EXHIBIT 3.1
Draft
Underwriting Agreement
Montreal, Quebec
March [18], 2004
Telesystem International Wireless Inc. (TIW)
▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Ladies and Gentlemen:
We understand that Telesystem International Wireless Inc. (the "Company"), a
corporation organized under the laws of Canada, proposes, subject to the terms
and conditions stated herein, to issue and sell to the underwriters named in
Schedule I hereto (the "Underwriters"), represented by BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc.
and ▇▇ ▇▇▇▇▇▇ Securities Inc. (the "Representatives"), [o] common shares of the
Company and, at the election of the Underwriters, up to an additional 15 percent
of such number of common shares of the Company. We also understand that
Telesystem Ltd., ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ Inc., U.F. Investments (Barbados) Ltd., JPMP
TIW EH, LP, ▇.▇. ▇▇▇▇▇▇ Partners (BHCA), L.P., AOF Investment N.V., CAIP
Investment N.V., CEA Investment N.V., EEIF Melville B.V., EEIF Czech N.V., and
Emerging Europe Infrastructure Fund C.V. (each a "Selling Shareholder" and
together the "Selling Shareholders") propose, subject to the terms and
conditions stated herein, to sell to the Underwriters an aggregate of [o]
previously issued common shares of the Company and, at the election of the
Underwriters, up to an additional 15 percent of such number of previously issued
common shares of the Company sold by each Selling Shareholder. The aggregate of
[o] common shares of the Company to be sold by the Company and the Selling
Shareholders to the Underwriters are herein called the "Firm Shares" and the
aggregate of up to [O] common shares of the Company to be sold by the Company
and the Selling Shareholders to the Underwriters at the election of the
Underwriters are herein called the "Optional Shares". The Firm Shares and the
Optional Shares are herein collectively called the "Shares". The common shares
of the Company outstanding from time to time are herein called "Common Shares".
The Company and the Selling Shareholders understand that the
Underwriters are currently soliciting offers to purchase the Common Shares and
propose to make a public offering of the Shares in all of the provinces of
Canada and in the United States upon the terms set forth in the Canadian
Preliminary Prospectus (as defined below) and the U.S. Preliminary Prospectus
(as defined below) as soon as they deem advisable after this Agreement has been
executed and delivered. The Company and the Selling Shareholders also understand
that the Underwriters propose to offer the Shares in private placements to
institutional or other qualified investors outside Canada and the United States
(in the United Kingdom, Germany and Italy). The Company has, in connection with
the proposed sales, undertaken to qualify for sale in the several Canadian
provinces where the Company is a reporting issuer the Shares through a
prospectus in compliance with the securities laws of those several provinces of
Canada and to prepare and file a registration statement in compliance with the
federal securities laws of the United States.
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The Company has prepared and filed with the Quebec Autorite des
marches financiers (the "Reviewing Authority") and the provincial securities
regulatory authorities (the "Qualifying Authorities") in each of the other
provinces of Canada (the "Qualifying Provinces"), a preliminary short-form base
PREP prospectus relating to the Shares (in the English and French languages, as
applicable, the "Canadian Preliminary Prospectus"). The Reviewing Authority has
been designated by the Company as the jurisdiction regulating the offering of
the Shares in Canada, and the Canadian Preliminary Prospectus has been filed
with the Reviewing Authority and the Qualifying Authorities pursuant to National
Policy 43-201 and the equivalent notice published by the Reviewing Authority.
The Company has obtained an MRRS Decision Document (as defined in National
Policy 43-201) dated the date of filing issued by the Reviewing Authority. The
Company has also prepared and filed with the United States Securities and
Exchange Commission (the "Commission") a registration statement on Form F-10
(File No. 333-113294) covering the registration of the Shares under the
Securities Act of 1933, as amended (the "Securities Act"), including the
Canadian Preliminary Prospectus (with such deletions therefrom and additions
thereto as are permitted or required by Form F-10 and the applicable rules and
regulations of the Commission) (the "U.S. Preliminary Prospectus").
The Company (a) has prepared and filed (i) with the Reviewing
Authority and the Qualifying Authorities, a final short-form base PREP
prospectus relating to the Shares (in the English and French languages, as
applicable) omitting the PREP information (as hereinafter defined) (the
"Canadian Final PREP Prospectus") in accordance with the rules and procedures
established pursuant to National Instrument 44-103 for the pricing of securities
after the final receipt for a prospectus has been obtained (the "PREP
Procedures"), and (ii) with the Commission, an amendment to such registration
statement, including the Canadian Final PREP Prospectus (with such deletions
therefrom and additions thereto as are permitted or required by Form F-10 and
the applicable rules and regulations of the Commission) (the "U.S. Final PREP
Prospectus"), and (b) will prepare and file, promptly after the execution and
delivery of this Agreement, (i) with the Reviewing Authority and the Qualifying
Authorities, in accordance with the PREP Procedures, a supplemented prospectus
setting forth the PREP Information (in the English and French languages, as
applicable) (the "Canadian Supplemental PREP Prospectus"), and (ii) with the
Commission, in accordance with General Instruction II.L of Form F-10 ("General
Instruction II.L"), the Canadian Supplemental PREP Prospectus (with such
deletions therefrom and additions thereto as are permitted or required by Form
F-10 and the applicable rules and regulations of the Commission) (the "U.S.
Supplemental PREP Prospectus"). The information, including that related to the
exercise of the Discount Cash Option (as defined in the Canadian Final PREP
Prospectus), included in the Canadian Supplemental PREP Prospectus that is
omitted from the Canadian Final PREP Prospectus for which an MRRS Decision
Document has been obtained from the Reviewing Authority and the Qualifying
Authorities but that is deemed under the PREP Procedures to be incorporated by
reference into the Canadian Final PREP Prospectus as of the date of the Canadian
Supplemental PREP Prospectus is referred to herein as the "PREP Information".
Each prospectus relating to the Shares (a) used in Canada (i) before
an MRRS Decision Document for the Canadian Final PREP Prospectus has been
obtained from the Reviewing Authority and the Qualifying Authorities or (ii)
after such MRRS Decision Document has been obtained and prior to the execution
and delivery of this Agreement, or (b) used in the United States (i) before the
time such registration statement on Form F-10 became effective or (ii) after
such effectiveness and prior to the execution and delivery of this Agreement, in
each
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case, including the documents incorporated by reference therein, that omits the
PREP Information, is herein called a "Preliminary Prospectus". Such registration
statement on Form F-10, including the exhibits thereto and the documents
incorporated by reference therein, as amended at the time it became effective
and including the PREP Information, is herein called the "Registration
Statement". The prospectus included in the Registration Statement at the time it
became effective, including the documents incorporated by reference therein, is
herein called the "U.S. Prospectus", except that if a U.S. Supplemental PREP
Prospectus containing the PREP Information is thereafter furnished to the
Underwriters after the execution of this Agreement (whether or not such
prospectus is required to be filed pursuant to the applicable rules and
regulations of the Commission under the Act), the term "U.S. Prospectus" shall
refer to such U.S. Supplemental PREP Prospectus, including the documents
incorporated by reference therein. The Canadian Final PREP Prospectus for which
an MRRS Decision Document has been obtained from the Reviewing Authority and the
Qualifying Authorities, including the documents incorporated by reference
therein, is herein referred to as the "Canadian Prospectus", and after the
execution of this Agreement, when a Canadian Supplemental PREP Prospectus
containing the PREP Information is filed with the Reviewing Authority and the
Qualifying Authorities, the term "Canadian Prospectus" shall refer to such
Canadian Supplemental PREP Prospectus, including the documents incorporated by
reference therein. Any amendment to the Canadian Prospectus or the U.S.
Prospectus, any amended or supplemental prospectus or any document that is
deemed to be incorporated by reference into the Canadian Prospectus and the U.S.
Prospectus that may be filed by or on behalf of the Company under the securities
laws of the Province of Quebec or the Qualifying Provinces or with the
Commission under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the expiry of the period of distribution of the Shares, is
referred to herein collectively as the "Supplementary Material".
The Company has prepared and filed with the Commission an appointment
of agent for service of process upon the Company on Form F-X in conjunction with
the filing of the Registration Statement (the "Form F-X").
All applicable securities laws in the Province of Quebec and each of
the Qualifying Provinces and the respective rules and regulations made
thereunder together with all applicable policy statements, blanket orders or
rulings, notices and instruments (including, without limitation, the PREP
Procedures) are hereinafter called the "Canadian Securities Laws".
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter as set forth below
in this Section 1.
(a) The Company meets the general eligibility requirements for use of
a short-form prospectus under National Instrument 44-101, for use of a shelf
prospectus under National Instrument 44-102 and for use of Form F-10 under the
Securities Act.
(b) An MRRS Decision Document has been obtained from the Reviewing
Authority and the Qualifying Authorities in respect of the Final PREP Prospectus
and no order suspending the distribution of the Shares has been issued by the
Reviewing Authority, any of the Qualifying Authorities, any stock exchange in
Canada or the United States or, to the knowledge of the Company, any court and
no proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated, and any request on the part of the
Reviewing Authority or any Qualifying Authority for additional information from
the Company in connection with the offering contemplated herein has been
complied with. The
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Registration Statement has become effective under the Securities Act and no stop
order suspending the effectiveness of the Registration Statement has been issued
under the Securities Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are contemplated
by the Commission, and any request on the part of the Commission for additional
information from the Company in connection with the offering contemplated herein
has been complied with.
(c) As of each Time of Delivery, no order suspending the distribution
of the Shares will have been issued by the Reviewing Authority, any of the
Qualifying Authorities, any stock exchange in Canada or the United States or, to
the knowledge of the Company, any court and no proceedings for that purpose will
have been instituted or will be pending or, to the knowledge of the Company,
will be contemplated, no stop order suspending the effectiveness of the
Registration Statement will have been issued under the Securities Act and no
proceedings for that purpose, to the knowledge of the Company, will have been
instituted, be pending or will be contemplated by the Commission, and any
request on the part of the Reviewing Authority, any Qualifying Authority or the
Commission for additional information from the Company in connection with the
offering contemplated herein, if any, will have been complied with.
(d) At the time the Registration Statement became effective under the
Securities Act and at all times subsequent thereto up to and including each Time
of Delivery:
(i) the Canadian Prospectus complied and will comply as to form in all
material respects with Canadian Securities Laws;
(ii) the U.S. Prospectus conformed and will conform to the Canadian
Prospectus except for such deletions therefrom and additions thereto as are
permitted or required by Form F-10 and the applicable rules and regulations
of the Commission;
(iii) the Registration Statement and any amendments thereof or
supplements thereto complied and will comply as to form in all material
respects with the applicable requirements of the Securities Act and the
respective rules and regulations of the Commission thereunder, and the Form
F-X and any amendments thereof or supplements thereto complied and will
comply as to form in all material respects with the requirements of the
Securities Act and the respective rules and regulations of the Commission
thereunder;
(iv) subject to paragraph (e) below, none of the Canadian Prospectus,
the U.S. Prospectus, the Registration Statement, or any amendments or
supplements to the Canadian Prospectus, the U.S. Prospectus or the
Registration Statement contained or will contain any untrue statement of a
material fact or omitted or will omit to state any material fact required
to be stated therein or necessary in order to make the statements therein
not misleading; and
(v) subject to paragraph (e) below, each of the Canadian Prospectus,
the U.S. Prospectus, any Supplementary Material or any supplement or
amendment thereto constituted and will constitute full, true and plain
disclosure of all material facts relating to the Company and its
subsidiaries (the term "subsidiary" as used here and hereinafter, includes
MobiFon, S.A. ("MobiFon"), Cesky Mobil a.s. ("Cesky Mobil") and entities in
which the Company has, directly or indirectly, a greater than 50% equity
interest and
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entities in which the Company has, directly or indirectly, control through
voting interests or otherwise, with the exception of Dolphin Telecom plc
and its subsidiaries), taken as a whole, and the Shares, and did not and
will not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
light of the circumstances in which they were made, not misleading;
(e) provided, however, that with respect to clauses (iv) and (v)
above, the Company makes no representations or warranties as to any statements
or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of an Underwriter through the
Representatives expressly for use therein, or with information furnished in
writing to the Company by any Selling Shareholder expressly for use therein.
(f) Each document filed or to be filed with the Reviewing Authority
and the Qualifying Authorities and incorporated by reference in the Canadian
Prospectus complied or will comply when so filed in all material respects with
applicable Canadian Securities Laws; and none of such documents contained or
will contain any untrue statement of a material fact or omitted or will omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; and the documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the U.S. Prospectus at the time they
were or hereafter are filed with the Commission, complied and will comply in all
material respects with the applicable requirements of the Exchange Act.
(g) There are no reports or other information that, in accordance with
the requirements of the Canadian Securities Laws, the Securities Act or the
Exchange Act, must be made publicly available by the Company in connection with
the offering of the Shares that have not been made publicly available as and
when required; there are no documents required to be filed with the Reviewing
Authority, the Qualifying Authorities or the Commission in connection with a
Preliminary Prospectus that have not been filed as and when required pursuant to
the Canadian Securities Laws, the Securities Act or the Exchange Act and
delivered to the Underwriters (except for the PREP Information prior to the
filing of the Supplemental PREP Prospectus).
(h) There are no contracts, documents or other materials required to
be described or referred to in the Canadian Prospectus or to be filed as
exhibits to the Registration Statement that have not or will not be described,
referred to or filed as and when required.
(i) The Company has entered into legally binding agreements with
Highfields Capital I LP, Highfields Capital II LP, Highfields Capital Ltd.,
Perry Partners, L.P. and Perry Partners International Inc. relating to the
purchase by the Company, promptly after the delivery of and payment for the
Shares in accordance with the terms of this Agreement, of an aggregate of
10,942,625 Class A subordinate voting shares of ClearWave N.V.
(j) The audited consolidated financial statements, including any U.S.
GAAP (as defined below) reconciliation, together with the related schedules and
notes included in the Canadian Prospectus, the Registration Statement and the
U.S. Prospectus, present fairly in all material respects the financial
condition, results of operations and cash flows of the Company and its
subsidiaries on a consolidated basis as of the dates and for the periods
indicated, have
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been prepared in conformity with Canadian generally accepted accounting
principles ("Canadian GAAP") applied on a consistent basis throughout the
periods involved (except as otherwise noted therein) and comply with the
applicable accounting requirements of Canadian Securities Laws and the
Securities Act. The audited consolidated financial statements for the years
ended December 31, 2003, 2002 and 2001 and at December 31, 2003 and 2002 have
been reconciled to U.S. generally accepted accounting principles ("U.S. GAAP"),
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein), in accordance with Item 18 of Form 20-F under the
Exchange Act. The selected financial data included in the Canadian Prospectus,
the Registration Statement and the U.S. Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with that
of the audited consolidated financial information included in the Canadian
Prospectus, the Registration Statement and the U.S. Prospectus.
(k) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in the
Canadian Prospectus and the U.S. Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Canadian
Prospectus and the U.S. Prospectus; and, since the respective dates as of which
information is given in the Canadian Prospectus and the U.S. Prospectus, there
has not been any material change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholder's equity or results
of operations of the Company and its subsidiaries, taken as a whole, in each
case otherwise than as set forth or contemplated in the Canadian Prospectus and
the U.S. Prospectus.
(l) The Company and its subsidiaries have good and marketable title to
all real property and good and marketable title to all personal property owned
by them, in each case free and clear of all liens, encumbrances and defects
except such as are described in the Canadian Prospectus and the U.S. Prospectus
or such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries. The Company and its subsidiaries
own or lease all such properties as are necessary to the conduct of the
operations of the Company and its subsidiaries taken as a whole as presently
conducted and as described in the Canadian Prospectus and the U.S. Prospectus.
(m) The Company (i) has been duly incorporated and is validly existing
under the Canada Business Corporations Act, with legal capacity to own or lease,
as the case may be, its properties and to operate its properties and conduct its
business as described in the Canadian Prospectus and the U.S. Prospectus and
(ii) is duly qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such qualification,
other than, with respect to clause (ii), where the failure to be so qualified or
in good standing would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole,
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whether or not arising from transactions in the ordinary course of business (a
"Material Adverse Effect").
(n) MobiFon (i) has been duly organized and is validly existing as a
joint stock company in good standing under the laws of Romania, with legal
capacity to own or lease, as the case may be, its properties and to operate its
properties and conduct its business as described in the Canadian Prospectus and
the U.S. Prospectus and (ii) is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction which
requires such qualification, other than, with respect to clause (ii), where the
failure to be so qualified or in good standing would not have a Material Adverse
Effect.
(o) Cesky Mobil (i) has been duly organized and is validly existing as
a joint stock company in good standing under the laws of the Czech Republic,
with legal capacity to own or lease, as the case may be, its properties and to
operate its properties and conduct its business as described in the Canadian
Prospectus and the U.S. Prospectus and (ii) is duly qualified to do business as
a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification, other than, with respect to
clause (ii), where the failure to be so qualified or in good standing would not
have a Material Adverse Effect.
(p) Each of the Company's other subsidiaries, (i) has been duly
organized and is validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or organized with legal
capacity to own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Canadian Prospectus and the U.S.
Prospectus and (ii) is duly qualified to do business as an extra-provincial
corporation or a foreign corporation and is in good standing under the laws of
each jurisdiction which requires such qualification, other than, with respect to
clause (ii), where the failure to be so qualified or in good standing would not
have a Material Adverse Effect.
(q) The Company has an authorized capitalization as set forth in the
Canadian Prospectus and the U.S. Prospectus, and all of the Company's issued
shares have been duly and validly authorized and issued and are fully paid and
non-assessable; except as set forth in the Canadian Prospectus and the U.S.
Prospectus and except as provided in the share exchange agreement made as of
October 20, 2003 between the Company and Amaranth LLC, no options, warrants or
other rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding; and the
authorized capital of the Company and the Shares conform in all material
respects to the description thereof contained in the Canadian Prospectus and the
U.S. Prospectus.
(r) All the outstanding shares of capital stock of each subsidiary
have been duly and validly authorized and issued and are fully paid and
non-assessable, and, except as otherwise set forth in the Canadian Prospectus
and the U.S. Prospectus, all outstanding shares of capital stock of the
subsidiaries owned by the Company are owned by the Company either directly or
through subsidiaries free and clear of any perfected security interest or any
other security interests, claims, liens or encumbrances, other than where such
security interests, claims, liens or encumbrances would not have a Material
Adverse Effect and other than any security interest without dispossession over
the shares of capital stock of any subsidiary given by the Company for which
releases have not been obtained from the beneficiaries following the performance
by
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the Company of the obligations secured by such security interests (the Company
represents and warrants that any and all such obligations have been performed in
their entirety);
(s) Except as set forth in the Canadian Prospectus and the U.S.
Prospectus, the holders of the outstanding shares of capital stock of the
Company are not entitled to any preemptive or other rights to subscribe for
shares of capital stock of the Company; the issuance and sale of the Shares in
accordance with this Agreement will not be subject to any preemptive or other
rights to subscribe for any securities of the Company (including pursuant to the
registration rights agreement dated December 14, 2001 among the Company and
certain shareholders of the Company, as amended or revised on March 17, 2004)
and, except for the Selling Shareholders in respect of the Common Shares sold
hereunder, no holders of common shares of the Company have rights to require the
Company to file a registration statement under the Securities Act or a
prospectus under Canadian Securities Laws with respect to any such securities or
any Common Shares of the Company or to require the Company to include such
securities or Common Shares with the Shares registered pursuant to the
Registration Statement or qualified under the Canadian Prospectus (including
pursuant such registration rights agreement).
(t) All of the Common Shares, other than (i) the Shares to be issued
and sold by the Company to the Underwriters hereunder and (ii) the Shares issued
or to be issued in connection with the EEIF Transaction and the ClearWave
Transaction (as such terms are defined in the Canadian Final PREP Prospectus),
are duly listed, and admitted and authorized for trading, on the Toronto Stock
Exchange (the "TSX") and the Nasdaq SmallCap Market (the "Nasdaq"). The Shares
to be issued and sold by the Company to the Underwriters hereunder and the
Shares issued or to be issued in connection with the EEIF Transaction and the
ClearWave Transaction have been conditionally approved for listing and for
trading on the TSX and the Nasdaq.
(u) Except as set forth in the Canadian Prospectus and the U.S.
Prospectus, and other than by reason of laws of general application, no
subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such
subsidiary's capital stock, from repaying to the Company any loans or advances
to such subsidiary from the Company or from transferring any of such
subsidiary's property or assets to the Company or any other subsidiary of the
Company.
(v) Prior to the date hereof, neither the Company nor any of its
affiliates has taken any action which is designed to or which has constituted or
which might have been expected to cause or result in stabilization or
manipulation of the price of any security of the Company in connection with the
offering of the Shares.
(w) This Agreement has been duly authorized, executed and delivered by
the Company.
(x) The Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered in
accordance with the terms of this Agreement, will be validly allotted and issued
as fully paid and non-assessable Common Shares and the issuance of such Shares
will not be subject to any preemptive or similar rights, except as described in
the Canadian Prospectus and the U.S. Prospectus.
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(y) Neither the Company nor any of its subsidiaries is (i) in
violation of its charter, bylaws or similar organizational documents or (ii) in
default in the performance or observance of any material obligation, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by which it or
any of its properties or assets may be bound or (iii) in violation of any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or any of
their properties which violation or default would, in the case of clauses (ii)
and (iii) above, either individually or in the aggregate with all other
violations and defaults referred to in this paragraph (if any), have a Material
Adverse Effect.
(z) The execution and delivery by the Company of this Agreement, the
compliance by the Company with its obligations hereunder and the issuance and
sale of the Shares by the Company to the Underwriters hereunder, will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result in
any violation of the provisions of the charter, bylaws or similar organizational
documents of the Company or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the sale of the Shares or the
consummation by the Company of the transactions contemplated by this Agreement,
except such as have been or will be obtained or made no later than the First
Time of Delivery under Canadian Securities Laws and the Securities Act and such
as may be required under the blue sky laws of the various states of the United
States in connection with the purchase and distribution of the Shares by the
Underwriters in the manner contemplated herein and in the Canadian Prospectus
and the U.S. Prospectus.
(aa) Except as described in the Canadian Prospectus and the U.S.
Prospectus, no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator, involving the Company or any of its
subsidiaries, its property or property of its subsidiaries is pending or, to the
knowledge of the Company, threatened that could reasonably be expected to have a
Material Adverse Effect on the performance of this Agreement or the consummation
of any of the transactions contemplated hereby, or could reasonably be expected
to have a Material Adverse Effect.
(bb) The Company is not and, after giving effect to this offering and
sale of the Shares and the application of the proceeds thereof as described in
the Canadian Prospectus and the U.S. Prospectus will not be, required to
register as an "investment company", as such term is defined in the United
States Investment Company Act of 1940, as amended.
(cc) The Company and its subsidiaries own, possess, are validly
licensed under, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary to carry
on the business now operated by them, and except as set forth in the Canadian
Prospectus and the
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U.S. Prospectus and for those infringements or conflicts that would not, singly
or in the aggregate, have a Material Adverse Effect, neither the Company nor any
of its subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to any
material Intellectual Property or of any facts or circumstances which would
render any material Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein.
(dd) Except in each case as set forth in the Canadian Prospectus and
the U.S. Prospectus, the Company and its subsidiaries possess such permits,
licenses, approvals, consents, exemptions, franchises, and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate national,
state, local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses and
with the rules and regulations of the regulatory authorities and governing
entities having jurisdiction with respect thereto; all of the Governmental
Licenses are valid and in full force and effect, and neither the Company nor any
of its subsidiaries has received any notice of, or is aware of, any proceedings
relating to the revocation or modification of any such Governmental Licenses.
(ee) The statistical and market-related data included in the Canadian
Prospectus and the U.S. Prospectus are based on or derived from sources which
the Company believes are reliable and accurate.
(ff) The Company and its subsidiaries have filed all foreign, federal,
state, provincial and local tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so to file
would not have a Material Adverse Effect) and has paid all taxes required to be
paid by them and any other assessment, fine or penalty levied against them, to
the extent that any of the foregoing is due and payable (except for any such
assessment, fine or penalty that is currently being contested in good faith or
as would not have a Material Adverse Effect), except in each case as set forth
in or contemplated in the Canadian Prospectus and the U.S. Prospectus.
(gg) Except as set forth in or contemplated in the Canadian Prospectus
and the U.S. Prospectus, no labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is
threatened or imminent, and the Company is not aware of any existing or imminent
labor dispute by the employees of any of its subsidiaries.
(hh) No proceedings have been commenced for purposes of, and no
judgment has been rendered for, the liquidation, bankruptcy or winding-up of the
Company or any of its subsidiaries.
(ii) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; the Company and its subsidiaries are in compliance with the terms of
such policies and instruments in all material respects; and there are no
material claims by the Company or any of its subsidiaries under any such policy
or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause, except as set forth in or
contemplated in the Canadian Prospectus and the U.S. Prospectus.
11
(jj) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, Canadian federal, provincial and local, and U.S.
federal, state and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (ii) have received
and are in compliance with all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses
as presently conducted and as described in the Canadian Prospectus and the U.S.
Prospectus, and (iii) except as set forth in or contemplated in the Canadian
Prospectus or the U.S. Prospectus, have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants,
except where such non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a Material Adverse Effect.
(kk) In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a Material Adverse Effect, except as set forth
in or contemplated in the Canadian Prospectus and the U.S. Prospectus.
(ll) Neither the Company nor any of its subsidiaries nor any director,
officer, employee or, to its knowledge, other person associated with or acting
on behalf of the Company or any of its subsidiaries has (i) used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity, (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from
corporate funds, (iii) caused the Company or any of its subsidiaries to be in
violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977
when such regulation became applicable to the Company or any of its
subsidiaries, or (iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(mm) The Company has irrevocably designated, appointed and empowered,
CT Corporation as its agent for service of process in any suit or proceeding
based on or arising under the transactions contemplated herein in any U.S.
federal or state court in the Borough of Manhattan in The City of New York.
(nn) There are no transfer taxes or other similar fees or charges
under the federal laws of Canada or the United States or the laws of any
province or state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement.
(oo) Ernst & Young LLP, who have audited certain financial statements
of the Company and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements and schedules included
or incorporated by reference in the Canadian Prospectus and the U.S. Prospectus,
are, and during the periods covered by its reports
12
were, independent auditors with respect to the Company within the meaning of the
Canada Business Corporations Act, objective auditors with respect to the Company
within the meaning of the Code of Ethics of the Ordre des comptables agrees du
Quebec and independent accountants with respect to the Company within the
meaning of the Securities Act and the rules and regulations promulgated by the
Commission thereunder.
(pp) The Company is a reporting issuer not in default of any of its
continuous disclosure obligations under Canadian Securities Laws or under the
Exchange Act.
(qq) Neither the Company nor any of its subsidiaries nor any of its or
their properties or assets has any immunity from the jurisdiction of any court
or from any legal process (whether through service or notice, attachment prior
to judgment, attachment in aid of execution or otherwise) under the federal laws
of Canada or the laws of the Province of Quebec.
(rr) Computershare Trust Company of Canada at its principal offices in
the cities of Montreal and Toronto has been duly appointed as the registrar and
transfer agent in respect of the common shares of the Company.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Shares shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Representations and Warranties of the Selling Shareholders. Each
Selling Shareholder, jointly (conjointement) and not solidarily, represents and
warrants to, and agrees with, the Company and each Underwriter in respect of
the Shares to be sold by it to the Underwriters as set forth below in this
Section 2.
(a) The Selling Shareholder has been duly constituted and is validly
existing as a legal person or entity, in good standing under the laws governing
its constitution, with the requisite power and authority to own the Shares being
sold by it hereunder.
(b) This Agreement has been duly authorized, executed and delivered by
the Selling Shareholder.
(c) The execution and delivery by the Selling Shareholder of this
Agreement, the compliance by the Selling Shareholder with its obligations
hereunder and the sale by the Selling Shareholder of the Shares to the
Underwriters hereunder, will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Selling Shareholder is a party or by which
the Selling Shareholder is bound or to which any of the material property or
assets of the Selling Shareholder is subject, nor will such action result in any
violation of the provisions of the charter, bylaws or similar organizational
documents of the Selling Shareholder or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Selling Shareholder or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the sale of the Shares or the
consummation by the Selling Shareholder of the transactions contemplated by this
Agreement, except such as have been or will be obtained or made no later than
the First Time of Delivery
13
under Canadian Securities Laws and the Securities Act, pursuant to filings with
the National Association of Securities Dealers, Inc. and such as may be required
under the blue sky laws of the various states of the United States in connection
with the purchase and distribution of the Shares by the Underwriters in the
manner contemplated herein and in the Canadian Prospectus and the U.S.
Prospectus.
(d) Except with respect to the rights set forth in the registration
rights agreement and the investor rights agreement described under "Arrangements
with Major Shareholders" in the Canadian Prospectus and the U.S. Prospectus
(which the Selling Shareholder acknowledges and agrees are not applicable to the
transactions contemplated hereunder or for which appropriate consents or waivers
have been given and obtained), the Selling Shareholder is the sole record owner
of the Shares to be sold by it hereunder and has the exclusive right to dispose
of the Shares as provided in this Agreement. The Shares to be acquired from the
Selling Shareholder hereunder will be acquired with good and marketable title,
free and clear of any and all hypothecs, mortgages, liens, charges,
restrictions, security interests, adverse claims, pledges, encumbrances and
demands or rights of others of any nature or kind whatsoever.
(e) No person has any agreement or option, or any right or privilege
(whether by law, pre-emptive or contractual) capable of becoming an agreement or
option, for the purchase, requisition or transfer from the Selling Shareholder
of any of the Shares to be sold by him hereunder, or any interest therein or
right thereto, except with respect to the rights set forth in the investor
rights agreement described under "Arrangements with Major Shareholders" in the
Canadian Prospectus and the U.S. Prospectus (for which appropriate consents or
waivers have been given and obtained), except pursuant to this Agreement, and,
in the case of Telesystem Ltd., except for the rights of Caisse de depot et
placement du Quebec under a debenture convertible into 15,850,000 Shares.
(f) Except with respect to the rights set forth in the investor rights
agreement described under "Arrangements with Major Shareholders" in the Canadian
Prospectus and the U.S. Prospectus, the Selling Shareholder has not previously
granted or agreed to grant any ongoing proxy in respect of the Shares to be sold
by him hereunder or entered into any voting trust, vote pooling or other
agreement with respect to the right to vote, call meetings of shareholders or
give consents or approvals of any kind as to such Shares.
(g) At the time the Registration Statement became effective under the
Securities Act and at all times subsequent thereto up to and including each Time
of Delivery, to the extent that any statements or omissions made in the Canadian
Prospectus or U.S. Prospectus are made in reliance upon and in conformity with
information furnished in writing to the Company by the Selling Shareholder (the
"Selling Shareholder Information") expressly for use therein, the Selling
Shareholder Information in the Canadian Prospectus and the U.S. Prospectus did,
and the Selling Shareholder Information in the Canadian Prospectus or U.S.
Prospectus will, conform in all material respects to the requirements of the
Canadian Securities Laws, the Securities Act and the rules and regulations of
the Commission thereunder and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
(h) The Selling Shareholder is not aware of any material information
concerning the Company which has not been publicly disclosed, the dissemination
of which may reasonably be expected to have a material impact on the market
price or value of the Common Shares. The
14
Selling Shareholder has not taken, directly or indirectly, any action which was
designed to or which has constituted or which might reasonably be expected to
cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
3. Purchase and Sale.
------------------
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to issue and
sell to each of the Underwriters, and each Underwriter agrees, jointly
(conjointement) and not solidarily, to purchase from the Company, the number of
Firm Shares set forth opposite such Underwriter's name in Schedule I hereto, at
a purchase price of $o per Share (the "Purchase Price") to the Company in the
manner payable described in Section 4.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, each Selling Shareholder,
jointly (conjointement) and not solidarily, agrees to sell to each of the
Underwriters, and each Underwriter agrees, jointly (conjointement) and not
solidarily, to purchase from each Selling Shareholder, the number of Firm Shares
set forth opposite such Underwriter's name in Schedule II hereto, at the
Purchase Price per Share to the relevant Selling Shareholder in the manner
payable described in Section 4.
(c) In the event and to the extent the Underwriters exercise their
option to purchase Optional Shares, subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to issue and sell to each of the Underwriters to whom Optional Shares are
allocated, and each Underwriter to whom Optional Shares are allocated agrees,
jointly (conjointement) and not solidarily, to purchase from the Company that
proportion of the maximum number of Optional Shares set forth in Schedule I
hereto as to which such election shall have been exercised and each Selling
Shareholder, jointly (conjointement) and not solidarily, agrees to sell to each
of the Underwriters to whom Optional Shares are allocated, and each Underwriter
to whom Optional Shares are allocated agrees, jointly (conjointement) and not
solidarily, to purchase from each Selling Shareholder that proportion of the
maximum number of Optional Shares set forth under each Selling Shareholder's
name in Schedule II hereto as to which such election shall have been exercised,
in each case at the Purchase Price per Share to the Company or the relevant
Selling Shareholder in the manner payable described in Section 4. If the
Underwriters exercise their option to purchase Optional Shares in part, such
exercise shall be pro rata to the Company and each Selling Shareholder in
accordance with the maximum number of Optional Shares each has agreed to sell as
set out in Schedules I and II hereto (to be adjusted by the Representatives so
as to eliminate fractional shares). To the extent the Underwriters wish to
exercise their option to purchase Optional Shares, the Representatives shall
provide notice to the Company of such exercise within 30 days of the First Time
of Delivery specifying the Second Time of Delivery (as defined below, which Time
of Delivery shall not be earlier than 3 Business Days following the date of the
notice of exercise) and the allocation of the Optional Shares so purchased as
between the Underwriters.
(d) It is understood that, notwithstanding any indication to the
contrary in this Agreement, none of the Shares to be sold by JPMP TIW EH, LP,
▇.▇. ▇▇▇▇▇▇ Partners (BHCA), L.P., AOF Investment N.V., CAIP Investment N.V. or
CEA Investment N.V. pursuant to this Agreement will be sold to ▇.▇. ▇▇▇▇▇▇
Securities Inc. To the extent necessary to give effect to
15
the prior sentence, the Underwriters hereby agree that any allocation of Shares
sold by the Selling Shareholders to the account of ▇.▇. ▇▇▇▇▇▇ Securities Inc.
pursuant to this Agreement shall consist entirely of Shares owned by Selling
Shareholders other than JPMP TIW EH, LP, ▇.▇. ▇▇▇▇▇▇ Partners (BHCA), L.P., AOF
Investment N.V., CAIP Investment N.V. or CEA Investment N.V.
(e) In consideration for the Underwriters' agreement to purchase the
Shares, and in consideration for their services hereunder, the Company and the
Selling Shareholders, jointly (conjointement) and not solidarily, shall pay to
the Representatives, for the account of the Underwriters, a fee of $o per Share
for each Share purchased from each of them by the Underwriters (the
"Underwriting Fee").
4. Delivery and Payment.
---------------------
(a) Delivery of and payment for the Shares hereof shall be, with
respect to the Firm Shares, made at 8:00 a.m. (Montreal Time), on March [25],
2004, or at such time on such later date not more than five Business Days after
the foregoing date as the Underwriters shall designate, which date and time may
be postponed by agreement between the Underwriters and the Company or as
provided in Section 12 hereof (such date and time of delivery and payment for
the Firm Shares being herein called the "First Time of Delivery", and, with
respect to the Optional Shares, made at 8:00 a.m. (Montreal Time) on the
Business Day specified by the Representatives, on behalf of the Underwriters, in
their notice of election to purchase Optional Shares (such date and time of
delivery and payment for the Optional Shares being herein called the "Second
Time of Delivery", and the First Time of Delivery and the Second Time of
Delivery being herein called a "Time of Delivery").
(b) Delivery of the Shares shall be made to BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc.
(for the respective accounts of the Underwriters) against payment through BMO
▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. (for the respective accounts Underwriters) of the Purchase
Price for the Shares, net of the Underwriting Fee, to the Company and each
Selling Shareholder, as the case may be. Payment to the Company shall be made
upon the order of the Company by bank draft or by wire transfer payable in
same-day funds to the account specified by the Company in writing not less than
24 hours prior to the relevant Time of Delivery. Payments to the Selling
Shareholders shall be made upon the respective orders of the Selling
Shareholders either (i) by wire transfer to Computershare Trust Company of
Canada as custodian for such Selling Shareholder (if Shares are delivered by
such Selling Shareholder through such custodian), payable in same-day funds to
Computershare Trust Company of Canada to an account designated by such Custodian
in writing not less than 24 hours prior to the relevant Time of Delivery or (ii)
through the facilities of The Depository Trust Company and/or The Canadian
Depository for Securities Ltd. (if Shares are delivered through such facilities
by such Selling Shareholder) payable in same-day funds to an account designated
by a Selling Shareholder in writing not less than 24 hours prior to the relevant
Time of Delivery. Each Underwriter hereby authorizes BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc., for
its account, to accept delivery of, receipt for, and make payment of the
Purchase Price for, the Shares which it has agreed to purchase. The
Representatives, individually and not as representatives of the Underwriters,
may (but shall not be obligated to) make payment of the Purchase Price for the
Shares to be purchased by any Underwriter whose funds have not been received by
any Time of Delivery, but such payment shall not relieve such Underwriter from
its obligations hereunder.
16
(c) At each Time of Delivery, the Company shall duly and validly
deliver to the Underwriters one or more definitive share certificate(s)
representing the Shares to be sold by it hereunder, endorsed in such name or
names as the Representatives will advise the Company in writing not less than 24
hours prior to such Time of Delivery. The Company shall, prior to such Time of
Delivery, make all necessary arrangements for the exchange of such definitive
certificate(s) at the principal offices of Computershare Trust Company of Canada
in the city of Montreal for one or more global share certificates representing
such number of Shares to be sold by the Company hereunder registered in the name
of The Canadian Depository for Securities Ltd. or The Depository Trust Company
or such other names as shall be designated by the Representatives not less than
24 hours prior to such Time of Delivery. The Company shall pay all fees and
expenses payable to Computershare Trust Company of Canada in connection with the
preparation, delivery, certification and exchange of the definitive share
certificates contemplated by this paragraph and the fees and expenses payable to
or incurred by Computershare Trust Company of Canada in connection with the
initial or additional transfers as may be required in the course of the
distribution of the Shares.
(d) At each Time of Delivery, each Selling Shareholder, directly or
through its custodian Computershare Trust Company of Canada, shall duly and
validly deliver to the Underwriters one or more definitive share certificate(s)
representing the Shares to be sold by it hereunder, endorsed in such name or
names as the Representatives will advise the Company in writing not less than 24
hours prior to such Time of Delivery. Delivery of the Shares by a Selling
Shareholder may also be made through the facilities of The Depository Trust
Company and/or The Canadian Depository for Securities Ltd., to an account
designated by the Representatives to the Company in writing not less than 24
hours prior to such Time of Delivery. The Company and the Selling Shareholders
shall, prior to such Time of Delivery, make all necessary arrangements for the
exchange of such definitive certificate(s), at the principal offices of
Computershare Trust Company of Canada in the city of Montreal for one or more
global share certificates representing such number of Shares to be sold by the
Selling Shareholders hereunder registered in the name of The Canadian Depository
for Securities Ltd. or The Depository Trust Company or such other names as shall
be designated by the Representatives not less than 24 hours prior to such Time
of Delivery. The Company shall pay all fees and expenses payable to
Computershare Trust Company of Canada in connection with the preparation,
delivery, certification and exchange of the definitive share certificates
contemplated by this paragraph and the fees and expenses payable to or incurred
by Computershare Trust Company of Canada in connection with the initial or
additional transfers as may be required in the course of the distribution of the
Shares.
5. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Shares for sale to the public as set forth in the Canadian
Prospectus and U.S. Prospectus and privately to institutional or other qualified
investors in the United Kingdom, Germany, France Italy and Switzerland, in
compliance with the applicable laws of such jurisdictions. Each of the
Underwriters represents and agrees that (i) it has not offered or sold, and will
not offer or sell, any Shares to any persons in the United Kingdom, except to
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995, (ii) it has complied with, and
will comply with, all applicable provisions of the Financial Services and
Markets ▇▇▇ ▇▇▇▇ ("FSMA") of Great Britain with respect to anything done by it
in relation to
17
the Shares in, from or otherwise involving the United Kingdom, and (iii) it will
only issue or pass on in the United Kingdom any document received by it in
connection with the sale of the Shares (which has not been approved for the
purposes of section 21 of the FSMA)to investment professionals falling within
Article 19(5) of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (Financial
Promotion) Order 2001 or to a person to whom the document may otherwise be
lawfully issued or passed on to and will ensure that such document is not relied
upon by any other person).
6. Agreements of the Company.
--------------------------
The Company hereby covenants with the Underwriters and the Selling
Shareholders, and acknowledges that the Underwriters and the Selling
Shareholders are relying on such covenants in entering into this Agreement,
that:
(a) Prior to the filing of the Canadian Preliminary Prospectus, any
Canadian Prospectus, the Registration Statement, the U.S. Preliminary Prospectus
and any U.S. Prospectus, the Company shall have permitted and shall permit the
Underwriters to participate fully in the preparation of such prospectuses and
shall have allowed and shall allow the Underwriters to conduct all due diligence
investigation which they reasonably require.
(b) Contemporaneously with, or immediately prior to, the filing of the
Canadian Prospectus that does not include the PREP Information, the Company
shall have delivered to the Underwriters without charge, in Montreal: (i) a copy
of the Canadian Preliminary Prospectus and the Canadian Prospectus, including
all documents incorporated by reference, in each of the English and French
language signed and certified as required by the Canadian Securities Laws in the
Qualifying Provinces; (ii) opinions of Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin, Quebec counsel
to the Company, dated as of the date of the Canadian Prospectus, in form and
substance satisfactory to the Underwriters, addressed to the Company, its U.S.
counsel, the Underwriters and their counsel, to the effect that the French
language version of the Canadian Preliminary Prospectus and the Canadian
Prospectus, as the case may be, including all documents incorporated by
reference, except for the audited financial statements of the Company, the
schedules and notes thereto and the related auditors' report on such statements
as well as the other financial information forming part of the operating and
financial review and prospects discussion included in the documents included or
incorporated by reference (collectively, "Financial Information") as to which no
opinion need be expressed by such counsel, is in all material respects a
complete and accurate translation of the English language version thereof; (iii)
opinions of Ernst & Young LLP dated as of the date of the Canadian Prospectus,
in form and substance satisfactory to the Underwriters, addressed to the
Company, its counsel, the Underwriters and their counsel, to the effect that the
French language version of the Financial Information contained in the Canadian
Preliminary Prospectus and the Canadian Prospectus, as the case may be is, in
all material respects, a complete and proper translation of the English language
version thereof; and (iv) a "long-form" comfort letter of Ernst & Young LLP,
dated as of the date of the Canadian Prospectus (with the requisite procedures
to be completed by such auditors no later than two Business Days prior to the
date of the Canadian Prospectus), addressed to the Underwriters and the
directors of the Company, in form and substance satisfactory to the
Underwriters, with respect to certain financial and accounting information
relating to the Company in the Canadian Prospectus and the U.S. Prospectus,
including all documents incorporated therein by reference, and (v) the auditors'
comfort letters addressed to the Qualifying Authorities in the Qualifying
Provinces. The deliveries set forth in (i) shall also constitute the Company's
consent to the
18
Underwriters' use of the Canadian Prospectus for the distribution of the Shares
in the Qualifying Provinces in compliance with the provisions of this Agreement
and the Canadian Securities Laws.
(c) The Company will notify the Underwriters promptly, and confirm the
notice in writing, (i) when any amendment to the Registration Statement shall
have been filed with the Commission or shall have become effective, and when any
Canadian Supplemental PREP Prospectus or U.S. Supplemental PREP Prospectus
containing the PREP Information, amended Canadian Prospectus, U.S. Prospectus,
or any Supplementary Material shall have been filed, in which case the Company
shall deliver to the Underwriters all signed and certified copies of such
prospectus in the English and French languages along with all documents similar
to those referred to in Section 6(b)(i), (ii), (iii) and (iv); (ii) of the
receipt of any comments from any Qualifying Authority or the Commission; (iii)
of any request by any Qualifying Authority to amend or supplement the Canadian
Prospectus or for additional information or of any request by the Commission to
amend the Registration Statement or to amend or supplement the U.S. Prospectus
or for additional information; (iv) of any order from any Qualifying Authority
preventing or suspending the use of the Canadian Prospectus or of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement; or of the prevention or suspension of the qualification
of the Shares for offer or sale in any jurisdiction, or of the institution or
threatening of any proceeding for that purpose; and (v) of the issuance by the
Reviewing Authority, any Qualifying Authority, any stock exchange, Nasdaq or any
court of any order having the effect of ceasing or suspending the distribution
of the Shares or the trading in the common shares of the Company, or of the
institution or threatening of any proceeding for any such purpose. The Company
will use its commercial best efforts to prevent the issuance of any such stop
order or of any order preventing or suspending such use or such order ceasing or
suspending the distribution of the Shares or the trading in the Common Shares
and, if any such order is issued, to obtain as soon as possible the withdrawal
thereof.
(d) The Company will give the Underwriters notice of its intention to
file or prepare any amendment or supplement to the Canadian Prospectus, any
amendment to the Registration Statement or any amendment, supplement or revision
to any of the prospectuses included in the Registration Statement and any
Supplementary Material, or any documents incorporated therein, whether pursuant
to Canadian Securities Laws, the Securities Act, the Exchange Act or otherwise,
will furnish the Underwriters with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Underwriters or counsel for
the Underwriters shall object, acting reasonably.
(e) As soon as reasonably practicable, the Company will make generally
available to its security holders and to the Underwriters an earning statement
or statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 under the
Securities Act.
(f) The Company will furnish to the Underwriters and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including any exhibits thereto) and so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Canadian Securities Laws or the
Securities Act, as many commercial copies of each of the Canadian Preliminary
Prospectus, the U.S. Preliminary Prospectus, the Canadian
19
Prospectus and the U.S. Prospectus and any amendment or supplement thereto as
the Underwriters may reasonably request, including any amendment pursuant to
Section 6(l).
(g) The Company will arrange, if necessary, for the qualification of
the Shares for sale in private placements to institutional investors under the
laws of the United Kingdom, Germany, France, Italy and Switzerland if the
Underwriters so request and will maintain such qualifications in effect so long
as required for the distribution of the Shares; provided that in no event shall
the Company be obligated (i) to take any action to qualify a distribution to the
public in any such jurisdiction, (ii) to qualify to do business in any
jurisdiction where it is not now so qualified or (iii) to take any action that
would subject it to service of process in suits, other than, in the case of
clause (iii), those arising out of the offering or sale of the Shares in any
jurisdiction where it is not now so subject.
(h) The Company will not, without the prior written consent of the
Representatives, which consent shall not be unreasonably withheld, offer, sell,
contract to sell, pledge, hypothecate or otherwise dispose of (or enter into any
transaction which is designed to, or could be expected to, result in the
disposition (whether by actual disposition or effective economic disposition due
to cash settlement or otherwise) by the Company or any affiliate of the Company
or any person in privity with the Company or any affiliate of the Company),
directly or indirectly (including (i) filing (or participation in the filing) of
(A) any preliminary prospectus or prospectus under Canadian Securities Laws, (B)
any registration statement with the Commission, and (C) any offering memorandum
or other offering document, (ii) establishment or increase of a put equivalent
position or the liquidation or decrease of a call equivalent position within the
meaning of Section 16 of the Exchange Act, and (iii) entering into a swap or
other derivatives transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership, whether, in the case of
clauses (ii) or (iii) above, settled by delivery of Common Shares or other
securities, in cash or otherwise) in respect of any other Common Shares or any
securities convertible into, or exercisable, or exchangeable for, Common Shares;
or publicly announce an intention to effect any such transaction, for a period
from the date of this Agreement until 90 days after the First Time of Delivery
(the "Lock-Up Period"), provided, however, that the Company may issue and sell
common shares (i) pursuant to any stock option plan, stock ownership plan or
dividend reinvestment plan of the Company in effect at the time this Agreement
is executed (as amended from time to time) or restricted share unit plan
intended to be implemented shortly by the Company, (ii) to Amaranth L.L.C.
pursuant to a share exchange agreement made as of October 20, 2003 and (iii) to
minority shareholders of ClearWave N.V., MobiFon S.A. or TIW Czech N.V.,
provided such issuances or sales are completed on a private placement basis and
if such minority shareholders agree in writing to be bound by the terms of these
restrictions for the remaining term of the Lock-Up Period.
(i) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares.
(j) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and filing with
the Qualifying Authorities and the Commission, as the case may be, of the
Registration Statement (including financial statements and exhibits thereto),
the Form F-X, the Canadian Preliminary Prospectus, the U.S. Preliminary
Prospectus, the Canadian Prospectus, the U.S. Prospectus and each amendment or
20
supplement to any of them; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging)
of such copies of such documents, and all amendments or supplements to any of
them, as may, in each case, be reasonably requested for use in connection with
the offering and sale of the Shares; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Shares; (iv) the
printing (or reproduction) and delivery of this Agreement, any blue sky
memorandum and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Shares; (v) any registration or
qualification of the Shares for offer and sale under the securities or blue sky
laws of the various states of the United States (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to such
registration and qualification); (vi) any filings required to be made with the
National Association of Securities Dealers, Inc. ("NASD") (including filing fees
and the reasonable fees and expenses of counsel for the Underwriters relating to
such filings); (vii) the fees and expenses of the Company's accountants, the
fees and expenses of the Company's financial advisors (other than the
Underwriter Fee payable by each Selling Shareholder), and the fees and expenses
of counsel (including local and special counsel) for the Company; (viii) listing
application and listing fees; (ix) all road-show expenses; and (x) all other
costs and expenses incident to the performance by the Company of its obligations
hereunder.
(k) For a period of three years after the First Time of Delivery, the
Company shall furnish to the Representatives and, upon request, to each
Underwriter, copies of all reports filed with the Commission on Forms 40-F, 20-F
and 6-K, as applicable, or such similar forms as may be designated by the
Commission, annual information forms, management proxy circulars and such other
documents as shall be furnished by the Company to its shareholders generally
(collectively, the "Filings"), except for all such Filings filed by the Company
with the Commission in electronic format on the Electronic Data Gathering,
Analysis and Retrieval system or with the Reviewing Authority or the Qualifying
Authorities in electronic format on the System for Electronic Document Analysis
and Retrieval.
(l) During the period from the date of this Agreement to the
completion of the distribution of the Shares, the Company shall: (i) promptly
notify the Underwriters in writing of (A) any material change (actual,
anticipated, contemplated or threatened, financial or otherwise) in the
business, affairs, operations, assets, liabilities (contingent or otherwise) or
capital of the Company and its subsidiaries taken as a whole; (B) any material
fact that has arisen or been discovered and would have been required to have
been stated in the Canadian Prospectus and U.S. Prospectus had the fact arisen
or been discovered on, or prior to, the date of such Canadian Prospectus and
U.S. Prospectus; (C) any event that occurs as a result of which the Canadian
Prospectus or the U.S. Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to supplement the Canadian
Prospectus or the U.S. Prospectus or amend the Registration Statement to comply
with Canadian Securities Laws or the Securities Act, the Exchange Act, or the
respective rules thereunder; and (D) any change in any material fact (which for
the purposes of this Agreement shall be deemed to include the disclosure of any
previously undisclosed material fact) contained in the Canadian Prospectus and
the U.S. Prospectus, including all documents incorporated by reference, which
fact or change is, or may be, of such a nature as to render any statement in the
Canadian Prospectus or the U.S. Prospectus misleading or untrue or which would
result in any of such document not complying (to the extent that such compliance
is
21
required) with the Canadian Securities Laws, the Securities Act or the Exchange
Act, (ii) promptly, and in any event within any applicable time limitation,
comply, to the satisfaction of the Underwriters, with all applicable filings and
other requirements under the Canadian Securities Laws, the Securities Act and
the Exchange Act and as a result of such fact or change (or any fact or change
notified by any Selling Shareholder pursuant to Section 8(d) below) and (iii)
supply any amended Canadian Prospectus or U.S. Prospectus to the Underwriters in
such quantities as the Underwriters may reasonably request. The Company shall in
good faith discuss with the Underwriters any fact or change in circumstances
(actual, anticipated, contemplated or threatened, financial or otherwise) which
is of such a nature that there is reasonable doubt whether written notice need
be given under this paragraph or Section 8(d) below.
(m) The Company shall apply the net proceeds of the offering and sale
of the Shares in a manner consistent with the description contained in the
Canadian Prospectus and the U.S. Prospectus under the caption "Use of Proceeds".
(n) The Company, during the period when the U.S. Prospectus is
required to be delivered under the Securities Act or the Exchange Act in respect
of the offer and sale of the Shares, will file all documents required to be
filed by the Company with the Commission pursuant to the Exchange Act within the
time periods required by the Exchange Act and the rules and regulations of the
Commission thereunder.
(o) The Company shall not issue any press release or public
announcement between the date hereof and the First Time of Delivery without
first consulting with the Representatives.
7. Agreements of the Underwriters.
-------------------------------
(a) The Underwriters hereby agree to give prompt written notice to the
Company of the completion of the distribution of the Shares and the total
proceeds realized in each of the Qualifying Provinces and in any other
jurisdiction.
(b) The Underwriters and their affiliates selling Shares in the United
States represent to each other that they each are a member in good standing of
the National Association of Securities Dealers, Inc. (the "NASD") or a foreign
bank or dealer not eligible for membership in the NASD. In making sales of the
Shares, the Underwriters and their affiliates (i) that are members of the NASD
agree to comply with all applicable interpretive material ("IM") and rules of
the NASD, including, without limitation, IM-2110-1 (the NASD's interpretation
with respect to free-riding and withholding) and Rule 2740 of the NASD's Conduct
Rules, or (ii) that are foreign banks or dealers agree to comply, as applicable,
with IM-2110-1 and Rules 2730, 2740 and 2750 of the NASD's Conduct Rules as
though they were a member and Rule 2420 of the NASD's Conduct Rules as it
applies to such a nonmember broker or dealer.
22
8. Agreements of the Selling Shareholders.
---------------------------------------
Each Selling Shareholder hereby covenants, jointly (conjointement) and
not solidarily, with the Company and the Underwriters, and acknowledges that the
Company and the Underwriters are relying on such covenants in entering into this
Agreement, that:
(a) The Selling Shareholder will not, without the prior written
consent of the Representatives, which consent shall not be unreasonably
withheld, offer, sell, contract to sell, pledge, hypothecate or otherwise
dispose of (or enter into any transaction which is designed to, or could be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
Selling Shareholder or any affiliate of the Selling Shareholder (which, in the
case of JPMP TIW EH, LP or its affiliates means funds managed directly or
indirectly by ▇▇ ▇▇▇▇▇▇ Partners, LLC) or any person in privity with the Selling
Shareholder or any affiliate of the Selling Shareholder(which, in the case of
JPMP TIW EH, LP or its affiliates means funds managed directly or indirectly by
▇▇ ▇▇▇▇▇▇ Partners, LLC)), directly or indirectly (including (i) filing (or
participation in the filing) of (A) any preliminary prospectus or prospectus
under Canadian Securities Laws, (B) any registration statement with the
Commission, and (C) any offering memorandum or other offering document, (ii)
establishment or increase of a put equivalent position or the liquidation or
decrease of a call equivalent position within the meaning of Section 16 of the
Exchange Act, and (iii) entering into a swap or other derivatives transaction
that transfer to another, in whole or in part, any of the economic benefits or
risks of ownership, whether, in the case of clauses (ii) or (iii) above, settled
by delivery of Common Shares or other securities, in cash or otherwise) in
respect of any other Common Shares or any securities convertible into, or
exercisable, or exchangeable for, Common Shares; or publicly announce an
intention to effect any such transaction, for the Lock-Up Period, provided,
however, that (i) the Selling Shareholder may transfer such Common Shares or
securities to any of its affiliates if such transferee affiliate(s) agree in
writing to be bound by the terms of these restrictions for the remaining term of
the Lock-Up Period and (ii) Telesystem Ltd. may transfer such Common Shares or
securities to Caisse de depot et placement du Quebec or its affiliates pursuant
to the terms of certain debentures convertible into Common Shares outstanding on
the date hereof.
(b) The Selling Shareholder will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares.
(c) Except as agreed between the Selling Shareholder and the Company
as to the allocation of expenses of this offering as between them, the Selling
Shareholder agrees to pay the costs and expenses relating to the following
matters: (i) the delivery of certificates for the Shares sold by it; (ii) the
fees and expenses of its financial advisors and counsel; and (iii) all other
costs and expenses incident to the performance by the Selling Shareholder of its
obligations hereunder.
(d) During the period from the date of this Agreement to the
completion of the distribution of the Shares, the Selling Shareholder shall:
promptly notify the Company and the Underwriters in writing of any material fact
that has arisen or been discovered in relation to its Selling Shareholder
Information and would have been required to have been stated in the Canadian
Prospectus and U.S. Prospectus had the fact arisen or been discovered on, or
prior to,
23
the date of such Canadian Prospectus and U.S. Prospectus to make the statements
therein in the light of the circumstances under which they were made not
misleading.
(e) The Selling Shareholder shall not issue any press release or
public announcement relating to the purchase of the Shares contemplated
hereunder between the date hereof and the First Time of Delivery without first
consulting with the Representatives and the Company.
9. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Shares shall be subject to the accuracy of
the representations and warranties on the part of the Company and the Selling
Shareholders contained herein as of the time of the execution of this Agreement
(the "Execution Time") and each Time of Delivery, to the accuracy of the
statements of the Company and the Selling Shareholders made in any certificates
pursuant to the provisions hereof, to the performance by the Company and each of
the Selling Shareholders of its respective obligations hereunder and to the
following additional conditions:
(a) As of each Time of Delivery, a Canadian Prospectus containing the
PREP Information and a U.S. Prospectus containing the PREP Information shall
have been filed, respectively, with the Reviewing Authority and with the
Qualifying Authorities in accordance with the PREP Procedures and with the
Commission in accordance with General Instruction II.L and the Registration
Statement shall be effective. No order having the effect of ceasing or
suspending the distribution of the Shares or the trading in the Common Shares or
any other securities of the Company shall have been issued or proceedings
therefor initiated or threatened by any securities commission, securities
regulatory authority, stock exchange or Nasdaq, no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued under the Securities Act and no proceeding for that purpose shall have
been initiated or threatened by the Commission, and any request on the part of
the Reviewing Authority, any Qualifying Authority or the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters.
(b) The Company shall have requested and caused Fasken ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Canadian counsel for the Company, to have furnished to the
Underwriters their opinions, dated such Time of Delivery and addressed to the
Company and the Underwriters, in substantially the form set out in Schedule III.
In rendering such opinion, such counsel may rely (i) as to matters
involving the application of laws of any jurisdiction other than the provinces
of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and British Columbia or the federal laws of Canada,
to the extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (ii) as to matters of fact, to
the extent they seem proper, on certificates of responsible officers of the
Company and public officials, and representations in this Agreement. References
to the Canadian Prospectus in this paragraph (c) include any amendments thereto
at such Time of Delivery.
In addition to rendering the opinions set forth above, such counsel
shall also provide the Underwriters with a statement to the effect that such
counsel has participated in the preparation of the Canadian Prospectus and in
conferences with certain officers and other representatives of and counsel for
the Company, representatives of the independent accountants
24
for the Company and representatives of and counsel for the Underwriters in
connection with the preparation of the Canadian Prospectus at which the contents
of the Canadian Prospectus and related matters were discussed and although such
counsel has not independently verified the accuracy, completeness or fairness of
the statements contained in the Canadian Prospectus or any amendment or
supplement thereto, on the basis of such participation, such counsel has no
reason to believe that (i) as of its date, the Canadian Prospectus, as amended
or supplemented, (ii) as of the date of its issue, any amendment or supplement
to the Canadian Prospectus, and (iii) at such Time of Delivery, the Canadian
Prospectus, as amended or supplemented as of such date, included or includes any
untrue statement of a material fact or omitted or omits to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (other than the financial statements
and related schedules and notes thereto and other financial or statistical
information (or charts , tables or graphs representing such information)
included or incorporated by reference therein, as to which such counsel need
express no opinion).
(c) The Company shall have requested and caused Pillsbury Winthrop
LLP, U.S. counsel for the Company, to have furnished to the Underwriters their
opinions, dated such Time of Delivery and addressed to the Company and the
Underwriters, in substantially the form set out in Schedule IV.
In rendering such opinion, such counsel may rely (i) as to matters
involving the application of laws of any jurisdiction other than the State of
New York, State of Delaware or the Federal laws of the United States, to the
extent they deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (ii) as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of the
Company and public officials, and representations in this Agreement. References
to the U.S. Prospectus in this paragraph (c) include any supplements thereto at
such Time of Delivery.
In addition to rendering the opinions set forth above, such counsel
shall also provide the Underwriters with a statement to the effect that such
counsel has participated in the preparation of the Registration Statement and
the U.S. Prospectus and in conferences with certain officers and other
representatives of and counsel for the Company, representatives of the
independent accountants for the Company and representatives of and counsel for
the Underwriters in connection with the preparation of the U.S. Prospectus and
the Registration Statement at which the contents of the U.S. Prospectus and the
Registration Statement and related matters were discussed and although such
counsel has not independently verified the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the U.S. Prospectus or
any amendment or supplement thereto, on the basis of such participation, such
counsel has no reason to believe (a) that the Registration Statement (other than
the financial statements and related schedules and notes thereto and other
financial or statistical information (or charts , tables or graphs representing
such information) included or incorporated by reference therein, as to which
such counsel need express no belief) as of the effective time of the
Registration Statement (the "Effective Time") contained any untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or (b) that,
(i) as of its date, the U.S. Prospectus, as amended or supplemented, (ii) as of
the date of its issue, any amendment or supplement to the U.S. Prospectus and
(iii) at such Time of Delivery, the U.S. Prospectus, as amended or supplemented
25
as of such date, included or includes any untrue statement of a material fact or
omitted or omits to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (other than the financial statements and related schedules and notes
thereto and other financial or statistical information (or charts , tables or
graphs representing such information) included or incorporated by reference
therein, as to which such counsel need express no belief).
(d) The Company shall have requested and caused their counsel in
Romania, the Czech Republic and the Netherlands to have furnished their
opinions, dated such Time of Delivery, and addressed to the Underwriters,
substantially in the respective forms set out in Schedule V.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company and public officials.
(e) Each Selling Shareholder shall have requested and caused its
counsel to have furnished to the Underwriters their opinions, dated such Time of
Delivery and addressed to the Underwriters, in substantially the form set out in
Schedule VI.
(f) The Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Canadian
counsel for the Underwriters, such opinion or opinions and a 10b-5 letter, dated
such Time of Delivery and addressed to the Underwriters, with respect to the
sale of the Shares, the Canadian Prospectus (together with any supplement
thereto) and other related matters the Underwriters may reasonably require and
the Company shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received the opinion of Cravath,
Swaine & ▇▇▇▇▇ LLP, U.S. counsel for the Underwriters, such opinion or opinions
and a 10b-5 letter, dated such Time of Delivery and addressed to the
Underwriters, with respect to the sale of the Shares, the Registration Statement
and the U.S. Prospectus (together with any supplement thereto) and other related
matters as the Underwriters may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(h) The Company shall have furnished to the Underwriters a certificate
of the Company, signed by the President and Chief Executive Officer and the Vice
President and Chief Financial Officer of the Company, dated such Time of
Delivery, to the effect that:
(i) the signers of such certificate have carefully examined the
Canadian Prospectus, the Registration Statement and U.S. Prospectus, any
amendments thereto and this Agreement;
(ii) the representations and warranties of the Company in this
Agreement are true and correct on and as of such Time of Delivery with the
same effect as if made at such Time of Delivery and the Company has
complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to such Time of Delivery;
26
(iii) no order having the effect of ceasing or suspending the
distribution of the Shares or the trading in the Common Shares or any other
securities of the Company shall have been issued or proceedings therefor
initiated or threatened by any securities commission, securities regulatory
authority or stock exchange in Canada or the United States, no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued under the Securities Act and no proceeding
for that purpose shall have been initiated or threatened by the Commission;
and
(iv) since the date of the most recent financial statements included
or incorporated by reference in the Canadian Prospectus and the U.S.
Prospectus, there has been no material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Canadian Prospectus and the U.S. Prospectus.
(i) Each Selling Shareholder shall have furnished to the Company and
the Underwriters a certificate of such Selling Shareholder, dated such Time of
Delivery, to the effect that the representations and warranties of such Selling
Shareholder in this Agreement are true and correct on and as of such Time of
Delivery with the same effect as if made at such Time of Delivery and such
Selling Shareholder has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to such Time of
Delivery.
(j) The Company shall have requested and caused Ernst & Young LLP,
independent auditors of the Company, to have furnished to the Underwriters, at
the Effective Time and on such Time of Delivery, letters, dated respectively as
of the Effective Time and such Time of Delivery, in form and substance
satisfactory to the Underwriters and their counsel, together with signed or
reproduced copies of such letter containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters in
securities offerings in Canada and the United States with respect to the
financial statements and certain financial information included or incorporated
by reference in the Canadian Final Prospectus, the Registration Statement, and
the U.S. Final Prospectus.
(k) The Underwriters shall have received on such Time of Delivery an
opinion of Ernst & Young LLP, dated as of such Time of Delivery, to the effect
that the French language versions of (i) the following sections of the Canadian
Prospectus, namely "Selected Consolidated Financial Information", "Consolidated
Capitalization" and "Auditor's Consent", (ii) the following sections of the
Company's 20-F dated May 20, 2003, namely "Selected Financial Data" in Item 3 -
Key Information, Item 5 - "Operating and Financial Review and Prospects", the
"Expected Maturities" table in Item 11 - Quantitative and Qualitative Disclosure
about Market Risk, Item 18 - "Financial Statements", Schedule 1 - "Condensed
Financial Information of Registrant" and Schedule II - "Valuation and Qualifying
Accounts", (iii) the Operating and Financial Review and Prospects of the Company
as at December 31 , 2003 and 2002 and for each of the years in the three-year
period ended December 31 2003, which is reproduced as Annex A to the Prospectus
and (iv) the audited comparative annual Consolidated Financial Statements of the
Company, including the Notes thereto, as at December 31 2003 and 2002 and for
each of the years in the three-year period ended December 31 , 2003, together
with the auditors ' report thereon, which are reproduced as Annex B to the
Prospectus, are in all material respects a complete and proper translation of
the English language versions thereof and, (i) the financial statements of the
Company.
27
(l) Prior to such Time of Delivery, the Company shall have furnished
to the Representatives such further information, certificates and documents as
the Underwriters may reasonably request.
(m) The Company shall have furnished to the Underwriters on or prior
to such Time of Delivery satisfactory evidence of its due and valid
authorization of CT Corporation System as its agent to receive service of
process to Section 15 hereof, and satisfactory evidence from CT Corporation
System accepting its appointment as such agent.
(n) The Common Shares and the Shares shall be listed and admitted and
authorized for trading on the TSX and Nasdaq, subject only to confirmation of
issuance, and satisfactory evidence of such actions shall have been provided to
the Underwriters.
(o) The Underwriters shall have received, as of the Effective Time, an
opinion from the Corporate Financing Department of the NASD stating that such
department has no objections to the proposed underwriting and other terms and
arrangements as proposed in this Agreement and the U.S. Prospectus.
(p) The Company shall have made arrangements, satisfactory to the
Representatives, to purchase, concurrently with or shortly after the purchase of
the Shares at the First Time of Delivery, the shares of ClearWave N.V. referred
to in Section 1(i) hereof.
If the Company or any Selling Shareholder does not comply in all
material respects with the conditions hereof, the Representatives may terminate
the obligations of the Underwriters hereunder by written notice to that effect
given to the Company on or prior to the First Time of Delivery and in such event
each Underwriter's obligations shall be at an end. It is understood that the
Representatives may waive in whole or in part non-compliance with any of the
conditions contained herein or extend the time for compliance therewith without
prejudice to such rights in respect of any other condition or conditions or any
other or subsequent breach or non-compliance, provided that any such waiver or
extension shall be binding upon the Underwriters only if the same is in writing.
The documents required to be delivered by this Section 9 shall be
delivered at the office of Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Stock Exchange Tower, ▇.▇.
▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ at
the relevant Time of Delivery.
10. Reimbursement of Underwriters' Expenses. If the sale of the Shares
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 9 hereof is not satisfied, because of
any termination pursuant to Section 13 hereof or because of any refusal,
inability or failure on the part of the Company or any Selling Shareholder to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters through the Representatives on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel to the
Underwriters) that shall have been incurred by them in connection with the
proposed sale of the Shares.
28
11. Indemnification and Contribution
(a) The Company agrees (i) to indemnify and hold harmless each Selling
Shareholder and each Underwriter and their respective directors, officers,
employees, agents and affiliates and each person who controls any Underwriter or
any Selling Shareholder within the meaning of either the Securities Act or the
Exchange Act against any and all losses, claims, damages or liabilities to which
they or any of them may become subject under the Canadian Securities Laws, the
Securities Act, the Exchange Act, or other Canadian federal or provincial,
United States federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (A) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Shares, as originally filed or in any
amendment thereof, or in the Canadian Preliminary Prospectus, the U.S.
Preliminary Prospectus, the Canadian Prospectus or the U.S. Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or (B)
any misrepresentation or alleged misrepresentation contained in the Canadian
Preliminary Prospectus or the Canadian Prospectus and (ii) to reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with information furnished in writing to the Company by or on
behalf of an Underwriter through the Representatives expressly for use therein,
or with information furnished in writing to the Company by any Selling
Shareholder expressly for use therein; provided further, that with respect to
any untrue statement or omission of material fact made in the Canadian
Preliminary Prospectus or the U.S. Preliminary Prospectus, the indemnity
agreement contained in this Section 11(a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such loss, claim, damage or
liability purchased the securities concerned, to the extent that any such loss,
claim, damage or liability of such Underwriter occurs under the circumstance
where it shall have been determined by a court of competent jurisdiction by
final and nonappealable judgment that (w) the Company had previously furnished
copies of the Canadian Supplemental PREP Prospectus and the U.S. Supplemental
PREP Prospectus to the Underwriters, (x) delivery of the Canadian Supplemental
PREP Prospectus and the U.S. Supplemental PREP Prospectus was required by
Canadian Securities Laws or the Securities Act, as applicable, to be made to
such person, (y) the untrue statement or omission of any material fact contained
in the Canadian Preliminary Prospectus or the U.S. Preliminary Prospectus was
corrected in the Canadian Supplemental PREP Prospectus and the U.S. Supplemental
PREP Prospectus and (z) there was not sent or given to such person, at or prior
to the written confirmation of the sale of such securities to such person, a
copy of the Canadian Supplemental PREP Prospectus or the U.S. Supplemental PREP
Prospectus. This indemnity agreement is in addition to any liability which the
Company may otherwise have, including for breach of representations, warranties,
covenants or obligations to be complied with under this Agreement.
(b) Each Selling Shareholder, jointly (conjointement) and not
solidarily, agrees (i) to indemnify and hold harmless the Company and each
Underwriter and their respective directors, officers, employees, agents and
affiliates and each person who controls the Company
29
or any Underwriter within the meaning of either the Securities Act or the
Exchange Act, against any and all losses, claims, damages or liabilities to
which they or any of them may become subject under the Canadian Securities Laws,
the Securities Act, the Exchange Act, or other Canadian federal or provincial,
United States federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (A) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Shares, as originally filed or in any
amendment thereof, or in the Canadian Preliminary Prospectus, the U.S.
Preliminary Prospectus, the Canadian Prospectus or the U.S. Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or (B)
any misrepresentation or alleged misrepresentation contained in the Canadian
Preliminary Prospectus or the Canadian Prospectus and (ii) to reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that such Selling
Shareholder will only be liable to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with information furnished in writing to the Company by such
Selling Shareholder specifically for inclusion therein; provided further, that
with respect to any untrue statement or omission of material fact made in the
Canadian Preliminary Prospectus or the U.S. Preliminary Prospectus, the
indemnity agreement contained in this Section 11(b) shall not inure to the
benefit of any Underwriter from whom the person asserting any such loss, claim,
damage or liability purchased the securities concerned, to the extent that any
such loss, claim, damage or liability of such Underwriter occurs under the
circumstance where it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment that (w) the Company had
previously furnished copies of the Canadian Supplemental PREP Prospectus and the
U.S. Supplemental PREP Prospectus to the Underwriters, (x) delivery of the
Canadian Supplemental PREP Prospectus and the U.S. Supplemental PREP Prospectus
was required by Canadian Securities Laws or the Securities Act, as applicable,
to be made to such person, (y) the untrue statement or omission of any material
fact contained in the Canadian Preliminary Prospectus or the U.S. Preliminary
Prospectus was corrected in the Canadian Supplemental PREP Prospectus and the
U.S. Supplemental PREP Prospectus and (z) there was not sent or given to such
person, at or prior to the written confirmation of the sale of such securities
to such person, a copy of the Canadian Supplemental PREP Prospectus or the U.S.
Supplemental PREP Prospectus. The Company and the Underwriters acknowledge that
Telesystem Ltd. has provided the information under the heading "Recent
Developments - The CDPQ and Telesystem Transaction" contained in the Canadian
Preliminary Prospectus, the U.S. Preliminary Prospectus, Canadian Final
Prospectus and U.S. Final Prospectus expressly for use therein, and each of
Telesystem Ltd., JPMP TIW EH, LP, ▇.▇. ▇▇▇▇▇▇ Partners (BHCA), L.P., AOF
Investment N.V., CAIP Investment N.V., CEA Investment N.V. and U.F. Investments
(Barbados) Ltd. has provided the information relating to it in the footnotes to
the table under the heading "Selling Shareholders" contained in the Canadian
Preliminary Prospectus, the U.S. Preliminary Prospectus, Canadian Final
Prospectus and U.S. Final Prospectus expressly for use therein, and such
information constitutes the only information furnished in writing by such
Selling Shareholders for inclusion therein. This indemnity agreement is in
addition to any liability which a Selling Shareholder may otherwise have,
including for breach of representations, warranties, covenants or obligations to
be complied with under this Agreement.
30
(c) Each Underwriter, jointly (conjointement) and not solidarily,
agrees (i) to indemnify and hold harmless the Company and each Selling
Shareholder and their respective directors, officers, employees, agents and
affiliates and each person who controls the Company or any Selling Shareholder
within the meaning of either the Securities Act or the Exchange Act, against any
and all losses, claims, damages or liabilities to which they or any of them may
become subject under the Canadian Securities Laws, the Securities Act, the
Exchange Act, or other Canadian federal or provincial, United States federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (A) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of
the Shares, as originally filed or in any amendment thereof, or in the Canadian
Preliminary Prospectus, the U.S. Preliminary Prospectus, the Canadian Prospectus
or the U.S. Prospectus, or in any amendment thereof or supplement thereto or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading or (B) any misrepresentation or alleged
misrepresentation contained in the Canadian Preliminary Prospectus or the
Canadian Prospectus and (ii) to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that such Underwriter will only be
liable to the extent that any such loss, claim, damage or liability arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with information furnished in writing to the Company by such Underwriter through
the representatives specifically for inclusion therein. The Company and the
Selling Shareholders acknowledge that the seventh, eighth and ninth paragraphs
and the first sentence of the tenth paragraph under "Plan of Distribution" in
the Canadian Preliminary Prospectus, the U.S. Preliminary Prospectus, the
Canadian Final Prospectus and the U.S. Final Prospectus constitute the only
information furnished in writing on behalf of the Underwriters for inclusion in
the Canadian Preliminary Prospectus, the U.S. Preliminary Prospectus, the
Canadian Prospectus and the U.S. Prospectus. This indemnity agreement is in
addition to any liability which an Underwriter may otherwise have, including for
breach of representations, warranties, covenants or obligations to be complied
with under this Agreement.
(d) Promptly after receipt by an indemnified party under this Section
11 of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 11, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a), (b) or (c) above unless and to
the extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided in
paragraph (a), (b) or (c) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party
31
shall bear the reasonable fees, costs and expenses of such separate counsel if
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii)
the actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. It is
understood, however, that the Company shall, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of only one separate firm of attorneys (in
addition to any local counsel) at any time for all such Underwriters and
controlling persons, which firm shall be designated in writing by the
Representatives and only one separate firm of attorneys (in addition to any
local counsel) at any time for each such Selling Shareholder and controlling
persons, which firm shall be designated in writing by each such Selling
Shareholder. An indemnifying party will not, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(e) In the event that the indemnity provided in this Section 11 is
unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Company, the Selling Shareholders and the Underwriters, jointly
(conjointement) and not solidarily, agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which the Company, one or more of the Selling Shareholders and one
or more of the Underwriters may be subject in such proportion as is appropriate
to reflect, as between the Company, the Selling Shareholders and the
Underwriters, the relative benefits received by the Company, the Selling
Shareholders and the Underwriters from the offering of the Shares; provided,
however, that in no case shall any Underwriter (except as may be provided in any
agreement among Underwriters relating to the offering of the Shares) be
responsible for any amount in excess of the Underwriters' Fee applicable to the
Shares purchased by such Underwriter hereunder. If the allocation provided for
in the immediately preceding sentence is unavailable for any reason, the
Company, the Selling Shareholders and the Underwriters, jointly (conjointement)
and not solidarily, shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company, any Selling Shareholder and the Underwriters in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company and each
Selling Shareholder shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by it, and benefits received
by the Underwriters shall be deemed to be equal to the total Underwriters' Fee,
in each case as set forth on the cover page of the Canadian Prospectus and the
U.S. Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue
32
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company, the Selling
Shareholders or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company, the Selling Shareholders and the
Underwriters agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (e), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) or misrepresentation under Canadian Securities Laws shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation or misrepresentation. For purposes of this Section 11, each
person who controls an Underwriter within the meaning of either the Securities
Act or the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, each
person who controls a Selling Shareholder within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee and
agent of a Selling Shareholder shall have the same rights to contribution as
such Selling Shareholder and each person who controls the Company within the
meaning of either the Securities Act or the Exchange Act, and each director,
officer, employee and agent of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (e).
(f) Notwithstanding any other provision of this Agreement, each
Selling Shareholder shall only be liable under paragraph 11(b) or paragraph
11(e) for an aggregate amount up to but not exceeding the value of the gross
proceeds received by it, net of the Underwriting Fee paid by it, for the sale of
its Firm Shares (and any Optional Shares sold by it).
12. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Firm Shares agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated jointly (conjointement)
and not solidarily to take up and pay for (in the respective proportions which
the amount of Firm Shares set forth opposite their names in Schedules I and II
hereto bears to the aggregate amount of Firm Shares set forth opposite the names
of all the remaining Underwriters) the Firm Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Firm Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Firm Shares set forth in Schedules I and II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Firm Shares, and if such
non-defaulting Underwriters do not purchase all the Firm Shares, this Agreement
will terminate without liability to any non-defaulting Underwriter, the Company
or any Selling Shareholder. In the event of a default by any Underwriter as set
forth in this Section 12, the First Time of Delivery shall be postponed for such
period, not exceeding five Business Days, as the Representatives shall determine
in order that the required changes in the Registration Statement, the Canadian
Prospectus or the U.S. Prospectus, or in any other documents or arrangements may
be effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company, any Selling Shareholder
and any non-defaulting Underwriter for damages occasioned by its default
hereunder.
33
13. Termination.
(a) This Agreement shall be subject to termination by the
Representatives in their absolute discretion, by notice given to the Company at
any time prior to the First Time of Delivery in accordance with Section 17, if,
at any time prior to the First Time of Delivery:
(i) any enquiry, action, suit, investigation or other proceeding
whether formal or informal is instituted, threatened or announced or
any order is made by any federal, provincial or other governmental
authority in relation to the Company or any Selling Shareholder,
which, in the reasonable opinion of the Representatives or any one of
them, operates to prevent or restrict the distribution or trading of
the Shares;
(ii) there shall occur any material adverse change in the
business, affairs, operations, assets, liabilities (contingent or
otherwise), capital or control of the Company and its subsidiaries,
taken as whole, or the Underwriters become aware of any undisclosed
material adverse information relating to the Company and its
subsidiaries, taken as a whole, or other adverse material development
which, in the opinion of the Representatives or any one of them,
acting reasonably, would have a material adverse effect on the market
price or value of the Shares;
(iii) (A) trading in any of the Company's common shares shall
have been suspended by the Commission, the Reviewing Authority, any
Qualifying Authority, the TSX or Nasdaq or trading in securities
generally on the TSX, the New York Stock Exchange or Nasdaq shall have
been suspended or limited or minimum prices shall have been
established on any such Exchanges, (B) a banking moratorium shall have
been declared either by Canadian federal, U.S. federal or New York
State authorities, (C) a change or development involving a prospective
material adverse change in Canadian taxation affecting the Shares or
the transfer thereof or the imposition of exchange controls by Canada
or the United States, (D) there should develop, occur or come into
effect or existence any event, action, state, condition or major
financial occurrence of national or international consequence or any
law or regulation which in the opinion of the Representatives or any
one of them seriously adversely affects, involves, or will seriously
adversely affect, or involve, the financial markets or the business,
operations or affairs of the Company and its subsidiaries taken as a
whole;
(iv) If after the date hereof and prior to the First Time of
Delivery, the state of the financial markets in Canada or the United
States is such that, in the reasonable opinion of the Representatives
or any one of them, the Shares cannot be marketed profitably.
(b) The Company and each Selling Shareholder agrees that all
terms and conditions of this Agreement shall be construed as conditions and
complied with so far as they relate to acts to be performed or caused to be
performed by them, that they will use their best efforts to cause such
conditions to be complied with, and that any breach or failure by the Company or
any Selling Shareholder to comply with any such conditions shall entitle any of
the Underwriters to terminate their obligations to purchase the Shares by notice
to that effect given to the Company at or prior to the First Time of Delivery,
unless otherwise expressly provided in this Agreement. The Underwriters may
waive, in whole or in part, or extend the time for compliance with, any terms
and conditions without prejudice to their rights in respect of any
34
other of such terms and conditions or any other or subsequent breach or
non-compliance, provided that any such waiver or extension shall be binding upon
the Underwriters only if such waiver or extension is in writing and signed by
the Representatives.
(c) The rights of termination contained in Sections 13(a) and
13(b) may be exercised by any of the Representatives and are in addition to any
other rights or remedies any of the Underwriters may have in respect of any
default, act or failure to act or non-compliance by the Company or any Selling
Shareholder in respect of any of the matters contemplated by this Agreement or
otherwise. In the event of any such termination, there shall be no further
liability on the part of the Underwriters to the Company or any Selling
Shareholder, on the part of the Company to the Underwriters or any Selling
Shareholder, and on the part of any Selling Shareholder to the Company or the
Underwriters except in respect of any liability which may have arisen or may
arise after such termination under sections 10 and 11. A notice of termination
given by an Underwriter under Sections 13(a) and 13(b) shall not be binding upon
any other Underwriter.
14. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, of the Selling Shareholders and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any party or any
of the officers, directors, employees, agents or controlling persons referred to
in Section 11 hereof, and will survive delivery of and payment for the Shares.
The provisions of Sections 10, 11, 14, 15, 16, 17, 18, 19 and 20 hereof shall
survive the termination or cancellation of this Agreement.
15. Agent for Service. The Company has appointed CT Corporation
System, New York, New York, as its authorized agent (the "Authorized Agent")
upon whom process may be served in any action arising out of or based on this
Agreement or the transactions contemplated hereby which may be instituted in any
state or federal court located in the Borough of Manhattan, The City of New
York, New York (each a "New York Court"), and expressly consents to the
non-exclusive jurisdiction of any New York Court in respect of any such action,
and waives any other requirements of or objections to personal jurisdiction with
respect thereto. Such appointment is irrevocable. The Company represents and
warrants that the Authorized Agent has agreed to act as such agent for service
of process and agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of such service to the Company shall be
deemed, in every respect, effective service of process upon the Company.
16. Authority of Representatives. The Representatives are hereby
authorized by each of the other Underwriters to act on its behalf and the
Company and the Selling Shareholders shall be entitled to and shall act on any
notice given in accordance with Sections 17 or any agreement entered into by or
on behalf of the Underwriters by the Representatives. Each of the
Representatives represents and warrants that it has irrevocable authority to
bind the Underwriters, except in respect of any consent to a settlement pursuant
to Section 11(d) which consent shall be given by the Indemnified Party. The
Representatives shall consult with the other Underwriters concerning any matter
in respect of which they act as representatives of the Underwriters.
35
17. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telefaxed to BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Attention Mathieu L. L'Allier (fax no.:
(▇▇▇) ▇▇▇-▇▇▇▇) and to ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention Syndicate Desk (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇); if sent
to the Company, will be mailed, delivered or telefaxed to Telesystem
International Wireless Inc., ▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇. West, 38th Floor,
Montreal, Quebec, H3B 4W8, Attention General Counsel and Secretary (fax no.:
(▇▇▇) ▇▇▇-▇▇▇▇); if sent to UFI Investments (Barbados) Ltd., to it at: U.F.
Investments (Barbados) Ltd., The Ernst & Young Building, ▇▇▇▇ ▇▇▇▇ Bay Street,
Bridgetown, Barbados, Attention: The Managing Director, Telephone: (246)
▇▇▇-▇▇▇▇, Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to: ▇▇▇▇▇▇▇▇▇ Whampoa Limited,
22nd ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇: Company
Secretary, Telephone: (▇▇▇▇) ▇▇▇▇-▇▇▇▇, Telecopier: (▇▇▇▇) ▇▇▇▇-▇▇▇▇; if sent to
JPMP TIW EH, LP, ▇.▇. ▇▇▇▇▇▇ Partners (BHCA), L.P., AOF Investment N.V., CIAP
Investment N.V. or CEA Investment N.V., to it at: c/o ▇▇ ▇▇▇▇▇▇ Partners, LLC,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Official Notices
Clerk (FBO: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇), Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Telecopier: (212)
899-3401, with a copy to: O'Melveny & ▇▇▇▇▇ LLP, Times Square Tower, ▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇, Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇; if to EEIF Melville B.V., c/o
Amicorp, Professor ▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Attention
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Tel: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, Fax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, with a copy to
Emerging Markets Partnership (Europe) Limited ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇, United Kingdom, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Tel: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇, Fax: +44 20
▇▇▇▇ ▇▇▇▇; if to EEIF Czech N.V., c/o Citco Trust Curacao, De ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Antilles, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Tel: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
Fax: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, with a copy to Emerging Markets Partnership (Europe)
Limited ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, United Kingdom, Attention: ▇▇▇▇▇
▇▇▇▇▇▇, Tel: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇, Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇; if to Emerging Europe
Infrastructure Fund C.V. c/o American International Company Limited, P.O. Box HM
152, ▇▇▇▇▇▇▇▇ ▇▇ HX ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: L.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇, Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇, Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇, with a
copy to Emerging Markets Partnership (Europe) Limited ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇, United Kingdom, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Tel: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇, Fax:
▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇; if to Telesystem Ltd. or ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ Inc., to it at c/o
the Chief Financial Officer, 1250 ▇▇▇▇ ▇▇▇▇▇▇▇▇ Blvd. West, Suite 3800,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Tel.: (▇▇▇) ▇▇▇-▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇ with a copy
to ▇▇▇▇▇▇ Blaikie LLP, 1250 ▇▇▇▇-▇▇▇▇▇▇▇▇ Blvd West, Suite 2500, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Attention ▇▇▇▇ ▇. ▇▇▇▇ Tel.: (▇▇▇)▇▇▇-▇▇▇▇,
Fax: (▇▇▇) ▇▇▇-▇▇▇▇.
18. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 11 hereof, and no other person will have any right or obligation
hereunder.
19. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the Province of Quebec and the federal
laws applicable therein applicable to contracts made and to be performed within
the Province of Quebec. THE PARTIES HEREBY ACKNOWLEDGE THAT IT IS THEIR EXPRESS
WISH THAT THIS AGREEMENT BE DRAWN IN THE ENGLISH LANGUAGE ONLY; LES PARTIES
RECONNAISSENT QU'IL EST DE LEUR VOLONTE EXPRESSE QUE LA PRESENTE ENTENTE SOIT
REDIGEE EN LANGUE ANGLAISE SEULEMENT.
36
20. Each of the parties hereto expressly and irrevocably consents
to the non-exclusive jurisdiction of the courts of the Province of Quebec in
respect of any action arising out of or based on this Agreement or the
transactions contemplated hereby, and waives any objection to the laying of
venue or personal jurisdiction with respect thereto.
21. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
22. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Selling Shareholders and the Underwriters.
Very truly yours,
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ INC.
By: ______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: ______________________________
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: managing Director
LAZARD FRERES & CO. LLC
By: ______________________________
Name:
Title:
UBS SECURITIES CANADA INC.
By: ______________________________
Name:
Title:
TD SECURITIES INC.
By: ______________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
TELESYSTEM INTERNATIONAL WIRELESS INC.
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
U.F. INVESTMENTS (BARBADOS) LTD.
By: ______________________________
Name:
Title:
JPMP TIW EH, LP
By: JPMP TIW EH GP, LLC
its General Partner
By: ▇.▇. ▇▇▇▇▇▇ Partners (BHCA), L.P.
its Sole Member
By: JPMP Master Fund Manager, L.P.,
its General Partner
By: JPMP Capital Corp.,
its General Partner
By: ______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
▇.▇. ▇▇▇▇▇▇ PARTNERS (BHCA), L.P.
By: JPMP Master Fund Manager, L.P.,
its General Partner
By: JPMP Capital Corp.,
its General Partner
By: ______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
AOF INVESTMENT N.V.
By: ______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
CAIP INVESTMENT N.V.
By: ______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
CEA INVESTMENT N.V.
By: ______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
EEIF MELVILLE B.V.
By: ______________________________
Name:
Title:
EEIF CZECH N.V.
By: ______________________________
Name:
Title:
EMERGING EUROPE INFRASTRUCTURE FUND C.V.
By: AIG Emerging Europe Infrastructure Management L.P.,
its general partner
By: AIG Emerging Europe Infrastructure Management Ltd.,
its general partner
By: ______________________________
Name:
Title:
TELESYSTEM LTD.
By: ______________________________
Name:
Title:
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ INC.
By: ______________________________
Name:
Title:
SCHEDULE I
UNDERWRITERS NUMBER OF FIRM
SHARES TO BE
PURCHASED FROM THE COMPANY
--------------------------------------------------------------------------------
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc.
--------------------------------------------------------------------------------
▇.▇. ▇▇▇▇▇▇ Securities Inc.
--------------------------------------------------------------------------------
Lazard Freres & Co. LLC
--------------------------------------------------------------------------------
UBS Securities Canada Inc.
--------------------------------------------------------------------------------
TD Securities Inc.
--------------------------------------------------------------------------------
TOTAL ............................
--------------------------------------------------------------------------------
NUMBER OF OPTIONAL SHARES (IF MAXIMUM OPTION EXERCISED) TO BE PURCHASED FROM THE
COMPANY BY THE UNDERWRITERS:
SCHEDULE II
---------------------------------- --------------------------------------------------------------------------------
UNDERWRITERS NUMBER OF FIRM SHARES TO BE PURCHASED FROM:
---------------------------------- --------------------------------------------------------------------------------
Telesystem Ltd. ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ Inc. U.F. Investments
(Barbados) Ltd.
---------------------------------- ------------------------- ------------------------- --------------------------
---------------------------------- ------------------------- ------------------------- --------------------------
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. ......
---------------------------------- ------------------------- ------------------------- --------------------------
---------------------------------- ------------------------- ------------------------- --------------------------
▇.▇. ▇▇▇▇▇▇ Securities Inc ..
---------------------------------- ------------------------- ------------------------- --------------------------
---------------------------------- ------------------------- ------------------------- --------------------------
Lazard Freres & Co. LLC .....
---------------------------------- ------------------------- ------------------------- --------------------------
---------------------------------- ------------------------- ------------------------- --------------------------
UBS Securities Canada Inc ...
---------------------------------- ------------------------- ------------------------- --------------------------
---------------------------------- ------------------------- ------------------------- --------------------------
TD Securities Inc. ..........
---------------------------------- ------------------------- ------------------------- --------------------------
---------------------------------- ------------------------- ------------------------- --------------------------
---------------------------------- ------------------------- ------------------------- --------------------------
---------------------------------- ------------------------- ------------------------- --------------------------
TOTAL .............
---------------------------------- ------------------------- ------------------------- --------------------------
SCHEDULE II
------------------------------------------------------------------------------------------------------------------------------------
UNDERWRITERS NUMBER OF FIRM SHARES TO BE PURCHASED FROM:
------------------------------------------------------------------------------------------------------------------------------------
JPMP TIW EH, LP AOF Investment N.V. CAIP Investment N.V. CEA Investment N.V.
-------------------------------------- ----------------- ------------------- -------------------------- --------------------------
-------------------------------------- ----------------- ------------------- -------------------------- --------------------------
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. ......
-------------------------------------- ----------------- ------------------- -------------------------- --------------------------
-------------------------------------- ----------------- ------------------- -------------------------- --------------------------
▇.▇. ▇▇▇▇▇▇ Securities Inc ..
-------------------------------------- ----------------- ------------------- -------------------------- --------------------------
-------------------------------------- ----------------- ------------------- -------------------------- --------------------------
Lazard Freres & Co. LLC .....
-------------------------------------- ----------------- ------------------- -------------------------- --------------------------
-------------------------------------- ----------------- ------------------- -------------------------- --------------------------
UBS Securities Canada Inc ...
-------------------------------------- ----------------- ------------------- -------------------------- --------------------------
-------------------------------------- ----------------- ------------------- -------------------------- --------------------------
TD Securities Inc. ..........
-------------------------------------- ----------------- ------------------- -------------------------- --------------------------
-------------------------------------- ----------------- ------------------- -------------------------- --------------------------
-------------------------------------- ----------------- ------------------- -------------------------- --------------------------
-------------------------------------- ----------------- ------------------- -------------------------- --------------------------
TOTAL .............
-------------------------------------- ----------------- ------------------- -------------------------- --------------------------
--------------------------------------------------------------------------------------------------------------------------------
UNDERWRITERS NUMBER OF FIRM SHARES TO BE PURCHASED FROM:
----------------------------------------- -------------------------------------------------------------------------------------
▇.▇. ▇▇▇▇▇▇ Partners EEIF Melville B.V. EEIF Czech N.V. Emerging Europe
(BHCA), L.P. Infrastructure Fund C.V.
----------------------------------------- -------------------- ------------------ ---------------- -------------------------
----------------------------------------- -------------------- ------------------ ---------------- -------------------------
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. ......
----------------------------------------- -------------------- ------------------ ---------------- -------------------------
----------------------------------------- -------------------- ------------------ ---------------- -------------------------
▇.▇. ▇▇▇▇▇▇ Securities Inc ..
----------------------------------------- -------------------- ------------------ ---------------- -------------------------
----------------------------------------- -------------------- ------------------ ---------------- -------------------------
Lazard Freres & Co. LLC .....
----------------------------------------- -------------------- ------------------ ---------------- -------------------------
----------------------------------------- -------------------- ------------------ ---------------- -------------------------
UBS Securities Canada Inc ...
----------------------------------------- -------------------- ------------------ ---------------- -------------------------
----------------------------------------- -------------------- ------------------ ---------------- -------------------------
TD Securities Inc. ..........
----------------------------------------- -------------------- ------------------ ---------------- -------------------------
----------------------------------------- -------------------- ------------------ ---------------- -------------------------
----------------------------------------- -------------------- ------------------ ---------------- -------------------------
TOTAL ....................
----------------------------------------- ------------------------- ------------------------- -------------------------------
2
-------------------------------------------- -----------------------------------
SELLING SHAREHOLDER NUMBER OF OPTIONAL SHARES TO
BE PURCHASED BY ONE OR MORE
UNDERWRITERS (IF MAXIMUM
OPTION EXERCISED):
-------------------------------------------- -----------------------------------
-------------------------------------------- -----------------------------------
-------------------------------------------- -----------------------------------
-------------------------------------------- -----------------------------------
Telesystem Ltd.
-------------------------------------------- -----------------------------------
-------------------------------------------- -----------------------------------
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ Inc.
-------------------------------------------- -----------------------------------
-------------------------------------------- -----------------------------------
U.F. Investments (Barbados) Ltd.
-------------------------------------------- -----------------------------------
-------------------------------------------- -----------------------------------
JPMP TIW EH, LP
-------------------------------------------- -----------------------------------
-------------------------------------------- -----------------------------------
▇.▇. ▇▇▇▇▇▇ Partners (BHCA), L.P.
-------------------------------------------- -----------------------------------
-------------------------------------------- -----------------------------------
AOF Investment N.V.
-------------------------------------------- -----------------------------------
-------------------------------------------- -----------------------------------
CAIP Investment N.V.
-------------------------------------------- -----------------------------------
-------------------------------------------- -----------------------------------
CEA Investment N.V.
-------------------------------------------- -----------------------------------
-------------------------------------------- -----------------------------------
EEIF Melville B.V.
-------------------------------------------- -----------------------------------
-------------------------------------------- -----------------------------------
EEIF Czech N.V.
-------------------------------------------- -----------------------------------
-------------------------------------------- -----------------------------------
Emerging Europe Infrastructure Fund C.V.
-------------------------------------------- -----------------------------------
-------------------------------------------- -----------------------------------
-------------------------------------------- -----------------------------------
-------------------------------------------- -----------------------------------
TOTAL .......................
-------------------------------------------- -----------------------------------
SCHEDULE III
QUEBEC COUNSEL OPINIONS
On the basis of the foregoing and subject to the qualifications hereinafter
expressed, we are of the opinion that:
(a) the Company has been duly incorporated and is validly
existing under the Canada Business Corporations Act, is registered under An Act
respecting the legal publicity of sole proprietorships, partnerships and legal
persons (Quebec), is not in default of giving an Annual Declaration under such
Act, is not in default of conforming to a request made under Section 38 of such
Act as of [ ] and is not in process of being dissolved as of [ ];
(b) the Company has ail the requisite corporate power to own or
lease its property and assets and to conduct its business as described in the
Prospectus and to perform its obligations under the Agreement;
(c) the Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding obligation
of the Company enforceable against it in accordance with its terms;
(d) the execution and delivery by the Company of the Agreement
and the compliance by the Company with the provisions thereof and the
consummation of the transactions contemplated therein does not conflict with (i)
the constating documents and by-laws of the Company, (ii) the resolutions of the
directors and of shareholders of the Company, (iii) the amended and restated
investor rights agreement dated January 24, 2002, as further amended on
September 25, 2003 and March 17, 2004, among the Company, Telesystem Ltd,
Capital Communications CDPQ Inc., certain affiliates of ▇.▇. ▇▇▇▇▇▇ Partners,
LLC, U.F. Investments (Barbados) and certain affiliates of AIG Emerging Europe
Infrastructure Fund L.P., or the registration rights agreement dated December
14, 2001, as amended on March 17, 2004, among the Company, Telesystem Ltd,
Capital Communications CDPQ Inc., certain affiliates of ▇.▇. ▇▇▇▇▇▇ Partners,
LLC, U.F. Investments (Barbados) and certain affiliates of AIG Emerging Europe
Infrastructure Fund L.P. or (iv) to the extent that we would normally expect
them to apply to the Company or its subsidiaries in connection with transactions
of this nature, (A) any statute, law, rule or regulation or (B) any judgment,
order or decree of which we have knowledge, in the case of both clauses (A) and
(B), of Canada or of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority of Canada that we would
normally expect to have jurisdiction over the Company or its subsidiaries, or
any of its or their properties, in connection with transactions of this nature;
(e) the Company is a reporting issuer in each of the Qualifying
Jurisdictions and is not included in a list of defaulting reporting issuers
maintained pursuant to the applicable securities laws of each such jurisdiction
other than the provinces of New Brunswick and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Island, in respect
of which no provision is made in the applicable securities laws for the issuance
of an official certificate of no default;
(f) the Company's authorized share capital is as set forth under
the heading "Description of Share Capital" in the Prospectus. There are
currently [ ] Common Shares issued and outstanding;
(g) the Shares sold and delivered by the Company to the
Representatives have been duly authorized and validly issued and are outstanding
as fully paid and non-assessable;
(h) the statements included (i) in the Canadian Prospectus under
the headings "Eligibility for Investment" and "Purchaser Statutory Rights of
Withdrawal and Rescission", the statements regarding the Canadian income tax
consequences under the heading "Certain Canadian and U.S. Income Tax
Considerations - Canadian Federal Income Tax Considerations", and the statements
under "Description of Share Capital"; and (ii) in the Registration Statement
under "Indemnification" only insofar as such statements summarize legal matters,
are accurate and fair summaries of such legal matters;
(i) each of the Canadian Preliminary Base PREP Prospectus, the
Canadian Final Base PREP Prospectus and the Canadian Supplemental Prospectus, in
both the French and English language versions thereof, and the filing thereof
under the securities laws of all the Qualifying Jurisdictions, have been duly
approved by the board of directors of the Company and each of the Canadian
Preliminary Base PREP Prospectus, the Canadian Final Base PREP Prospectus and
the Canadian Supplemental Prospectus, in both the French and English language
versions thereof, has been duly executed pursuant to such approval in the name
of the Company by duly authorized directors and officers of the Company;
(j) each of the Canadian Preliminary Base PREP Prospectus, the
Canadian Final Base PREP Prospectus and the Canadian Supplemental Prospectus
(excluding the financial statements and other financial or statistical
information (or charts, tables or graphs representing such information) included
or incorporated by reference therein, as to which such counsel need express no
opinion) comply as to form with the applicable requirements of Canadian
Securities Laws;
(k) an MRRS Decision Document for each of the Canadian
Preliminary Base PREP Prospectus and the Canadian Final Base PREP Prospectus has
been obtained from the Reviewing Authority and the Reviewing Authority has not
revoked such MRRS Decision Document; all approvals, permits, exemptions,
consents, orders and authorizations have been obtained, and all documents have
been filed and proceedings taken under the securities laws of the Qualifying
Jurisdictions to qualify the Shares for sale to the public in each of the
Qualifying Jurisdictions and to permit the sale of the Shares to the public in
each such jurisdiction through investment dealers or brokers registered under
the applicable laws of each such jurisdiction who have complied with all
relevant provisions of such law;
(l) the Company is eligible to use a short form prospectus under
National Instrument 44-101 and the PREP Procedures under National Instrument
44-103;
(m) the Toronto Stock Exchange has conditionally approved the
listing of the Shares to be sold by the Company, subject to the Company
fulfilling all of the requirements of the Toronto Stock Exchange; and the Common
Shares are duly listed on the Toronto Stock Exchange;
(n) to our knowledge, no order having the effect of ceasing or
suspending the distribution or trading of the Common Shares has been issued by
the Reviewing Authority, the Qualifying Authorities or the Toronto Stock
Exchange;
(o) Computershare Trust Company of Canada, at its principal
offices in Montreal and Toronto, is the duly appointed transfer agent and
registrar for the Common Shares;
(p) the share certificates representing the Shares sold and
delivered by the Company to the Representatives have been duly approved and
executed by and on behalf of the Company and such certificates comply with all
legal requirements applicable thereto under the Canada Business Corporations Act
and the regulations of the Toronto Stock Exchange; and
(q) the laws of Quebec relating to the use of the French language
(other than those relating to verbal communications) will be complied with in
respect of the documents to be delivered to purchasers in Quebec in connection
with the sale of the Offered Shares to purchasers in Quebec if such purchasers
receive:
(i) copies of the French and English language versions of the
Canadian Preliminary Base PREP Prospectus, the Canadian Final Base
PREP Prospectus and the Canadian Supplemental Prospectus delivered at
the same time or copies of the French language version only or, in the
case of individuals so requesting in writing, copies of the English
language version only;
(ii) forms of confirmation in the French language or in bilingual
form; and
(iii) upon request, copies of the French and English language
versions of the permanent information record delivered at the same
time or copies of the French language version only or, in the case of
individuals so requesting in writing, copies of the English language
version only.
SCHEDULE IV
U.S. COUNSEL OPINIONS
On the basis of the foregoing and subject to the qualifications hereinafter
expressed, we are of the opinion that:
(a) Subject to the qualifications stated therein, the statements
set forth in the U.S. Prospectus and the Canadian Prospectus under the caption
"Certain Canadian and U.S. Income Tax Considerations - United States Federal
Income Tax Considerations", insofar as they constitute a summary of the legal
matters referred to therein, are accurate in all material respects;
(b) the Registration Statement has become effective under
the Act; the Form F-X was filed with the Commission prior to the effectiveness
of the Registration Statement; to our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or threatened; and, assuming that the
Canadian Prospectus complies as to form in all material respects and has been
prepared in accordance with the requirements of all applicable Canadian
Securities Laws, the Registration Statement and the U.S. Prospectus (other than
the financial statements and related schedules and notes thereto and other
financial and statistical information (or charts, tables or graphs representing
such information) included or incorporated by reference therein, as to which we
express no opinion) and the Form F-X, when the Registration Statement became
effective, complied as to form in all material respects with the applicable
requirements of the Act and the rules thereunder; and we do not know of any
amendment to the Registration Statement required to be filed or of any contracts
or other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into the U.S.
Prospectus as amended or supplemented or required to be described in the
Registration Statement or the U.S. Prospectus as amended or supplemented which
are not filed or incorporated by reference or described as required.
(c) no consent, approval, authorization, filing with or order of
any court or governmental agency or body or any arbitrator of the State of New
York or the United States is required in connection with the authorization,
execution and delivery by the Company of the Agreement and the performance by
the Company of its obligations thereunder, or for the offering, issuance, sale
or delivery of the Shares, except such as have been obtained under the Act or
such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Shares by the Underwriters
in the manner contemplated in the Agreement and in the U.S. Prospectus;
(d) Under the laws of the State of New York relating to personal
jurisdiction, the Company has, pursuant to Section 15 of the Agreement, validly
and irrevocably submitted to the non-exclusive personal jurisdiction of any
state or federal court located in the Borough of Manhattan, The City of New
York, New York (each a "New York Court") in any action arising out of or
relating to the Agreement or the transactions contemplated thereby, and has
validly and irrevocably appointed the Authorized Agent (as defined therein) as
its authorized agent for the purpose described in Section 15 thereof; and
service of process effected on such agent in the manner set forth in Section 15
thereof will be effective to confer valid personal jurisdiction over the
Company; [SUBJECT TO CUSTOMARY QUALIFICATIONS] AND
(e) All necessary notices with respect to the offering
contemplated in the Underwriting Agreement have been filed with the Nasdaq
SmallCap Market.
SCHEDULE V
CZECH COUNSEL OPINIONS
On the basis of the foregoing and subject to the qualifications hereinafter
expressed, we are of the opinion that:
(f) Cesky Mobil has been duly organized and is validly existing
as a joint stock company under the laws of the Czech Republic.
(g) Cesky Mobil's registered capital amounts to CZK
12,956,959,380 and is divided into (i) [ ] common registered shares with a
nominal value of CZK 1,000 each; (ii) [ ] preferred (priority) registered shares
with a nominal value of CZK 1,000 each; and (iii) [ ] common registered shares
with a nominal value of CZK 10 each; the registered capital of Cesky Mobil has
been paid up in full.
(h) TIW Czech N.V. is the record owner of (i) [ ] common
registered shares of Mobil with a nominal value of CZK 1,000 each; (ii) [ ]
preferred (priority) registered shares of Cesky Mobil with a nominal value of
CZK 1,000 each; and (iii) [ ] common registered shares of Cesky Mobil with a
nominal value of CZK 10 each; all such shares in the aggregate representing
[ ]% of the registered capital of Cesky Mobil.
ROMANIAN COUNSEL OPINIONS
On the basis of the foregoing and subject to the qualifications hereinafter
expressed, we are of the opinion that:
(i) MobiFon has been duly organized and is validly existing as a
joint stock company under the laws of Romania.
(j) The total number of issued and outstanding shares of MobiFon
is [ ] shares, nominal value ROL 10,000 per share. MobiFon Holdings B.V. is the
record owner of [ ] shares of MobiFon, and MobiFon itself is the record owner of
[ ] shares.
Our opinion in (b) above with respect to the number of shares owned of record by
MobiFon Holdings B .V. and MobiFon is based solely upon our review of the
register of shareholders of MobiFon. According to Romanian law, in case of a
non-publicly traded joint stock company, the register of shareholders maintained
by the company reflects the ownership structure and historically evidences the
transfer of shares in the company. Moreover, in case of transfer of shares, the
transfer of ownership right is effective upon registration of such transfer
within the register of shareholders and upon the share certificates, in case of
materialized shares. The registered owner is entitled to vote, to receive
notices and dividends and otherwise to exercise the rights and powers related to
such shares, provided that shares owned by the issuer itself are not entitled to
vote at the general meeting or receive dividends.
NETHERLANDS AND NETHERLANDS ANTILLES COUNSEL OPINIONS
On the basis of the foregoing and subject to the qualifications hereinafter
expressed, we are of the opinion that:
(k) TAC has been duly incorporated and is validly existing under
the laws of the Netherlands Antilles as a public limited company (naarnloze
vennootschap) and is in good standing under the laws of the Netherlands
Antilles;
(l) Each of TIWC, ClearWave and TIW Czech has been duly
incorporated and is validly existing under the laws of the Netherlands as a
public limited company (naamloze vennootschap) and is in good standing under the
laws of the Netherlands;
(m) Holdings has been duly incorporated and is validly existing
under the laws of the Netherlands as a private company with limited liability
(besloten vennootschap met beperkte aansprakelijkheid) and is in good standing
under the laws of the Netherlands;
(n) The present issued and outstanding share capital of TAC
consists of [ ] shares, each with a par value of USD 0.01, all of which are held
by TIWI;
(o) The present issued and outstanding share capital of TIWC
consists of [ ] ordinary shares, according to its articles of association (and
in accordance with article 67 of Book 2 of the Dutch Civil Code) each with a par
value of NLG 0.01, [ ] of which are held by TAC and [ ] are held by TIWI;
(p) The present issued and outstanding share capital of ClearWave
consists of (i) [ ] Class A Subordinate Voting shares, each with a par value of
EUR 0.10, [ ] of which are held by TIWI, (ii) [ ] Class B Multiple Voting
shares, each with a par value of EUR 0.50, [ ] of which are held by TIWC, and
(iii) [ ] C shares, each with a par value of EUR0.10, [ ] of which are held by
ClearWave;
(q) The present issued and outstanding share capital of Holdings
consists of [ ] ordinary shares, each with a par value of EUR 1., [ ] of which
are held by ClearWave;
(r) The present issued and outstanding share capital of TIW Czech
consists. of (i) [ ] Class A Series I shares, each with a par value of EUR 1., [
] of which are held by ClearWave, (ii) [ ] Class A Series 2 shares, each with a
par value of EUR 1., all of which are held by ClearWave, (iii) [ ] Class B
shares, each with a par value of EUR 1., all of which are held by others than
the Companies or TIWI, and (iv) [ ] Non cumulative preferred Class C shares,
with a par value of EUR 1., which are held by ClearWave.
We note that under the laws of the Netherlands:
o an issue of shares or transfer of shares in the capital of TIWC,
ClearWave, Holdings and TIW Czech can only be effected by a notarial
deed;
o in the event of an issue of new shares, the issuing company must
always be a party to the notarial deed of issue;
o in the event of a transfer of shares, the rights attached to the
shares (such as voting rights and distribution rights) can, unless the
company whose shares are being transferred is a
party to the deed of transfer, only be exercised after the company has
acknowledged the transfer of the shares or the deed of transfer has
been served (betekend) upon the company;
o each of the board of managing directors of TIWC, ClearWave, Holdings
and TIW Czech has an obligation to keep the Shareholders' Registers up
to date;
We note that under the laws of the Netherlands Antilles:
o the transfer of shares in the capital of TAC can only be effected by
serving (betekenen) the deed of transfer upon TAC, or by written
acknowledgement thereof by TAC;
o until the shares are fully paid-up, each of the board of managing
directors of TAC has an obligation to keep the Shareholders' Registers
up to date.
SCHEDULE VI
SELLING SHAREHOLDER COUNSEL OPINIONS
On the basis of the foregoing and subject to the qualifications hereinafter
expressed, we are of the opinion that:
(s) The Selling Shareholder has been duly constituted and is
validly existing as a legal person or entity, in good standing under the laws
governing its constitution, with the requisite power and authority to own the
Shares being sold by it pursuant to the Agreement.
(t) The Selling Shareholder has been duly authorized to enter
into, execute and deliver the Agreement. The Agreement has been duly executed
and delivered by the Selling Shareholder and, assuming due authorization,
execution, delivery and performance by the other parties thereto, constitutes
the valid and legally binding obligation of the Selling Shareholder, enforceable
against the Selling Shareholder in accordance with its terms, subject to
[CUSTOMARY QUALIFICATIONS].
(u) The execution and delivery by the Selling Shareholder of the
Agreement, the compliance by the Selling Shareholder with its obligations
thereunder and the sale by the Selling Shareholder of the Shares to the
Underwriters thereunder, will not conflict with or result in a breach or
violation of any of the terms or provisions of the charter, bylaws or similar
organizational documents of the Selling Shareholder and no consent, approval,
authorization, order, registration or qualification of or with any person, court
or governmental agency or body is required for the sale of the Shares or the
consummation by the Selling Shareholder of the transactions contemplated by the
Agreement, other than as have been obtained.