Draft (9): 26 August 1997
DATED AUGUST 1997
INTERNATIONAL WIRELESS COMMUNICATIONS PAKISTAN LIMITED
PAKISTAN WIRELESS HOLDINGS LIMITED
SOUTH ASIA WIRELESS COMMUNICATIONS (MAURITIUS) LIMITED
VANGUARD PAKISTAN, INC.
AND
ASIA PACIFIC CELLPHONE CO. INC.
---------------------------------
DEED OF ADHERENCE
TO
SHAREHOLDERS' AGREEMENT
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇
▇▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
REF: MDG/JSC/JL/85998.8/0085862.21
CONTENTS
CLAUSE HEADING PAGE
1. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Subscription . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6. Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7. Exercise of First Option . . . . . . . . . . . . . . . . . . . . . . . 5
8. Amendments to IWCPL Shareholders' Agreement. . . . . . . . . . . . . . 5
9. Enforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10. Representations, Warranties and Undertakings . . . . . . . . . . . . . 9
11. Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12. Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 11
13. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
14. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
EXHIBIT A IWCPL Shareholders' Agreement
EXHIBIT B-1 PMCL Shareholders' Agreement
EXHIBIT B-2 Side Letters to the PMCL Shareholders' Agreement
EXHIBIT C-1 Memorandum and Articles of Association of the Company
EXHIBIT C-2 Resolutions of the Shareholders of the Company
EXHIBIT D Loan Agreement
EXHIBIT E Corporate Information relating to the Company
EXHIBIT F Form of Letter from the Company to Motorola
EXHIBIT G Costs and Expenses Letter
THIS DEED OF ADHERENCE is dated August 1997 and is made BETWEEN:
(1) INTERNATIONAL WIRELESS COMMUNICATIONS PAKISTAN LIMITED, a Mauritius company
with its registered offices at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Street, Port Louis, Mauritius (the "Company");
(2) PAKISTAN WIRELESS HOLDINGS LIMITED, a Mauritius company with its registered
offices at ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Street, Port Louis,
Mauritius ("IWC");
(3) SOUTH ASIA WIRELESS COMMUNICATIONS (MAURITIUS) LIMITED, a Mauritius company
with its address for correspondence at c/o Asian Infrastructure Fund
Advisers Limited, ▇▇▇▇▇ ▇▇▇▇-▇▇, ▇▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ("SA
Wireless");
(4) VANGUARD PAKISTAN, INC, a Delaware corporation with its principal offices
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, U.S.A.
("Vanguard"); and
(5) ASIA PACIFIC CELLPHONE CO. INC., a Mauritius company with its registered
offices at ▇/▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ("Asia
Pacific").
WHEREAS:
(A) This Deed is supplemental to an Amended and Restated Shareholders'
Agreement in respect of the Company dated as of 13 August 1997 (the "IWCPL
Shareholders' Agreement") to which IWC, SA Wireless, Vanguard and the
Company are parties. An executed copy of the IWCPL Shareholders' Agreement
is annexed to this Deed as Exhibit A.
(B) Asia Pacific wishes to be allotted 1,269 Ordinary Shares and 14,986,890
Redeemable Preference Shares in the share capital of the Company and, in
accordance with Section 4(g) of the IWCPL Shareholders' Agreement, has
agreed to enter into this Deed.
NOW THIS DEED WITNESSETH that:
1. INTERPRETATION
In this Deed:
(a) except as the context may otherwise require, all words
and expressions defined in the IWCPL Shareholders' Agreement shall have the same
meanings when used herein;
(b) "Completion" shall mean completion of the transactions
contemplated in this Deed and "Completion Date" shall mean the date of the First
Option Closing or such other date as may be agreed by the parties; and
(c) references to Clauses shall be to clauses of this Deed
and references to Sections and sub-sections shall be to sections and
sub-sections of the IWCPL Shareholders' Agreement.
2. CONDITIONS
2.1 Completion of this Deed is conditional upon:
(a) completion of the Motorola Share Purchase Agreement in
accordance with its terms and execution of all documents ancillary thereto
(including the PMCL Shareholders' Agreement substantially in the form of Exhibit
B-1 hereto) and no amendments having been made thereto since the date of
execution thereof without the prior written consent of Asia Pacific;
(b) completion of the Share Purchase Agreement between the
Company and Continental Communications Limited in accordance with its terms and
execution of all documents ancillary thereto and no amendments having been made
thereto since the date of execution thereof without the prior written consent of
Asia Pacific;
(c) execution of the side letter to the PMCL Shareholders'
Agreement substantially in the form of the draft attached hereto as Exhibit B-2
(together with the PMCL Letter Agreement referred to as the "Side Letters"); and
(d) Asia Pacific requiring the Company in writing to
exercise the First Option and Asia Pacific funding the purchase price of the
First Option Shares (as defined in the Motorola Share Purchase Agreement) and
the capital contribution of US$1,027,890 in connection therewith.
2.2 The parties may waive all or any of the conditions set out
in Clause 2.1 by written agreement.
2.3 The parties hereto shall use all reasonable endeavours to
ensure that the conditions set out in Clause 2.1 shall be fulfilled by the date
referred to in Clause 2.4.
2.4 If the conditions set out in Clause 2.1 shall not have been
fulfilled (or waived in accordance with Clause 2.2) by 5:00 pm London time on 5
September 1997, this Deed and everything herein contained shall, subject to the
liability of any party to the others in respect of any breaches of the terms
hereof, including the obligations under Clause 2.3, antecedent thereto, be null
and void and of no effect.
2.5 Completion shall occur simultaneously with the First Option
Closing. The obligation of Asia Pacific to subscribe for Shares under this Deed
shall be
conditional on and interdependent with the First Option Closing. If (for any
reason other than default on the part of Asia Pacific) the First Option Closing
does not take place as contemplated under the Motorola Share Purchase Agreement
or the Asia Pacific Shares are not transferred to Asia Pacific in accordance
with the terms of this Deed, the Company shall return forthwith all monies paid
to it hereunder by Asia Pacific together with any interest accrued thereon.
3. WAIVER
Each of IWC, SA Wireless and Vanguard hereby waives its Right of First
Offer granted pursuant to Section 4 of the IWCPL Shareholders' Agreement and any
breach of the IWCPL Shareholders' Agreement caused by the execution and
performance of this Deed.
4. SUBSCRIPTION
4.1 On the terms and subject to the conditions set out in this
Deed, on Completion Asia Pacific shall subscribe for, and the Company shall
issue and allot to Asia Pacific and/or its nominee, 1,269 Ordinary Shares and
14,986,890 Redeemable Preference Shares (together the "Asia Pacific Shares")
free from all liens, charges and encumbrances together with all rights attaching
thereto as from the date hereof including the right to receive all dividends and
distributions declared, made or paid by the Company on or after the date hereof.
This Deed shall constitute Asia Pacific and/or its nominee's application for the
Asia Pacific Shares, subject to the Memorandum and Articles of Association of
the Company.
4.2 The subscription price payable by Asia Pacific to the
Company shall be US$12.69 for the Ordinary Shares, representing a price of
US$0.01 per Ordinary Share and US$14,986,890 for the Redeemable Preference
Shares, representing a price of US$1.00 per Redeemable Preference Share. No
later than 2 September 1997, Asia Pacific shall deliver payment to the Company
by way of telegraphic transfer of the sum of US$14,986,902.69, which shall be
applied at Completion to the payment of the subscription price of the Asia
Pacific Shares. If Asia Pacific shall fail to make such payment by 5 September
1997 and the Company shall have already irrevocably exercised the First Option,
then Asia Pacific shall, or failing Asia Pacific, ▇▇▇▇▇▇▇ Holdings Limited,
whose registered office is at Akara Building, ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Cay
I, Road Town Tortola, British Virgin Islands, shall, indemnify the Company for
all reasonable costs, losses, liabilities, claims, actions, proceedings and
expenses properly incurred by the Company, that arise directly from the breach
by Asia Pacific of its obligations to make such payment.
4.3 Completion shall take place at the offices of Motorola in
London, England on or before the Completion Date when all (but not part only) of
the following business shall be transacted:
(a) IWC, SA Wireless and Vanguard shall procure the
directors of the Company to deliver to Asia Pacific (or its authorised
representative(s)) the following in respect of the Asia Pacific Shares
subscribed for by Asia Pacific pursuant to this Deed:
(i) minutes of a board meeting of the board of
directors of the Company at which upon payment in full by Asia Pacific and/or
its nominee of the subscription price payable for the Asia Pacific Shares
pursuant to Clause 4.2, valid resolutions are passed to allot and issue the Asia
Pacific Shares to Asia Pacific and/or its nominee, to seal, issue and deliver to
Asia Pacific and/or its nominee share certificates duly executed on behalf of
the Company and to authorise and direct the company secretary to enter the
particulars of Asia Pacific and/or its nominee in the register of members of the
Company as the holder(s) of the Asia Pacific Shares;
(ii) share certificates in respect of the Asia
Pacific Shares, duly executed on behalf of the Company; and
(iii) copies of all of the agreements referred to
in Clause 2.1 and of all ancillary documents thereto and evidence reasonably
satisfactory to Asia Pacific that execution and completion of such agreements
has taken place in accordance with their respective terms.
(b) IWC, SA Wireless and Vanguard shall procure a meeting
of the board of directors of the Company to be held at which resolutions shall
be passed:
(i) to approve and give effect to all of the
matters referred to above;
(ii) to approve Asia Pacific and such of its
nominees as aforesaid for registration as the holder(s) of the Asia Pacific
Shares; and
(iii) to appoint ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as a new
director of the Company with effect from the close of business of the relevant
meeting.
(c) Asia Pacific shall provide evidence to the Company
that it has already delivered payment to the Company by way of telegraphic
transfer of the sum of US$14,986,902.69 in payment of the subscription price for
the Asia Pacific Shares.
4.4 No party shall be obliged to complete this Deed or perform
any obligations hereunder unless the other parties comply fully with the
requirements of this Clause 4.
5. COVENANT
Asia Pacific hereby covenants to the other parties hereto and to the
Company as trustee for all other persons who may hereafter become bound by the
IWCPL Shareholders' Agreement, to adhere to and be bound, with effect from
Completion, by all the duties, burdens and obligations of a shareholder holding
the same class of share capital as the Asia Pacific Shares imposed pursuant to
the provisions of the IWCPL Shareholders' Agreement and all documents expressed
in writing to be supplemental or ancillary thereto as if Asia Pacific had been
an original party to the IWCPL Shareholders' Agreement since the date thereof.
6. ENFORCEABILITY
Each existing shareholder and the Company shall, with effect from
Completion, be entitled to enforce the IWCPL Shareholders' Agreement against
Asia Pacific, and Asia Pacific shall, with effect from Completion, be entitled
to all rights and benefits of the other Shareholders qua shareholders under the
IWCPL Shareholders' Agreement in each case as if Asia Pacific had been an
original party to the IWCPL Shareholders' Agreement since the date thereof.
7. EXERCISE OF FIRST OPTION
The parties agree that, notwithstanding Section 5.1 of the IWCPL
Shareholders' Agreement, the decision to exercise the First Option shall be made
by Asia Pacific. Asia Pacific hereby gives notice to the Company to exercise
the First Option and gives notice to the other Shareholders to cause the Company
to exercise the First Option in accordance with the provisions of Clauses 9(a)
to (d) of the Motorola Share Purchase Agreement and the other Shareholders shall
procure the Company to execute and deliver a notice of exercise to Motorola
substantially in the form set out in Exhibit F and to apply US$13,959,000 of the
subscription monies received from Asia Pacific in payment of the First Option
Purchase Price (as defined in the Motorola Share Purchase Agreement).
8. AMENDMENTS TO IWCPL SHAREHOLDERS' AGREEMENT
The IWCPL Shareholders' Agreement shall, with effect from Completion,
be amended as follows:
(a) RECITALS
(i) by inserting after the first paragraph of the
IWCPL Shareholders' Agreement, the following new recital:
"The Company, International Wireless Communications Limited and SA
Wireless are each parties to that certain Shareholders' Agreement, dated as of
17 July 1997 and in accordance with Section 15.7 of that agreement, each party
hereby agrees to amend and restate that agreement in its entirety as set forth
below."
(ii) by deleting the original second recital
paragraph and replacing it in its entirety by the following:
"The Company has issued and allotted to IWC, and IWC has subscribed
for, 23,622,000 Shares, comprised of 2,000 Ordinary Shares and 23,620,000
Redeemable Preference Shares, and the Company has issued and allotted to SA
Wireless, and SA Wireless has subscribed for, 23,622,000 Shares comprised of
2,000 Ordinary Shares and 23,620,000 Redeemable Preference Shares, and the
Company has issued and allotted to Vanguard, and Vanguard has subscribed for
7,086,600 Shares, comprised of 600 Ordinary Shares and 7,086,000 Redeemable
Preference Shares."
(iii) by adding "subject to the terms and
conditions thereof" after the words "IWC will vote all Shares held by Vanguard"
on the last line of the third original recital paragraph.
(b) DEFINITIONS
by amending the definition of "Shareholder" in Section 1.1 by deleting
Clause (i) thereof and replacing it in its entirety by "each of IWC Group, SA
Wireless and Asia Pacific for so long as such Shareholder remains a shareholder
of the Company,".
(c) FIRST OPTION
by deleting the words "up to" on the sixth line of Section 2.2(a).
(d) IWC OPTION
by deleting Sections 5.2, 5.3 and 5.4 and replacing them in their
entirety by the following:
8.2 IWC OPTION
(a) Asia Pacific hereby irrevocably and unconditionally grants
an option to the IWC Group (the "IWC Option"), effective upon the exercise of
the First Option, exercisable on one occasion only at any time in the 12 month
period commencing from 1 January 1998 (the "IWC Option Period") to purchase from
Asia Pacific such number of Shares held by Asia Pacific as amount to 5.71% of
the issued share capital of the Company at that time (the "IWC Option Shares")
on the terms and subject to the conditions of this Section 5.2 and Section 5.4;
PROVIDED, HOWEVER, that notwithstanding the foregoing, IWC may exercise the IWC
Option on one occasion at any time prior to the commencement of the IWC Option
Period if it pays to Asia Pacific the IWC Option Share Price (as defined in
Section 5.4(a)) calculated as if the IWC Option had been exercised as of 1
January 1998.
(b) Subject to this Section 5.2 and Section 5.4, the IWC Group
may, at any time during the IWC Option Period, exercise the IWC Option by
serving on Asia Pacific written notice of such exercise. The notice of exercise
of the IWC Option once served shall be irrevocable and binding on the IWC Group
and may not be withdrawn without the prior written consent of Asia Pacific.
8.3 Asia Pacific Put Right
(a) Asia Pacific shall have the right (the "Asia Pacific Put
Right"), effective upon the exercise of the First Option, exercisable on one
occasion only at any time in the 12 month period commencing from 1 January 1998
(the "Asia Pacific Put Period") and so long as the IWC Option has not
theretofore been exercised, to sell the IWC Option Shares to IWC and IWC shall
be obligated to purchase the IWC Option Shares from Asia Pacific on the terms
and subject to the conditions of this Section 5.3 and Section 5.4.
(b) Subject to this Section 5.3 and Section 5.4, Asia Pacific
may, at any time during the Asia Pacific Put Period and so long as the IWC
Option has not theretofore been exercised, exercise the Asia Pacific Put Right
by serving on IWC written notice of such exercise. The notice of exercise of
the Asia Pacific Put Right once served shall be irrevocable and binding on Asia
Pacific and may not be withdrawn without the prior written consent of IWC.
8.4 Closing of IWC Option or Asia Pacific Put Right
(a) The purchase price (the "IWC Option Share Price") payable by
the IWC Group for the IWC Option Shares, whether pursuant to the exercise of the
IWC Option under Section 5.2 or the exercise of the Asia Pacific Put Right under
Section 5.3, shall be the sum of the amounts that have been paid by the Company
in respect of the underlying shares of PMCL that are attributable and correspond
to the IWC Option Shares (the "Underlying Asia Pacific PMCL Shares") by way of
the original Purchase Price (as defined in the Motorola Share Purchase
Agreement) per share of the Underlying Asia Pacific PMCL Shares, any amounts
funded by the Company as additional capital contributions or shareholder loans
to PMCL in respect of the Underlying Asia Pacific PMCL Shares, the amounts of
any loans that the Company may have made to Saif Telecom (Pvt.) Limited ("SAIF")
to enable SAIF to respond to any shareholder loans to, or any capital call of,
PMCL which are attributable to the Underlying Asia Pacific PMCL Shares and the
pro rata share based on the percentage of the IWC Option Shares to the total
issued Shares of the fees, costs and expenses of third party advisors and
consultants engaged on behalf of the Company in connection with evaluating the
proposed acquisition of shares in PMCL and of any fees (if any) required to have
been paid in connection with the consummation of the acquisition by the Company
of shares in PMCL (such amounts, collectively, the "Actual Investment Cost"),
plus a return in United States dollars terms on the Actual Investment Cost
calculated at a rate equal to a 40% internal rate of return. The calculation of
the internal rate of return shall be made with respect to each separate amount
that constitutes the Actual Investment Cost commencing on the date each such
separate amount was paid by the Company in respect of the Underlying Asia
Pacific PMCL Shares. For the purposes of this Section 5.4(a), "internal rate of
return" means the discount rate which, when applied, constitutes the present
value, as of the date of closing of the sale and purchase of the IWC Option
Shares, of the Actual Investment Cost that is equal to the present value as of
the date of closing of the sale and purchase of the IWC Option Shares of all the
proceeds generated from the Actual Investment Cost.
(b) Following the exercise of the IWC Option in accordance with
Section 5.2 or the exercise of the Asia Pacific Put Right in accordance with
Section 5.3, the closing of the sale and purchase of the IWC Option Shares shall
take place at the principal offices of the Company or such other place as IWC
and Asia Pacific mutually agree on the seventh Business Day after the date of
the exercise of the IWC Option or the Asia Pacific Put Right, as the case may
be. At the closing, (i) Asia Pacific shall deliver share certificates to IWC
totalling the number of the IWC Option Shares, together with instruments of
transfer in respect thereof, and (ii) IWC shall pay the IWC Option Share Price
in cash by wire transfer of immediately available funds to the bank account
designated by Asia Pacific in writing."
(c) SHAREHOLDER VOTES
by deleting the words "consent of all of the Shareholders owning
90%" in the second line of Section 6.2(a) and replacing them with "consent of
Shareholders owning collectively at least 90%".
(d) BOARD OF THE COMPANY
by deleting the words "three nominees of SA Wireless" where they
appear in Section 6.3.2 and substituting therefor the words "two nominees of
SA Wireless and (iii) one nominee of Asia Pacific".
(e) WRITTEN RESOLUTION
by amending Section 6.4.5 by adding the word "prior" before the word
"notice".
(f) PMCL BOARD
(i) by deleting "but if the number of directors
constituting the PMCL Board is increased to 10, then AIF shall have the right
to directly nominate three directors to the PMCL Board" in the fourth to six
lines of Section 6.5; and
(ii) by adding at the end of the first sentence of Section
6.5 the following as sub-clause (c): "and (c) so long as Asia Pacific owns
beneficially not less than 11% of the total issued Shares, Asia Pacific shall
have the right to cause the Company to nominate one director designated by
Asia Pacific from time to time to the PMCL Board and to cause the Company to
remove and / or replace such director from time to time, by written notice to
the Company, which notice the Company shall comply with and the Shareholders
agree to procure the Company to do the foregoing. For the avoidance of
doubt, in the event that the Shareholders become direct shareholders of PMCL
following a Deadlock (as defined in Section 6.9) the Shareholders shall have
the right to nominate the same number of directors directly to the PMCL Board
as under this Section 6.5".
(g) PMCL AFFAIRS
(i) by deleting the words "unanimous vote of the
Shareholders" in the third line of Section 6.6(a) and replacing them with
"vote of Shareholders owning collectively at least 90% of the Shares"; and
(ii) by deleting Section 6.6(b) and replacing it in its
entirety with:
A. Except for the matters referred to in Section
6.2, the Shareholders and the Board shall discuss matters concerning the
business of PMCL with a view to achieving a vote of at least 90% of the
Shares held by the IWC Group, SA Wireless and Asia Pacific in respect of
decisions of the shareholders of PMCL or of the PMCL Board. If such voting
threshold cannot be reached then (i) in the case of a PMCL shareholder
decision, the
Company in its capacity as a shareholder of PMCL shall vote the shares held
by it in PMCL in such manner to reflect the differing positions of the IWC
Group, SA Wireless and Asia Pacific, and (ii) in the case of a PMCL Board
decision, each of the IWC Group, SA Wireless and Asia Pacific shall be free
to direct their nominees on the PMCL Board to vote as the IWC Group, SA
Wireless or Asia Pacific, as the case may be, may determine."
(h) MANAGEMENT OF PMCL
by adding "and Asia Pacific" after the words "SA Wireless" in the 9th
and 10th lines of Section 6.7.
(i) NON-COMPETITION
by adding the words "or Asia Pacific or an Affiliate thereof" after
the words "SA Wireless or an Affiliate thereof" on the third line of Section
6.8, the words "and to Asia Pacific or an Affiliate designated by it" after
the words "SA Wireless or an Affiliate designated by it" on the seventh line,
the words "and Asia Pacific" after "IWC Group and SA Wireless" on the ninth
line, the words "and to Asia Pacific or its Affiliate" after the words "SA
Wireless or its Affiliate" on the tenth line and the words "or to Asia
Pacific" after the words "SA Wireless" on the fourteenth line.
(j) NOTICES
by adding the following sub-section (d) to Section 15.2:
"if to Asia Pacific, to:
Asia Pacific
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile No: ▇▇▇-▇▇▇▇-▇▇▇▇"
9. ENFORCEMENT
The Company hereby undertakes to take all reasonable steps required
by IWC, SA Wireless, Vanguard and/or Asia Pacific (at the request of any of
the foregoing) to enforce the provisions of the PMCL Shareholders' Agreement
and the Side Letters against the other parties thereto.
10. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
(a) IWC and SA Wireless hereby severally warrant and represent
to Asia Pacific as at Completion:
(i) that the PMCL Shareholders' Agreement and the Side
Letters have been executed substantially in the form of the drafts attached
hereto as Exhibits B-1 and B-2, that such agreements and each of the other
agreements referred to in Clause 2.1 have been completed in accordance with
their terms and that no amendments have been made to these agreements or to
the IWCPL Shareholders' Agreement (save for this Deed and the Side Letters
set out in Exhibit B-2) since their respective dates of execution;
(ii) that the 1,269 Ordinary Shares and the 14,986,890
Redeemable Preference Shares to be issued and allotted to Asia Pacific shall,
at Completion, comprise 21.62% of the issued Ordinary Shares and the issued
Redeemable Preference Shares of the Company respectively and shall be issued
fully paid up and that the Ordinary Shares and the Redeemable Preference
Shares shall carry the same voting and other rights as the other existing
Ordinary Shares and Redeemable Preference Shares, respectively and that,
subject to completion of the First Option, the Company shall hold
beneficially not less than 58.69% of the issued share capital of PMCL;
(iii) that the Memorandum and Articles of Association of
the Company are in the form attached hereto as Exhibit C-1 and have been or
will be amended in accordance with the resolutions of the shareholders of the
Company dated 13 August 1997 and attached hereto as Exhibit C-2;
(iv) the Company has not carried on any business, incurred
any liabilities or entered into any agreements since its date of
incorporation other than as contemplated in the IWCPL Shareholders' Agreement
and the agreements referred to in Clause 2.1 and in sub-clause (v);
(v) the Company has entered into a loan agreement with
PMCL, a copy of which is attached hereto as Exhibit D pursuant to which the
Company has agreed to advance to PMCL the sum of US$7,157,487 on the terms
and conditions set out in such agreement and no amendments have been or will
be made to such agreement prior to Completion;
(vi) the Company has been duly incorporated under the laws
of Mauritius, is validly existing and is not engaged in any action or proceeding
before any court, tribunal, arbitrator or similar authority;
(vii) the execution and performance by it and by the
Company of the agreements referred to in Clause 2.1 to which it is a party
have been duly authorised and do not violate any laws of Mauritius and the
obligations expressed to be assumed by such party constitute legal, valid and
binding obligations of that party;
(viii) no option or lien or other form of security has been
granted or agreed to be granted in respect of any of the shares of PMCL held
by the Company
other than pursuant to the IWCPL Shareholders' Agreement and the PMCL
Shareholders' Agreement; and
(ix) the information contained in Exhibit E is (not taking
into account Asia Pacific's subscription hereunder) accurate in all material
respects and is not misleading.
(b) Each of Asia Pacific, IWC, Vanguard and SA Wireless hereby
undertakes that, in the event of a transfer by the Company of any of its
shares in PMCL (pursuant to paragraph 6 of the PMCL Letter Agreement)
resulting from any default or action on its part, it shall promptly transfer
to the other Shareholders, pro rata to their shareholdings in the Company,
such number of its Shares as shall give each of them the same percentage
indirect holding in PMCL as they had immediately prior to any such transfer
by the Company.
11. INFORMATION
Each of IWC, SA Wireless, Vanguard and the Company hereby covenants,
with effect from the date hereof through to the Completion Date, to Asia
Pacific to keep Asia Pacific fully informed promptly in writing of the status
of each of the agreements referred to in Clause 2.1 (including, without
limitation, the expected dates of execution and/or completion of the same as
the case may be) and shall supply and give Asia Pacific access to all
information which may be relevant to Asia Pacific's decision to exercise the
First Option that is in its possession or control and not at the date hereof
subject to any obligations of confidentiality (but expressly excluding any
financial or other analyses or statistics that are prepared by it for
internal purposes) and such other information as Asia Pacific may reasonably
request including evidence reasonably satisfactory to Asia Pacific of the
fulfilment of the conditions set out in sub-clauses (a), (b) and (c) of
Clause 2.1.
12. COSTS AND EXPENSES
12.1 Each party shall bear its own costs and expenses incurred by it
in connection with the negotiation, preparation, execution and performance of
this Deed.
12.2 Subject to the conditions in Clause 2.1 being satisfied, Asia
Pacific agrees with effect from Completion that by this Deed it shall be
joined as a party to and become bound by the terms and conditions of the
letter attached hereto as Exhibit G as though it were an original party
thereto.
13. COUNTERPARTS
This Deed may be executed by the parties in separate counterparts,
each of which when so executed and delivered shall be an original but all of
which together shall constitute one and the same instrument.
14. GOVERNING LAW
This Deed shall be governed by and construed in accordance with the
laws of England and Wales.
IN WITNESS whereof this Deed has been executed as a deed on the date
first above written.
SIGNED by )
)
)
)
)
for and on behalf of )
INTERNATIONAL WIRELESS )
COMMUNICATIONS )
PAKISTAN LIMITED )
in the presence of: )
SIGNED by )
)
)
)
)
for and on behalf of )
PAKISTAN WIRELESS )
HOLDINGS LIMITED )
in the presence of: )
SIGNED by )
)
)
)
)
for and on behalf of )
SOUTH ASIA WIRELESS )
COMMUNICATIONS )
(MAURITIUS) LIMITED )
in the presence of: )
SIGNED by )
)
)
)
)
for and on behalf of )
VANGUARD PAKISTAN, INC. )
in the presence of: )
SIGNED by )
)
)
)
)
for and on behalf of )
ASIA PACIFIC CELLPHONE CO. INC. )
in the presence of: )
EXHIBIT A
IWCPL SHAREHOLDERS' AGREEMENT
EXHIBIT B-1
PMCL SHAREHOLDERS' AGREEMENT
EXHIBIT B-2
SIDE LETTERS TO THE PMCL SHAREHOLDERS' AGREEMENT
EXHIBIT C-1
-----------
MEMORANDUM AND ARTICLES OF ASSOCIATION OF THE COMPANY
EXHIBIT C-2
-----------
RESOLUTIONS OF THE SHAREHOLDERS OF THE COMPANY
EXHIBIT D
---------
LOAN AGREEMENT
EXHIBIT E
---------
CORPORATE INFORMATION RELATING TO THE COMPANY
1. Authorised share capital: US$77,000,000 comprised of
100,000,000 Ordinary Shares and
76,000,000 Redeemable Preference
Shares
2. Shareholders:
Name No. of Ordinary Shares No. of Redeemable Preference Shares
---- ---------------------- -----------------------------------
IWC 2,000 23,620,000
SA Wireless 2,000 23,620,000
Vanguard 600 7,086,000
3. Directors
▇▇▇ ▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ Y.P. ▇▇▇▇▇
EXHIBIT F
---------
FORM OF LETTER FROM THE COMPANY TO MOTOROLA
EXHIBIT G
---------
COSTS AND EXPENSES LETTER