(b) Song AB agrees, through its board of directors, to recommend to
its shareholders the approval and adoption of the resolutions contemplated in
Section 8.2(a).
Section 8.3 Preparation of Required Documentation.
(a) As soon as practicable following the date of this Agreement, Song
AB shall prepare, and the other Parties hereto (as applicable) shall provide
reasonable cooperation in the preparation of, all appropriate documentation
and filings (and any necessary amendments or supplements to such documentation
and filings, as the case may be) in order to effect the transactions
contemplated by this Agreement, including (but not limited to):
(i) the documentation required in connection with the Dutch
Proceedings and the Akkoord;
(ii) the documentation and materials required for the Song EGM;
(iii) the prospectus and other documentation required for the
Bond Exchange, the Rights Offering and the issuances of the
Convertible Notes;
(iv) the Stockholm Exchange listing applications contemplated
in Section 8.8 herein; and
(v) any other documentation, materials or filings required in
order to effect the transactions contemplated in this Agreement,
(together, the "Restructuring Documents").
(b) No distribution or filing of, or amendment or supplement to, the
Restructuring Documents shall be made by any Party without providing the other
Parties the reasonable opportunity to review and comment thereon.
(c) Without limiting the foregoing paragraph, neither Song AB nor
Song NV shall execute, finalize, file or distribute to the public any
Restructuring Document or commence the Dutch Proceedings, (i) unless and until
the applicable Restructuring Documents are in all material respects consistent
with and in accordance with this Agreement and (ii) if the applicable
Restructuring Documents include terms that are different from those
contemplated by this Agreement or omit terms that are included in this
Agreement, in a manner that is materially adverse to Bondholders or to the
Equity Investors.
(d) If at any time prior to the completion of any transaction
contemplated in this Agreement for which particular documentation or filings
are prepared, any information relating to any Party is discovered by that
Party which should be set forth in an amendment or supplement to any such
documentation or filings, so that any of such documentation or filings would
not include any misstatement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, the Party that discovers such
information shall promptly notify the other Parties and an appropriate
amendment or supplement describing such information shall be promptly
distributed or filed, as the case may be.
Section 8.4 Tax Matters.
As promptly as practicable following the date hereof, the Parties (as
applicable) shall cooperate in the preparation and filing, if and to the
extent necessary, of a request for any required tax rulings in connection with
the transactions contemplated in this Agreement, including any requests
necessary for the tax-free cancellation of Bonds held by Song AB and Song NV
pursuant to the Akkoord, that may be required to supplement the existing tax
rulings attached as Annex H hereto (collectively, the "Tax Rulings").
Section 8.5 Reverse Stock Split.
The Parties acknowledge that the share amounts, nominal values and
conversion rates set forth in this Agreement relating to the total outstanding
share capital of Song AB do not take into account the Reverse Stock Split, and
that such share amounts, nominal values and conversion rates will be adjusted
to reflect the effectiveness of the Reverse Stock Split. If the Resolution
relating to the Reverse Stock Split is not approved at the Song EGM, the
concerned Parties intend to implement at the Post-Closing EGM a reverse stock
split on substantially the same terms as the Reverse Stock Split.
Section 8.6 Access to Information.
(a) Subject to applicable law and stock exchange regulations, each of
Song AB and Arrowhead shall, and Song AB shall cause its Subsidiaries to,
grant the other Parties and the officers, employees, accountants, counsel,
financial advisors and other representatives of such other Parties, reasonable
access to information and appropriate personnel as the other Parties may
reasonably request for the purpose of completing the transactions contemplated
by this Agreement, subject to there being in place adequate confidentiality
agreements between the relevant Parties.
(b) No review pursuant to this Section 8.6 shall affect any
representation or warranty given by any of the other Parties hereto.
Section 8.7 Confidentiality.
(a) Nothing in this Agreement shall affect the continued validity of
existing confidentiality agreements between any of the Parties.
(b) Subject to applicable law and stock exchange regulations, the
Parties may not disclose the identity of any Participating Bondholder or the
amount of Bonds held by a Participating Bondholder without the prior written
consent of such Participating Bondholder, provided, however, that the
foregoing shall not prohibit Song AB or Song NV from disclosing the
approximate aggregate amount of Bonds held by the Participating Bondholders or
the holders of Bonds as a group.
Section 8.8 Stock Exchange Listings.
(a) Song AB confirms that the Ordinary Shares are listed on the
Stockholm Exchange.
(b) Song AB shall use its reasonable best efforts to arrange for a
daily price quotation to exist for any interim or temporary shares
representing Exchange Shares prior to their issuance to Bondholders.
(c) Song AB shall use its reasonable best efforts to cause (x) the
Preference Shares and (y) the Convertible Notes to be approved for listing on
the Stockholm Exchange prior to the dates on which any Preference Shares and
Convertible Notes are issued, provided, however, that Song AB shall have the
option, as an alternative and upon Bondholder Approval, to arrange for an
alternate market and daily price quotation to exist for the Preference Shares
and the Convertible Notes.
(d) The relevant Parties shall cooperate in the preparation and
filing of any relevant listing applications or in connection with establishing
any alternate market and/or daily price quotation as contemplated in this
Section 8.8.
Section 8.9 Participating Bondholder Support, Forbearance.
(a) Subject to the terms and conditions of this Agreement, the
Participating Bondholders agree, with respect to all of their Locked-Up Bonds
and any additional Bonds which they may hold at the relevant times, (w) to
exchange all such Bonds for Ordinary Shares and Preference Shares pursuant to
the Bond Exchange (x), to consent to any necessary waivers, (y) to exercise
all voting rights which they are entitled to exercise in relation to such
Bonds in favor of the Akkoord, and (z) to approve any other document or take
any other action, that may be reasonably necessary to implement the
consummation of the transactions contemplated in this Agreement.
(b) Subject to the terms and conditions of this Agreement, each of
the Participating Bondholders shall not:
(i) file a notice of default or sale or take any other
action to collect any amounts due under, or to exercise any
enforcement action with respect to, their Bonds, including, without
limitation, instructing the Trustee on how to proceed in the exercise
of any and all remedies; or
(ii) directly or indirectly, sell, assign, transfer,
hypothecate or otherwise dispose of:
(1) any Locked-Up Bonds, except in accordance with the
Bond Exchange, unless the person to which the Locked-Up Bonds are
sold, transferred, hypothecated or otherwise disposed of (x) is
also a Participating Bondholder (in which case the Bonds so
acquired by such Participating Bondholder shall become part of its
Locked-Up Bonds), or (y) (A) delivers to each of the Parties
hereto a signed counterpart of this Agreement agreeing to be bound
by this Agreement and (B) is a Qualified Investor; or
(2) any claim arising from, based on or related to the
Locked-Up Bonds.
(c) Notwithstanding the provisions of Section 8.9(b)(ii), this
Agreement shall in no way be construed to preclude any Participating
Bondholder from buying and selling Bonds that are not Locked-Up Bonds, or to
limit the ability of any Participating Bondholder from buying or selling Bonds
that are not Locked-Up Bonds in its capacity as a trader or market maker, or
from undertaking other ordinary course trading activities.
Section 8.10 Cooperation; Reasonable Best Efforts.
(a) Each of the Parties (as applicable) agrees to use reasonable best
efforts to keep the other Parties informed (which, in the case of the
Participating Bondholders, shall be done by notifying Bondholders' Counsel)
regarding all developments in relation to the Restructuring, and to take all
actions, and to assist and cooperate in doing all things necessary to
consummate, in the most expeditious manner practicable, the transactions
contemplated by this Agreement, including, subject to the terms and conditions
of this Agreement:
(i) the obtaining of all necessary actions or non-actions,
waivers, consents and approvals from Governmental Entities, and shall
keep the other Parties apprised of any communications with and
inquiries or requests for information, undertakings or agreements
made by or to any relevant Governmental Entities, and shall give each
other sufficient notice and opportunity to participate in all
telephone conferences, meetings and other conversations with
officials at all relevant Governmental Entities;
(ii) the obtaining of all necessary consents, approvals or
waivers from third parties;
(iii) the defending of any lawsuits or other legal
proceedings, whether judicial or administrative, challenging this
Agreement or the consummation of the transactions contemplated by
this Agreement, including seeking to have any stay or temporary
restraining order entered by any court or other Governmental Entity
vacated or reversed; and
(iv) the execution and delivery of such other instruments as
may be necessary to consummate the transactions contemplated by this
Agreement.
(b) Subject to the terms and conditions of this Agreement, the
Parties shall not take any action, including, but not limited to, the
initiation of any legal proceedings or bankruptcy or insolvency-type
proceedings, that is inconsistent with, or that would delay consummation of,
the transactions contemplated in this Agreement.
ARTICLE 9
CONDITIONS PRECEDENT
The obligation of each Party to proceed with the transactions
contemplated in this Agreement is subject to satisfaction, on or prior to the
Closing Date, of the following conditions:
(a) Final Sanction;
(b) other than the Resolution relating to the Reverse Stock Split,
the Song Shareholder Approval shall have been obtained and the Resolutions
shall remain valid;
(c) no judgment, order, decree, statute, law, ordinance, rule or
regulation, entered, enacted, enforced or issued by any Governmental Entity of
competent jurisdiction, or any other legal restraint or prohibition, shall be
in effect preventing the consummation of any of the transactions contemplated
in this Agreement, other than the Reverse Stock Split (collectively,
"Restraints"); and
(d) the Tax Rulings shall have been obtained from the relevant
Governmental Entities.
ARTICLE 10
TERMINATION
Section 10.1 Termination.
This Agreement may be terminated:
(a) at any time prior to the Initial Sanction, by mutual written
consent of the Parties;
(b) with automatic effect, without any action on the part of any
Party hereto, following the occurrence of any of the following:
(i) the Song Shareholder Approval shall have been defeated
at the Song EGM or at any adjournment or postponement thereof;
(ii) the Akkoord is not sanctioned by the Dutch Court and
the Dutch Court's failure to sanction the Akkoord is final and
non-appealable; or
(iii) any Restraint having the effect set forth in Section
9.1(c) shall be in effect and shall have become final and
non-appealable.
(c) at any time prior to the Initial Sanction, with written notice to
all Parties, by Song AB or Song NV, if:
(i) any other Party shall have breached or failed to perform
in any material respect any of its representations, warranties,
covenants or other agreements contained in this Agreement, which
breach or failure to perform is incapable of being cured by the
relevant Party or is not cured within 10 days after receipt of
written notice from another Party requiring the same;
(ii) the number of Participating Bondholders represents less
than 50 % of the total principal amount of the Bonds; or
(iii) if either member of the Equity Investors withdraws
from this Agreement pursuant to Section 10.2.
Section 10.2 Withdrawal of Equity Investors
Either member of the Equity Investors may withdraw from this
Agreement at any time prior to the Initial Sanction, with written notice to
all Parties, with no further obligations to or on the part of such Party, and
without any effect on the obligations of the other continuing Equity Investors
member to perform under the terms of this Agreement, if:
(a) any other Party shall have breached or failed to perform
in any material respect any of its representations, warranties,
covenants or other agreements contained in this Agreement, which
breach or failure to perform is incapable of being cured by the
relevant Party or is not cured within 10 days after receipt of
written notice from another Party requiring the same;
(b) the number of Participating Bondholders represents less
than 50 % of the total principal amount of the Bonds;
(c) if either member of the Equity Investors withdraws from
this Agreement pursuant to Section 10.2; or
(d) if either Song AB or Song NV makes a public announcement
to the effect that it does not intend to proceed with the
Restructuring.
Section 10.3 Withdrawal of Participating Bondholders.
Any Participating Bondholder may withdraw from this Agreement at any
time prior to the Initial Sanction, with written notice to all Parties, with
no further obligations to or on the part of such Participating Bondholder, and
without any effect on the obligations of the other continuing Participating
Bondholders to perform under the terms of this Agreement, if:
(a) any other Party shall have breached or failed to perform
in any material respect any of its representations, warranties,
covenants or other agreements contained in this Agreement (including,
for the avoidance of doubt, any breach by Song AB of its obligations
under Section 11.7), which breach or failure to perform is incapable
of being cured by the relevant Party or is not cured within 10 days
after receipt of written notice from another Party requiring the
same;
(b) the number of Participating Bondholders represents less
than 50 % of the total principal amount of the Bonds;
(c) if either member of the Equity Investors withdraws from
this Agreement pursuant to Section 10.2;
(d) if either Song AB or Song NV makes a public announcement
to the effect that it does not intend to proceed with the
Restructuring; or
(e) if Final Sanction shall not have been obtained by 20
December 2002.
Section 10.4 Effect of Termination.
(a) In the event of termination of this Agreement as provided in this
Article 10, this Agreement shall forthwith become void and have no effect,
without any liability or obligation on the part of any Party hereto.
(b) The provisions of this Section 10.4, Article 11 (except for
Sections 11.3 and 11.4) and Section 8.7 shall survive termination of this
Agreement.
(c) Upon (x) the sale by a Participating Bondholder of all of its
Locked-Up Bonds or (y) a withdrawal by a Participating Bondholder pursuant to
Section 10.3, such Participating Bondholder shall immediately cease to be a
Participating Bondholder for the purposes hereof (including, without
limitation, for the purposes of providing any consent or approval hereunder).
Section 10.5 Notice of Termination.
Each Party shall immediately notify the other Parties in writing upon
learning of any event or circumstance that either gives rise or could
potentially give rise to any right of termination or withdrawal under this
Article 10.
ARTICLE 11
MISCELLANEOUS
Section 11.1 Reservation of Rights Reservation of Rights
If the transactions contemplated herein are not consummated, or if
this Agreement is terminated for any reason, the Parties hereto fully reserve
any and all of their respective rights. To the fullest extent permitted by
applicable law and applicable rules of evidence, the Parties agree that this
Agreement and all negotiations relating thereto shall not be admissible into
evidence in any proceeding other than a proceeding to enforce the terms of
this Agreement.
Section 11.2 Several Liability
The agreements, representations and obligations of each of the
Participating Bondholders and each member of the Equity Investors under this
Agreement are, in all respects, several and not joint.
Section 11.3 Announcements
The initial announcement regarding this Agreement is attached as
Annex I hereto and shall be issued as a joint press release by the Parties
(through Song AB) immediately following signature of this Agreement. The
Parties shall not issue any press release or make any public announcement to
the news media or financial markets regarding the negotiation and execution of
this Agreement, unless the terms of such press release or public announcement
have the prior approval of the other Parties, which approval shall not be
unreasonably withheld, conditioned or delayed; provided, however, that such
approval shall not be required if such press release or public announcement is
required by applicable law or stock exchange rule, in which case, if
reasonably practicable, prior to making such press release or public
announcement, such Party shall consult with and consider in good faith the
views of the other Parties in connection therewith. Section 11.4 Intercompany
Debt
Until the appointment of a new board of directors at the Post-Closing
EGM, Song AB and Song NV shall, in respect of intercompany debt owed by their
Subsidiaries, existing or future, maintain such financing in the form of debt
and not equity, and shall not forgive, cancel, waive or otherwise extinguish
any such debt except (x) in order to comply with solvency laws and regulations
applicable to such Subsidiaries and (y) following the Final Sanction, to the
extent necessary to achieve a tax efficient Restructuring.
Section 11.5 Entire Agreement.
Except as set forth in Section 8.7(a), each of the Parties confirms
that this Agreement represents the entire understanding and constitutes the
whole agreement between the Parties in relation to its subject matter and
supersedes all prior agreements, covenants, arrangements, communications,
representations or warranties, whether oral or written, between the parties
with regard to the subject matter of this Agreement.
Section 11.6 Amendments and Waivers.
This Agreement may only be amended by an instrument in writing duly
executed by the Parties; provided, however, that any additional Bondholders
may become Parties to this Agreement by executing a counterpart of this
Agreement. No change, termination, modification or waiver of any provision,
term or condition of this Agreement shall be binding on the Parties, unless
made in writing.
Section 11.7 Costs.
(a) Except as otherwise contemplated in this Agreement, each Party
shall pay its own costs and expenses in connection with the preparation for
and completion of the transactions contemplated by this Agreement, including
but not limited to all fees and expenses of its own representatives, agents,
brokers, legal and financial advisers and authorities.
(b) Prior to the commencement of the Dutch Proceedings, Song NV or
Song AB shall pay in full the outstanding bills and the costs of the
Participating Bondholders' financial and legal advisers incurred up to (and
including) the date of this Agreement in accordance with the terms of their
respective engagement letters with Song NV or Song AB, as the case may be.
(c) Prior to the commencement of the Dutch proceedings, Song NV shall
transfer to the client accounts of: (i) Xxxxxxx XxXxxxxxx LLP, EUR 200,000 as
a fee reserve in respect of general legal advice for the Participating
Bondholders, (ii) Van Doorne, EUR 100,000 as a fee reserve in respect of Dutch
legal advice for the Participating Bondholders, and (iii) Xxxxxxxx, SEK
1,000,000 as a fee reserve in respect of Scandinavian legal advice for the
Participating Bondholders, in each case in accordance with the terms of the
letters from Xxxxxxx XxXxxxxxx LLP, Van Doorne and Xxxxxxxx to Song NV dated
the date of this Agreement. The Participating Bondholders shall instruct their
legal counsel to repay to Song NV (or, if it ceases to exist, Song AB) any
amounts remaining from such fee reserves (including any and all interest
accrued thereon) within 10 (ten) Business Days from the earlier of (x) the
completion of the Restructuring and (y) the date of termination of this
Agreement (after payment of all outstanding fees, costs and disbursements of
the respective counsel from the applicable fee reserves through and including
such date).
(d) Song NV (or, if it ceases to exist, Song AB) shall pay the
reasonable costs and out-of-pocket expenses (except for legal fees, which
shall be governed solely by Section 11.7(c) above) incurred by the
Participating Bondholders in connection with the performance of their
obligations under this Agreement through the Closing Date.
Section 11.8 No Survival of Representations and Warranties.
(a) Each of the Parties makes the representations and warranties set
forth in Annex G hereto.
(b) None of the representations and warranties in this Agreement or
in any instrument or document delivered pursuant to this Agreement shall
survive the Closing Date, except for the representations of Vattenfall
contained in the Stock Purchase Agreement, which shall be governed by the
terms of such agreement, and, except as set forth in the Stock Purchase
Agreement, none of the Parties shall thereafter have any liabilities or
further claim against each other in relation thereto as regards such
representations and warranties.
(c) This Section 11.8 shall not limit any covenant or agreement of
the Parties which by its terms contemplates performance after the Closing
Date;
(d) The Parties agree that (x) in the case of all Parties other than
Vattenfall, the only remedy for a material breach by such Party of its
representations and warranties shall be rights of termination or withdrawal as
contemplated in Article 10, and (y) in the case of any material breach of its
representations and warranties by Vattenfall in the Stock Purchase Agreement,
as set forth in such agreement.
Section 11.9 Third Party Beneficiaries.
Unless expressly stated herein, this Agreement shall be solely for
the benefit of the parties hereto and no other person or entity. For the
avoidance of doubt, the agreements of each Participating Bondholder,
Vattenfall and Stena relating to its subscription of Ordinary Shares,
Preference Shares and Convertible Notes in Articles 1 - 5 of this Agreement
are made for the benefit of all Parties to this Agreement and may, if and to
the fullest extent permitted by applicable law, be enforced by any of such
Parties.
Section 11.10 Notices.
All notices, requests, demands, approvals, waivers and other
communications required or permitted under this Agreement must be in writing
in the English language and shall be deemed to have been received by a party
when:
(a) sent by facsimile, on the day of dispatch thereof,
provided that the transmission is confirmed in writing by the
sender's telecopy;
(b) delivered by hand, on the day of delivery.
All such notices and communications shall be addressed as set out
below or to such other addresses as may be given by written notice in
accordance with this Section 11.10.
If to Song or Song N.V. : Song Networks Holding AB
Attention: Xxxxx Xxxxxxx
Svardvagen 19, PO. Xxx 000
XX-000 00 Xxxxxxxx
Xxxxxx
Fax number: x00 0 0000 00 00
With a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Attention: Xxxxxx Xxxxx
One Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Xxxxxxx
Fax number: x00 00 0000 0000
If to Vattenfall or Arrowhead AB: Vattenfall AB
Att. Mats Xxxxxxxxx
Xxxxxx Xxxxxxxxxx 00
XX 000 00 Xxxxxxxxx
Xxxxxx
Fax number: x00 0 000 00 00
With a copy to: Advokatfirman Glimstedt
Att. Jan Litborn
Hovslagargatan 5
PO Box 16108
XX 000 00 Xxxxxxxxx
Xxxxxx
Fax number: x00 0 000 00 000
If to Stena Stena Adactum AB
Attention: Xxxxxx Xxxxxxxxx/Xxxxxx Xxxxxx
Xxxxxxxxxxxxxxxx 0
XX Xxx 0000
XX-000 00 Xxxxxxxx
Xxxxxx
Fax number: x00 00 000 00 00
With a copy to: Linklaters Advokatbyra AB
Attention: Xxxxxxx Xxxxxx
Strandvagen 7A
PO Box 5402
XX-000 00 Xxxxxxxxx
Xxxxxx
Fax number: x00 0 000 00 00
If to any of the c/x Xxxxxxx XxXxxxxxx LLP
Participating Bondholders: Attention: Xxxxx Xxxxx/Xxxxx Xxxxx
0-00 Xxxxxxx Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Fax number: x00 000 000 0000
Section 11.11 Assignments.
This Agreement shall be binding upon and inure to the benefit of the
successors of the Parties but shall not be assignable by any of the Parties
without the prior written consent of the other Parties.
Section 11.12 Interpretation.
(a) The headings in this Agreement are for convenience only and shall
not affect the interpretation of any provision of this Agreement.
(b) When a reference is made in this Agreement to an Article, Section
or Annex, such reference shall be to an Article or Section of, or an Annex to,
this Agreement unless otherwise indicated.
(c) The table of contents and headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(d) Whenever the words "include," "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation."
(e) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement.
(f) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(g) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such term.
(h) Any agreement, instrument or statute defined or referred to
herein or in any agreement or instrument that is referred to herein means such
agreement, instrument or statute as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by waiver
or consent and (in the case of statutes) by succession of comparable successor
statutes and references to all attachments thereto and instruments
incorporated therein.
(i) References to a person are also to its permitted successors and
assigns.
(j) Reference to a "holder" when used in connection with a
Participating Bondholder or Bondholder are references to such Participating
Bondholder or Bondholder in its capacity as either the beneficial owner of, or
investment manager for or adviser to certain discretionary accounts that own,
Bonds, and the term "held by" when used in connection with a Participating
Bondholder or Bondholder shall be construed accordingly.
(k) References to the "consummation" of a transaction contemplated in
this Agreement (including the Restructuring) shall mean that such transaction
has been fully accomplished in accordance with the terms and conditions of
this Agreement, including, without limitation, that all the conditions to such
transaction set out in this Agreement have been satisfied.
Section 11.13 Severability.
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, such provision shall be interpreted to be only
so broad as is enforceable. Upon such determination that any term or other
provision is invalid or unenforceable, the Parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
Parties as closely as possible to the fullest extent permitted by applicable
law in an acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the extent possible.
Section 11.14 Governing Law and Disputes.
(a) This Agreement shall be governed by, and construed in accordance
with, the laws of The Kingdom of Sweden, without regard for any principles of
conflicts of laws thereof.
(b) Any dispute, controversy or claim arising out of or in connection
with the Agreement, or the breach, termination or invalidity thereof, shall be
settled by arbitration in accordance with the Swedish Act on Arbitration (Sw:
lagen om skiljeforfarande).
(c) The arbitral tribunal shall be composed of three arbitrators, all
of which shall appointed by the Stockholm Chamber of Commerce.
(d) In the event that a request for arbitration between any of the
Parties has been filed, the requesting Party shall notify all other Parties of
the request for arbitration. Notifications to Bondholders shall be deemed
provided if given to the Bondholders' Counsel.
(e) If an arbitral proceeding between two or more Parties to the
Agreement have been initiated, another Party to the Agreement who wishes to
initiate an arbitral proceeding against any Party, shall submit its request
for arbitration to the arbitral tribunal. The arbitral tribunal shall, after
having consulted the Parties in the ongoing arbitration proceeding and the
Parties to the new arbitration proceeding, decide whether or not disputes
shall be tried in the same proceeding and by the same arbitral tribunal. The
arbitral tribunal's decision shall be based on the rules on consolidation in
Chapter 14 of the Swedish Civil Procedural Code (Sw 14 kap. rattegangsbalken).
(f) If the arbitral tribunal considers the new request to be
submitted at such a late stage of the proceedings that a consolidation would
delay the proceedings unacceptably, the arbitral tribunal shall decide that
the disputes shall be tried separately.
(g) If two or more proceedings have been consolidated, the arbitral
tribunal may subsequently, after having given due opportunity to the Parties
in the proceedings to express their views on the matter, decide that a
particular dispute or particular disputes referred to it shall be tried
separately.
(h) The arbitral tribunal may dispose of the disputes referred to it
by rendering one or several awards. This shall not limit the power of the
arbitral tribunal to render separate awards for separate issues or parts of
the matters in dispute.
(i) The place of arbitration shall be Stockholm.
(j) The language to be used in the proceedings shall be English.
(k) All meetings and hearings shall be in private unless the Parties
agree otherwise. The Parties may not disclose or communicate to any person
information concerning the arbitration or the award or information disclosed
during the proceedings, other than as required to enforce its rights under the
award or prescribed by relevant Stock Exchange regulation. This information is
to be treated as strictly confidential by the Parties.
Section 11.15 Enforcement of Agreement.
The Parties agree that money damages or other remedy at law would not
be sufficient or adequate remedy for any breach or violation of, or any
default under, this Agreement by them and that in addition to all other
remedies available to them, each of them shall be entitled to the fullest
extent permitted by law to an injunction restraining such breach, violation or
default or threatened breach, violation or default and to any other equitable
relief, including, without limitation, specific performance, without bond or
other security being required.
Section 11.16 Counterparts; Effectiveness.
This Agreement may be executed in two or more separate counterparts,
each of which shall be deemed to be an original but all of which shall
constitute one and the same agreement.
[Signature Pages to Follow]
IN WITNESS HEREOF, the Parties have caused this Agreement to be duly
executed as of the day and year first above written.
SONG AB . SONG NV
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxx
----------------- -----------------
Name: Xxxx Xxxxxxxx Name: Xxxxx Xxxxxxx
Title: Chairman of the Board Title: Board Member
By: /s/ Xxxxxxxx Xxxxxx
-----------------
Name: Xxxxxxxx Xxxxxx
Title: Board Member
VATTENFALL AB STENA ADACTUM AB
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxxxx
-------------------- ---------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxxxx
Title: Vice President Title: Managing Director
ARROWHEAD AB
By: /s/ Xxxxxxx Xxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxx
Title: Chairman of the Board
By: /s/ Xxxxxxx Xxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxx
Title: Board Member, CFO
PARTICIPATING BONDHOLDERS
ABERDEEN ASSET MANAGERS LIMITED, as agent for and on behalf of discretionary
managed clients
By: /s/ Colin Xxxxxxxxx Xxxx Xxxxxx
------------------------------------
Name: Colin Xxxxxxxxx Xxxx Xxxxxx
Title: Director
Real Estate Opportunities Limited
Jove Investment Trust PLC
The Technology and Income Trust
Aberdeen High Yield Bond Unit Trust
Aberdeen International High Yield Bond Fund
Xxxxxx Xxxxxx
The American Monthly Income Trust Limited
Xxxxxx Emerging Growth & Income Trust PLC
ARES Leveraged Investment Fund, L.P.
By: ARES Management, L.P.
Its: General Partner
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
ARES Leveraged Investment Fund II, L.P.
By: ARES Management II, L.P.
Its: General Partner
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
ARGON INVESTMENTS LIMITED
By: /s/ XX Xxxxxx
------------------------------------
Name: XX Xxxxxx
Title: Director
DUNROSS & CO AB
By: /s/Sven Nordseldt
------------------------------------
Name: Sven Nordseldt
Title: Managing Director
GADUS INTERNATIONAL LIMITED
By: /s/ XX Xxxxxx
------------------------------------
Name: XX Xxxxxx
Title: Director
GORAN ENTERPRISES LIMITED
By: /s/ XX Xxxxxx
------------------------------------
Name: XX Xxxxxx
Title: Director
JPMORGAN CHASE BANK as Agent
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
HIGH YIELD VARIABLE ACCOUNT, a separate account of Sun
Life Assurance Company of Canada (U.S.) (HYVA)
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorised Representative and not individually
MFS FUNDS, SICAV on behalf of one of
its compartments, MFS Funds-U.S. High Yield Bond Fund (IGF)
By its subinvestment adviser,
Massachusetts Financial Services Company
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Duly Authorised Representative and not individually
MFS INSTITUTIONAL TRUST on
behalf of one MFS Institutional High Yield Fund (IHY)*
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Duly Authorised Representative and not individually
* A copy of the Declaration of Trust of each of the above (each a "Trust") is
on file with the Secretary of State of The Commonwealth of Massachusetts. You
acknowledge that the obligations of or arising out of this instrument are not
binding upon any of the Trust's trustees, officers, employees, agents or
shareholders individually, but are binding solely upon the assets and property
of the Trust in accordance with its proportionate interest hereunder. If this
instrument is executed by the Trust on behalf of one or more series of the
Trust, you further acknowledge that the assets and liabilities of each series
of the Trust are separate and distinct and that the obligations of or arising
out of this instrument are binding solely upon the assets or property of the
series on whose behalf the Trust has executed this instrument. If the Trust
has executed this instrument on behalf of more than one series of the Trust,
you also agree that the obligations of each series hereunder shall be several
and not joint, in accordance with its proportionate interest hereunder, and
you agree not to proceed against any series for the obligations of another
series.
MFS MERIDIAN U.S. HIGH YIELD FUND (MHY)
By its subinvestment adviser,
Massachusetts Financial Services Company
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Duly Authorised Representative and not individually
MFS SERIES TRUST III on behalf of
one MFS High Yield Opportunities Fund
(HYO) and MFS High Income Fund (MFH), series of the Trust*
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Duly Authorised Representative and not individually
individually
* A copy of the Declaration of Trust of each of the above (each a "Trust") is
on file with the Secretary of State of The Commonwealth of Massachusetts. You
acknowledge that the obligations of or arising out of this instrument are not
binding upon any of the Trust's trustees, officers, employees, agents or
shareholders individually, but are binding solely upon the assets and property
of the Trust in accordance with its proportionate interest hereunder. If this
instrument is executed by the Trust on behalf of one or more series of the
Trust, you further acknowledge that the assets and liabilities of each series
of the Trust are separate and distinct and that the obligations of or arising
out of this instrument are binding solely upon the assets or property of the
series on whose behalf the Trust has executed this instrument. If the Trust
has executed this instrument on behalf of more than one series of the Trust,
you also agree that the obligations of each series hereunder shall be several
and not joint, in accordance with its proportionate interest hereunder, and
you agree not to proceed against any series for the obligations of another
series.
MFS SPECIAL VALUE TRUST (MFV)*
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Duly Authorised Representative and not individually
* A copy of the Declaration of Trust of each of the above (each a "Trust") is
on file with the Secretary of State of The Commonwealth of Massachusetts. You
acknowledge that the obligations of or arising out of this instrument are not
binding upon any of the Trust's trustees, officers, employees, agents or
shareholders individually, but are binding solely upon the assets and property
of the Trust in accordance with its proportionate interest hereunder. If this
instrument is executed by the Trust on behalf of one or more series of the
Trust, you further acknowledge that the assets and liabilities of each series
of the Trust are separate and distinct and that the obligations of or arising
out of this instrument are binding solely upon the assets or property of the
series on whose behalf the Trust has executed this instrument. If the Trust
has executed this instrument on behalf of more than one series of the Trust,
you also agree that the obligations of each series hereunder shall be several
and not joint, in accordance with its proportionate interest hereunder, and
you agree not to proceed against any series for the obligations of another
series.
MFS/SUN LIFE SERIES TRUST on
behalf of one of its series, High Yield Series (HYS)*
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Duly Authorised Representative and not individually
* A copy of the Declaration of Trust of each of the above (each a "Trust") is
on file with the Secretary of State of The Commonwealth of Massachusetts. You
acknowledge that the obligations of or arising out of this instrument are not
binding upon any of the Trust's trustees, officers, employees, agents or
shareholders individually, but are binding solely upon the assets and property
of the Trust in accordance with its proportionate interest hereunder. If this
instrument is executed by the Trust on behalf of one or more series of the
Trust, you further acknowledge that the assets and liabilities of each series
of the Trust are separate and distinct and that the obligations of or arising
out of this instrument are binding solely upon the assets or property of the
series on whose behalf the Trust has executed this instrument. If the Trust
has executed this instrument on behalf of more than one series of the Trust,
you also agree that the obligations of each series hereunder shall be several
and not joint, in accordance with its proportionate interest hereunder, and
you agree not to proceed against any series for the obligations of another
series.
MFS VARIABLE INSURANCE TRUST
on behalf of MFS High Income Series (VHI)*
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Duly Authorised Representative and not individually
* A copy of the Declaration of Trust of each of the above (each a "Trust") is
on file with the Secretary of State of The Commonwealth of Massachusetts. You
acknowledge that the obligations of or arising out of this instrument are not
binding upon any of the Trust's trustees, officers, employees, agents or
shareholders individually, but are binding solely upon the assets and property
of the Trust in accordance with its proportionate interest hereunder. If this
instrument is executed by the Trust on behalf of one or more series of the
Trust, you further acknowledge that the assets and liabilities of each series
of the Trust are separate and distinct and that the obligations of or arising
out of this instrument are binding solely upon the assets or property of the
series on whose behalf the Trust has executed this instrument. If the Trust
has executed this instrument on behalf of more than one series of the Trust,
you also agree that the obligations of each series hereunder shall be several
and not joint, in accordance with its proportionate interest hereunder, and
you agree not to proceed against any series for the obligations of another
series.
XXXXXX XXXXXXX INVESTMENT MANAGEMENT
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Director
XXXXX XXXXXXXX
As authorized representative of Bianda Estates Ltd.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Investor
XXXXXX XXXXXXXX
As authorized representative of EIB 18007 Insurance
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
XXXXX XXXXXXXX
As authorized representative of Safe Investment Anstalt
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Investor
XXXXXX XXXXXXXX
As authorized representative of Vasastadan Konsult AB
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
XXXXX XXXXXXXX
As authorized representatives of Wellington Commercial Enterprises Ltd.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Investor
POMOR HOLDINGS LIMITED
By: /s/ XX Xxxxxx
-----------------------------
Name: XX Xxxxxx
Title: Director
RMF UMBRELLA SICAV - MI FONDS HIGH YIELD EUROPE
By: /s/ Xxxxxxx Hem /s/ Xxxx Xxxx
------------------------- ---------------------
Name: Xxxxxxx Hem Name: Xxxx Xxxx
Title: Director Title: Director
RMF UMBRELLA SICAV -RMF HIGH YIELD OPPORTUNITIES
By: /s/ Xxxxxxx Hem /s/ Xxxx Xxxx
------------------------- ---------------------
Name: Xxxxxxx Hem Name: Xxxx Xxxx
Title: Director Title: Director
Executive Investment Bond Number 7742 with Royal Skandia Life
Assurance Ltd (Isle of Man)
By: /s/ Xxxxxx Xxxxxxx
-----------------------
Name: Xxxxxx Xxxxxxx
Title: Portfolio Manager
SISU CAPITAL LIMITED
By: /s/ Xxx Xxxxxxx
-----------------------
Name: Xxx Xxxxxxx
Title: CEO
SWISS LIFE HIGH YIELD STRATEGIES LTD -
SWISS LIFE EUROPEAN FUND
By: /s/ Xxxxxx Gut /s/ Xxxxxxx Xxxx
--------------------------- ---------------------
Name: Xxxxxx Gut Name: Xxxxxxx Xxxx
Title: Director Title: Director
ALLIED XXXXXX ASSURANCE PLC
On behalf of Threadneedle
Investments
By: /s/ Xxxxx Xxxxxxxx
-----------------------
Name: Xxxxx Xxxxxxxx
Title: Fund Manager
