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EXHIBIT 10.46
CALL OPTION AGREEMENT
This CALL OPTION AGREEMENT ("Agreement") dated as of the 27th day of
May, 1999, is entered into by and among ▇▇▇▇▇▇▇▇ Holdings of Delaware, Inc., a
Delaware corporation ("WHD"), ▇▇▇▇▇▇▇▇ International Company, a Delaware
corporation ("WIC"), ▇▇▇▇▇▇▇▇ International Telecom Limited, a Delaware
corporation ("WITL") and ▇▇▇▇▇▇▇▇ Communications Group, Inc., a Delaware
corporation ("WCG").
WHEREAS, WHD, a wholly-owned subsidiary of The ▇▇▇▇▇▇▇▇ Companies, Inc.
("TWC"), owns all of the issued and outstanding stock of WCG; and
WHEREAS, WHD owns all of the issued and outstanding stock of WIC, which
in turn owns all of the issued and outstanding stock of WITL, which is the owner
and holder of debt and equity in ▇▇▇▇▇▇▇ ▇.▇. Tecnologia Da
Informacao, a Brazilian company ("Lightel"); and
WHEREAS, in connection with TWC's initial public offering of shares of
WCG stock, WHD, WIC and WITL have determined to grant an exclusive option to WCG
to acquire either (1) the stock of WITL (the "WITL stock") or (2) the debt and
equity interests of WITL in Lightel (the "Lightel Assets" ) in exchange for
shares of WCG stock after the Initial Public Offering.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE 1
CALL OPTION RIGHT
WHD, WIC and WITL hereby grant to WCG an exclusive option to acquire
the WITL stock or the Lightel Assets (the "Call Option") in a transaction
intended to qualify as tax-free pursuant to Sections 368 (a) and 351 of the
Internal Revenue Code of 1986, as amended. The Call Option shall provide that
the WITL stock or the Lightel Assets are to be transferred by WIC and WITL to
WHD and subsequently contributed by WHD to WCG in exchange for shares of Class B
common stock of WCG equal in value to the net book value of the Lightel Assets.
The value and number of WCG Class B common shares to be transferred by WCG to
WHD shall be computed by using such shares' average closing price per share over
the twenty day trading-period prior to the transfer date in an amount which is
equal to the net book value of the Lightel Assets at the date of the transfer.
The Call Option shall be exercisable by WCG from January 1, 2000 through January
1, 2001, and shall be exercised in accordance with the Notice Provision below.
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Prior to the transfer of the WITL stock or Lightel Assets, and as a
condition thereto, WCG shall agree to be bound by all of the terms and
conditions of the following agreements:
(1) Subscription and Shareholder's Agreement dated January 27, 1997 by
and among ▇▇▇▇▇▇▇ ▇.▇. Tecnologia Da Informacao ("Lightel"), ▇▇▇▇▇ ▇.▇.
Empreendimentos e Participacoes ("Algar") and ▇▇▇▇▇▇▇▇ International Telecom
Limited ("WITL") as amended.
(2) Stock Purchase Agreement dated as of January 21, 1997 among ABC
Industria e Comercio S.A. - ABC INCO, Lightel, Algar and WITL.
(3) Loan Agreement dated as of March 30, 1998 among Lightel, Algar and
WITL.
and shall indemnify and hold harmless WHD, WIC and WITL from any and all
damages, liabilities, claims and expenses associated with such agreements. WCG
shall also agree to obtain from third parties and execute any amendments,
assignments, consents or other documentation necessary to transfer the WITL
stock or Lightel Assets from WIC and WITL to WHD and from WHD to WCG and shall
be required to assume any capital or other commitments WHD, WIC or WITL may have
to Lightel from the time of the transfer.
ARTICLE II
NOTICE OF EXERCISE OF CALL OPTION
In order to exercise the Call Option, WCG shall provide written notice
to WHD, WIC and WITL at the following address:
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇
▇▇. Vice-President, General Counsel
▇▇▇▇▇▇▇▇ Holdings of Delaware, Inc.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
The notice shall include an estimate of the number of WCG shares to be
transferred, the date of the transfer and any other pertinent details. WHD, WIC
and WITL shall make the determination of whether to transfer the WITL stock or
the Lightel Assets and shall then proceed to transfer in accordance with WCG's
notice.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF EACH PARTY
Each of the parties represents and warrants to each other party that:
(a) Such party has been duly organized, and is validly
existing and in good standing, under the laws of the jurisdiction of its
incorporation, has all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby,
and has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement;
(b) This Agreement has been duly executed and delivered by
such party and, assuming due and valid authorization, upon execution and
delivery by the other parties hereto, this Agreement constitutes a legal, valid
and binding obligation of such party, enforceable against such party in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other similar
laws of general application affecting enforcement of creditors' rights generally
and (ii) the availability of the remedy of specific performance or injunctive or
other forms of equitable relief being subject to equitable defenses and being
subject to the discretion of the court before which any proceeding therefor may
be brought;
(c) The execution and delivery of this Agreement by such party
will not result in a violation of, or a default under, or conflict with, or
require any consent, approval or notice under, any contract, trust, commitment,
agreement, obligation, understanding, arrangement or restriction of any kind to
which such party is a party or by which such party is bound.
ARTICLE IV
AMENDMENT AND WAIVER
No modification or amendment of this Agreement shall be effective
unless such modification or amendment is approved in writing by all of the
parties hereto. The failure of any party to enforce any of the provisions of
this Agreement shall in no way be construed as a waiver of such provisions and
shall not affect the right of such party thereafter to enforce each and every
provision of the Agreement in accordance with its terms.
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ARTICLE V
ARBITRATION
In the event of a dispute between any two or more parties with regard
to this Agreement, the matter will be submitted to arbitration for final and
binding resolution in accordance with the International Chamber of Commerce
Arbitration Rules. The arbitration will be held in Tulsa, Oklahoma in the United
States of America. The arbitrators shall be requested to render their decision
as promptly as reasonably practicable. An action to enforce judgment on the
award or decision of the arbitrators may be brought in any court of competent
jurisdiction.
ARTICLE VI
SEVERABILITY
Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law. If
any provision of this Agreement is held to be invalid, illegal or unenforceable
in any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
or any other jurisdiction, but this Agreement shall be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.
ARTICLE VII
GOVERNING LAW
This Agreement shall be governed by, enforced and construed in
accordance with the laws of the State of Oklahoma without regard to conflicts of
law rules which may refer the construction of the Agreement to any other
jurisdiction.
ARTICLE VIII
ASSIGNMENT
This Agreement and the rights, duties, benefits and obligations
hereunder shall be freely assignable by WHD, WIC and WITL but shall only be
assignable by WCG with the express written consent of the other parties hereto.
The rights, duties, benefits and obligations hereunder shall enure to the
benefit of and be binding upon the successors and permitted assigns of the
parties.
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ARTICLE IX
DESCRIPTIVE HEADINGS
The descriptive headings are for convenience only and do not constitute
a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Call Option
Agreement on the date first above written.
▇▇▇▇▇▇▇▇ HOLDINGS OF DELAWARE, INC.
By: /s/ ▇▇▇▇ ▇. HUSBAND
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Name: ▇▇▇▇ ▇. Husband
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Title: Assistant Treasurer
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▇▇▇▇▇▇▇▇ COMMUNICATIONS GROUP INC.
By: /s/ S. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: S. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Senior Vice President
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▇▇▇▇▇▇▇▇ INTERNATIONAL COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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Title: President
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▇▇▇▇▇▇▇▇ INTERNATIONAL TELECOM, LIMITED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice-President & Chief Financial Officer
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