Dated September [ ], 2004
HUNGARIAN TELEPHONE AND CABLE CORP.
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STOCKHOLDERS AGREEMENT
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between
THE STOCKHOLDERS NAMED HEREIN
STOCKHOLDERS AGREEMENT
[This stockholders agreement is a schedule to
the Call Option (as defined herein)]
Stockholders Agreement dated as of September [__], 2004 (this "Agreement")
by and among the holders of securities of the Company listed on Schedule I
hereto (each a "Stockholder" and together the "Stockholders").
W I T N E S S E T H :
WHEREAS, the parties desire to enter into an agreement with respect to the
management of Hungarian Telephone and Cable Corp., a Delaware corporation (the
"Company") , the transfer or other disposition of the Equity Securities (as
defined below) presently owned or hereafter acquired by any of the Stockholders
and certain other matters;
NOW, THEREFORE, in consideration of the representations, warranties,
agreements and covenants set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending legally to be bound, hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Defined Terms. The following terms when used in this
Agreement, including its preamble and recitals, shall, except where the context
otherwise requires, have the following meanings, such meanings to be equally
applicable to the singular and plural forms thereof:
"Affiliate" shall mean, with respect to any Person, any person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities
or by contract or otherwise.
"▇▇▇▇▇▇▇ Entities" shall mean Asset Holder PCC No. 2 Limited re: ▇▇▇▇▇▇▇
Emerging Economy Portfolio, EMDCD Limited and ▇▇▇▇▇▇▇ Global Special Situations
Fund Limited and their transferees and all Affiliates of the ▇▇▇▇▇▇▇ Entities
who own Equity Securities.
"Call Options" shall mean the three Option Agreements, dated as of the date
of the Purchase and Sale Agreement, among (i) TDC A/S and Asset Holder PCC No. 2
Limited re: ▇▇▇▇▇▇▇ Emerging Economy Portfolio, (ii) TDC A/S and EMDCD Limited,
and (iii) TDC A/S and ▇▇▇▇▇▇▇ Global Special Situations Fund Limited,
respectively, for the acquisition by TDC A/S of an aggregate of 1,383,544 shares
of common stock of the Company, and 18,000 shares of Series A Preferred Stock
convertible into 180,000 shares of common stock of the Company.
"Common Stock" means the common stock, par value $0.001 per share, of the
Company.
"EMDCD Option" shall mean the option agreement, dated as of the date of the
Purchase and Sale Agreements among TDC A/S and EMDCD Limited for the acquisition
of 1,141,744 Equity Securities.
"Encumbrance" means any security interest, pledge, mortgage, lien, charge,
adverse claim of ownership or use, or other encumbrance of any kind.
"Equity Securities" shall mean any Common Stock, any securities exercisable
or exchangeable for or convertible into Common Stock and any rights, options or
warrants to acquire any of the foregoing.
"Expiration Date" shall mean the date of consummation of a Sale Transaction
with respect to the Company.
"Person" shall mean and include an individual, a corporation, a limited
liability company, an association, a partnership, a joint venture, a trust or
estate, a government or any department or agency thereof, or any other entity or
governmental body.
"Public Offering" means the sale of Common Stock to the public pursuant to
an effective registration statement (other than a registration statement on Form
S-4 or S-8 or any similar or successor form or forms) filed under the Securities
Act.
"Purchase and Sale Agreements" shall mean the purchase and sale agreement
or agreements, dated on September 3, 2004, among CU Capital LLC (formerly CU
Capital Corp.) and/or Citizens Communications Company, as the case may be, and
one or more ▇▇▇▇▇▇▇ Entities.
"Rule 144" shall mean Rule 144 under the Securities Act or any successor
rule or regulation permitting limited purchase of restricted securities into the
public markets.
"Sale Transaction" shall mean: (a) a sale of all or substantially all of
the assets of the Company; (b) a merger or consolidation of the Company
(including a triangular merger involving any subsidiary thereof) with or into
any other entity (other than a merger or consolidation in which shares of the
Company's voting capital stock outstanding immediately before such merger or
consolidation are exchanged or converted into or constitute shares which
represent more than fifty percent (50 percent) of the surviving entity's voting
capital interests after such consolidation or merger); or (c) a transaction or
series of related transactions in which a person or group of persons (as defined
in Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended),
acquires beneficial ownership (as determined in accordance with Rule 13d-3 of
such Act) of more than 50 percent of the voting power of the Company; provided,
however, that any reorganization, merger or consolidation involving (a) only a
change in the state of incorporation of the Company or (b) a merger of the
Company with or into a wholly-owned subsidiary of the Company shall not
constitute a "Sale Transaction".
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stockholder Representative" shall mean the ▇▇▇▇▇▇▇ Representative and/or
the TDC Representative as the context may require.
"TDC Entities" shall mean the entities purchasing Equity Securities
pursuant to the Call Options and Affiliate their transferees and all Affiliates
of the TDC Entities who own Equity Securities.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
Section 2.01 Capitalization. Each party hereto represents that Schedule I
Part A hereto currently reflects all Equity Securities of which such party is
the record or beneficial owner and that Schedule I Part B will represent all
Equity Securities of which such Stockholder will be the record or beneficial
owner following the exercise of the Call Options. Unless otherwise indicated on
Schedule I, such party has, or will have, as the case may be, sole record and
beneficial ownership of all of the Equity Securities reflected by such party's
name, and no such Equity Securities are, or will be, subject to any voting
agreement or understanding nor subject to any agreement relating to or
restricting transfer (other than this Agreement and/or the Call Options).
Section 2.02 Organization. Each party hereto represents and warrants that
it is duly organized, validly existing, and in good standing under the laws of
the jurisdiction of its incorporation or formation, as the case may be.
Section 2.03 Authorization of Transaction. Each party hereto represents and
warrants that it has full power and authority, and has taken all corporate
actions necessary on the part of such Stockholder, to execute and deliver this
Agreement and to perform its obligations hereunder. Each party hereto represents
and warrants that this Agreement has been duly authorized, executed and
delivered by such party and constitutes the valid and legally binding obligation
of such party, enforceable against it in accordance with its terms, except to
the extent that the enforcement of the rights and remedies created therein is
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application affecting the enforcement of creditors' rights
and general principles of equity.
Section 2.04 Noncontravention. Each party hereto represents and warrants
that neither the execution and the delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will violate any material
agreement of such party or any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling or charge of any government or
governmental agency, to which such party or, to the knowledge of such party, to
which the Company, is subject or any provision of such party's charter or bylaws
except in each case for any approval required under Section 6.2(a) and 6.2(b) of
this Agreement.
ARTICLE III.
VOTING AGREEMENT
Section 3.01 Board of Directors of the Company. i) So long as the ▇▇▇▇▇▇▇
Entities collectively continue to hold Equity Securities representing at least
20 percent of the Equity Securities outstanding on a fully-diluted basis,
▇▇▇▇▇▇▇ Investment Management Limited (the "▇▇▇▇▇▇▇ Representative") shall have
the right to nominate 2 (two) persons for election as directors of the Company
(the "▇▇▇▇▇▇▇ Directors"). Such right to nominate persons for election as
directors of the Company shall be reduced to one person in the event the ▇▇▇▇▇▇▇
Entities collectively no longer hold Equity Securities representing at least 20
percent of the Equity Securities outstanding on a fully-diluted basis, and shall
remain at one as long as the ▇▇▇▇▇▇▇ Entities collectively own Equity Securities
representing at least 10 percent of the Equity Securities outstanding on a
fully-diluted basis.
So long as the TDC Entities collectively continue to hold Equity Securities
representing at least 20 percent of the Equity Securities outstanding on a
fully-diluted basis, TDC A/S (the "TDC Representative") shall have the right to
nominate 2 (two) persons for election as directors of the Company (the "TDC
Directors"). Such right to nominate persons for election as directors of the
Company shall be reduced to one person in the event the TDC Entities
collectively no longer hold Equity Securities representing at least 20 percent
of the Equity Securities outstanding on a fully-diluted basis, and shall remain
at one as long as the TDC Entities collectively own Equity Securities
representing at least 10 percent of the Equity Securities outstanding on a
fully-diluted basis. So long as the TDC Entities hold Equity Securities
representing at least 20 percent of the Equity Securities outstanding, the TDC
Representative shall have the right to nominate a TDC Director as chairman of
the Company's Board of Directors.
The Stockholders agree to maintain joint majority in the Board of Directors
of the Company as long as the TDC Entities and the ▇▇▇▇▇▇▇ Entities each
collectively hold Equity Securities representing at least 20 percent of the
Equity Securities outstanding on a fully-diluted basis, meaning that if the
total number of directors on the Board of Directors of the Company changes from
presently 7 persons to 8 persons the TDC Representative shall have the right to
nominate 3 persons while the ▇▇▇▇▇▇▇ Representative would only have the right to
nominate 2 persons and if the total number of directors on the Board of
Directors of the Company changes to 9 persons both the TDC Representative and
the ▇▇▇▇▇▇▇ Representative shall have the right to nominate 3 persons.
Section 3.02 Covenant to Vote. Each of the Stockholders shall appear in
person or by proxy at any annual or special meeting of stockholders of the
Company for the purpose of obtaining a quorum and shall vote or cause the vote
of the shares of Common Stock or any other Equity Securities entitled to vote in
the election of directors ("Voting Securities") owned by such Stockholder, or
take action by written consent, for the election of such nominee or nominees as
may be specified by the ▇▇▇▇▇▇▇ Representative and the TDC Representative in
accordance with Section 3.01, or at such representatives' request, for the
removal and replacement of any nominee previously so nominated by each of them.
In addition, each of the Stockholders shall appear in person or by proxy at any
annual or special meeting of stockholders of the Company for the purpose of
obtaining a quorum and shall vote or cause the vote of the shares of Common
Stock owned by such Stockholder or any Affiliate of such Stockholder upon any
matter submitted to a vote of the stockholders of the Company in a manner so as
to be consistent and not in conflict with, and to implement, the terms of this
Agreement.
Section 3.03 Vacancies/Removals. The ▇▇▇▇▇▇▇ Directors and the TDC
Directors shall be subject to removal by the ▇▇▇▇▇▇▇ Representatives and the TDC
Representatives, respectively, at any time, with or without cause. The ▇▇▇▇▇▇▇
Representatives and the TDC Representatives shall have the right to call a
special meeting of Stockholders at any time, and from time to time, for the sole
purpose of designating to or removing from the Board of Directors of the
Company, with or without cause, any person or persons nominated by such persons.
If the ▇▇▇▇▇▇▇ Representative or the TDC Representative calls such a special
meeting, the Stockholders shall vote all of their Common Stock and other voting
securities in support of such removal and for the election of such director or
replacements as may be nominated by the ▇▇▇▇▇▇▇ Representatives and the TDC
Representatives.
Section 3.04 No Voting or Conflicting Agreements. Each of the Stockholders
agrees that it will not grant any proxy or enter into or agree to be bound by
any voting trust with respect to its shares of Equity Securities or enter into
any stockholder agreements or arrangements of any kind with any Person with
respect to its Equity Securities in any such case in a manner that is
inconsistent with the provisions of this Agreement.
Section 3.05 Nomination of CEO and CFO. The Stockholders agree to use their
best efforts to cause the directors nominated by them and subsequently elected
to the Board of Directors of the Company (subject to such directors' fiduciary
duties) to vote in favor of nominating and electing, as chief executive officer
and/or chief financial officer of the Company, (i) such person or persons as may
be specified by the TDC Representative and reasonably acceptable to the ▇▇▇▇▇▇▇
Representative (if the TDC Entities collectively hold Equity Securities
representing at least 30 percent of the Equity Securities outstanding), or (ii)
such person or persons the TDC Representative and the ▇▇▇▇▇▇▇ Representative may
reasonably agree (if the TDC Entities collectively hold Equity Securities
representing less than 30 percent of the Equity Securities outstanding).
ARTICLE IV.
RESTRICTIONS ON TRANSFERS BY THE STOCKHOLDER
Section 4.01 Restrictions on Transfers Generally. Each Stockholder hereby
agrees that such Stockholder shall not, and shall not permit any Affiliate to,
directly or indirectly, transfer, sell or otherwise dispose of any shares of
Equity Securities, or create, incur or assume any Encumbrance with respect to
any shares of Equity Securities, other than in accordance with the terms and
conditions of this Agreement.
Section 4.02 Right of First Refusal. (a) If, at any time, any Stockholder
desires to sell, transfer or otherwise dispose of any shares of Equity
Securities then owned by such Stockholder (other than a disposition to an
Affiliate) to any third party pursuant to a bona fide offer, or pursuant to an
effective registration statement under the Securities Act or under Rule 144,
such Stockholder (the "Seller") shall first give a written notice to the
Stockholders (the "Seller's Notice") stating the Seller's desire to make such
sale, transfer or other disposition and the terms of the offer or of the
proposed sale pursuant to an effective registration statement under the
Securities Act or under Rule 144, as the case may be, including (if applicable)
the identity of the person making the offer (the "Bona Fide Purchaser"), the
amount and kind of securities proposed to be transferred ( the "Shares for
Sale") and the purchase price offered to the Seller by the Bona Fide Purchaser
or the terms of the proposed market sale, as the case may be. The Seller's
Notice shall constitute an irrevocable offer by the Seller to sell to the other
Stockholders such securities at the price and on the terms offered by the Bona
Fide Purchaser or the terms of the proposed market sale, as described herein.
(a) Any other Stockholders may elect (within 30 business days after the
date of receipt by such Stockholders of the Seller's Notice) to purchase any or
all of the Shares for Sale at the price and on the terms offered by the Bona
Fide Purchaser or the terms of the proposed market sale, as the case may be, in
cash by giving a notice to the Seller and the other Stockholders as to the
number of such securities, if any, it is electing to purchase (the "Stockholder
Notice"). If more than one Stockholder elects to purchase such Shares for Sale
they shall each have the right to purchase up to their pro rata share of the
Shares for Sale. The Stockholder Notice shall be deemed to be an irrevocable
commitment to purchase from the Seller in cash at the price and on the terms
offered by the Bona Fide Purchaser or at the price and on the terms of the
proposed market sale, as the case may be, the number of such securities that the
Stockholder specified in the Stockholder Notice, or such pro rate share of such
Shares for Sale, as the case may be. If a Stockholder elects to purchase any of
such securities, such Stockholder shall have 20 business days from the date the
Stockholder Notice has been sent to fund such purchase. A Stockholder's "pro
rata share" shall be determined by dividing the number of shares of Common Stock
owned by such Stockholder divided by the number of shares of Common Stock owned
by all Stockholders electing to make such purchases determined assuming
conversion of all convertible Equity Securities owned by all such persons.
(b) If the other Stockholders fail to elect to purchase all Equity
Securities specified in the Seller's Notice within the time periods specified
above, then the Seller (i) shall be under no obligation to sell any of such
Equity Securities to the Stockholders, unless the Seller so elects, and (ii)
may, within a period of sixty (60) days from the date of the Seller's Notice,
sell all (but not less than all) such Equity Securities to the Bona Fide
Purchaser or in accordance with the proposed market sale, as the case may be, in
cash at a price per share not less than the price and on the terms specified in
the Seller's Notice; provided, however, that such Bona Fide Purchaser shall, in
accordance with the provisions of Section 4.06 hereof, agree to execute and be
bound by the terms of this Agreement to the same extent and in the same manner
as the Seller of such shares.
Section 4.03 Tag Along Right. If any Stockholder proposes to transfer
shares of Equity Securities to any Person or Persons (the "Selling Stockholder")
(other than pursuant to an effective registration statement under the Securities
Act or Rule 144 and other than a disposition to an Affiliate), the Selling
Stockholder shall notify each other Stockholder (each a "Tag Along Stockholder")
in writing (the "Tag Along Notice") of such proposed transfer and its terms and
conditions. Within thirty (30) days of receipt of a Tag Along Notice, each Tag
Along Stockholder shall notify the Selling Stockholder if it elects to
participate in such transfer ("Tag Along Right") and shall state the number of
shares of Equity Securities that such Tag Along Stockholder desires to sell.
Upon electing to transfer, each Tag Along Stockholder shall be obligated to
sell, at the same price and on the same terms as the Selling Stockholder, the
number of shares stated in its notice to the Selling Stockholder. Each Tag Along
Stockholder may elect to sell such number of shares of Equity Securities as is
equal to the aggregate number of shares of Equity Securities to be transferred
in such transaction multiplied by a fraction, the numerator of which shall be
the aggregate number of shares of Equity Securities held by such Tag Along
Stockholder (calculated on a fully diluted basis) and the denominator of which
shall be the aggregate number of shares of Equity Securities held by all
transferors (calculated on a fully diluted basis). Each such Tag Along
Stockholder shall agree to enter into a purchase agreement in form and substance
approved by the Selling Stockholder to the extent such agreement shall contain
customary representations and warranties. If the sale is not consummated within
thirty (30) days following the delivery of the Tag Along Right, then each Tag
Along Stockholder shall no longer be obligated to sell its shares of Equity
Securities pursuant to such Tag Along Right but shall remain subject to the
provisions of this Section 4.03 with respect to any subsequent proposed transfer
described in this Section 4.03. In the event that the proposed transferee does
not purchase all the shares of Equity Securities that the Tag Along Stockholder
elects to sell pursuant to the foregoing on the same terms and conditions as the
securities purchased from the Selling Stockholder, then the Selling Stockholder
shall not be permitted to sell any securities to the proposed transferee. If no
Tag Along Right is delivered by the end of the 30 days referred to above and
provided that no Stockholder Notice is delivered in accordance with section 4.02
above, the Selling Stockholder shall have the right for a 30 (thirty) day period
thereafter to transfer the securities to the proposed transferee on the terms
and conditions stated in the Tag Along Notice and in accordance with the
provisions of this Section 4.03.
Section 4.04 Transfers to Affiliates. Any Stockholder may transfer Equity
Securities to an Affiliate subject to Section 4.05 but without complying with
Section 4.02 or 4.03.
Section 4.05 Affiliates Subject to Agreement. In the event of any transfer
of shares of Equity Securities by any Stockholder to any Affiliate of such
Stockholder or in the event of the acquisition of shares of Equity Securities by
any Affiliate of a Stockholder, such Affiliate shall hold such shares of Equity
Securities so acquired with all the rights conferred by, and subject to all of
the restrictions imposed by, this Agreement applicable to the transferor of such
shares of Equity Securities. Any such Affiliate shall, as a condition of the
consummation of such transfer or purchase, duly execute and deliver this
Agreement, become a Stockholder hereunder and amend Schedule I hereto
accordingly.
Section 4.06 Restrictive Legends. Each Stockholder shall use their best
efforts to cause the Company to cause each certificate representing Equity
Securities of which such Stockholder is the recorded or beneficial owner to bear
a legend in substantially the following form:
"The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and neither the securities
nor any interest therein may be offered, sold, transferred, pledged or
disposed of in the absence of such registration or an exemption under such
Act and the rules and regulations thereunder. The securities represented by
this certificate are subject to, and are transferable only upon compliance
with, the provisions of the Stockholders Agreement dated as of September
[__], 2004 among certain of its shareholders. A copy of the
above-referenced agreement has been filed with the United States Securities
and Exchange Commission."
Section 4.07 Expiration of Restrictions. The rights and obligations
restrictions set forth in Article III hereof shall terminate and be of no
further force and effect as of the Expiration Date.
ARTICLE V.
PREEMPTIVE RIGHTS
Section 5.01 Preemptive Right. Each Stockholder agrees not to vote its
shares of Equity Securities in favour of, and to cause any directors nominated
by them and subsequently elected to the Board of Directors of the Company
(subject to such directors' fiduciary duties) not to vote in favour of, any
issuance of Equity Securities by the Company (other than issuances with respect
to employee benefit plans or in connection with a Public Offering), unless each
Stockholder shall have the pre-emptive right to subscribe in cash on the
proposed terms for any amount up to its Preemptive Right Pro Rata Share of such
Equity Securities. The "Preemptive Right Pro Rata Share" of a Stockholder shall
be, at any given time, (i) such number of Equity Securities proposed to be
issued for cash multiplied by (ii) a fraction, the numerator of which is the
number of Equity Securities then held by such Stockholder assuming conversion of
all convertible Equity Securities then owned by such Stockholder and the
denominator of which is the total number of Equity Securities issued and
outstanding on a fully-diluted basis before giving effect to the new issuance.
ARTICLE VI.
CONDITION PRECEDENT
Section 6.01 Effective Date of this Agreement. This Agreement shall be of
no force and effect unless and until the EMDCD Option is exercised by a TDC
Entity. Notwithstanding the foregoing, the effectiveness of the rights and
obligations set forth in Article III hereof shall be conditioned upon the
Company and/or any of the Stockholders, as the case may be, obtaining the
following consents, approvals, waivers and/or authorizations:
(a) the consent, approval, waiver and/or authorization, as the case may be,
of (i) the Hungarian Competition Office in accordance with the requirements of
the Hungarian Act LVII of 1996 on the Prohibition of Unfair and Restrictive
Market Practices, or (ii) the European Commission in accordance with the
requirements of Council Regulation (EC) No. 139/2004 of 20 January 2004 (the "EC
Merger Regulations"), with respect to the acquisition of joint control of the
Company by the TDC Entities and the ▇▇▇▇▇▇▇ Entities; and
(b) the written consent, approval, waiver and/or authorization, as the case
may be, in accordance with the requirements of Section 22.14 of the Company's
(euro)130 million Senior Secured Debt Facility, dated April 11, 2000 (the
"Credit Facility"), from the Facility Agent (as defined in the Credit Facility),
acting on the instructions of the Majority Lenders (as defined in the Credit
Facility), with respect to the acquisition of joint control of the Company by
the TDC Entities and the ▇▇▇▇▇▇▇ Entities.
(c) Such written consent, approval, waiver and/or authorization from any
governmental regulatory authority as the TDC Representative may, in its sole
discretion, consider reasonably necessary, with respect to the acquisition of
joint control of the Company by the TDC Entities and the ▇▇▇▇▇▇▇ Entities.
Section 1.02 Commercially Reasonable Efforts. Each Stockholder agrees and
covenants to use their commercially reasonable efforts to obtain any consent
approval, waiver and/or authorization as any of the ▇▇▇▇▇▇▇ Representative
and/or the TDC Representative may consider reasonably necessary, including but
not limited to the consents, approvals, waivers and/or authorizations enumerated
in Section 6.01 hereto.
ARTICLE VII.
MISCELLANEOUS
Section 7.01 Injunctive Relief. It is acknowledged that it will be
impossible to measure in money the damages that would be suffered if the parties
fail to comply with certain of the obligations imposed on them by this
Agreement, including, without limitation, those obligations set forth in Article
III, Article IV and Article V and that in the event of any such failure, an
aggrieved Person will be irreparably damaged and will not have an adequate
remedy at law. Any such Person shall, therefore, be entitled to injunctive
relief and/or specific performance to enforce such obligations, and if any
action should be brought in equity to enforce any of such provisions of this
Agreement, none of the parties hereto shall raise the defense that there is an
adequate remedy at law.
Section 7.02 Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as any other party hereto reasonably may request in order to carry out
the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
Section 7.03 Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the laws
of the State of New York, without giving effect to the conflict of law
provisions thereof.
Section 7.04 Entire Agreement; Amendment; Waiver. This Agreement (i)
contains the entire agreement among the parties hereto with respect to the
subject matter hereof, (ii) supersedes all prior written agreements and
negotiations and oral understandings, if any, with respect thereto, (iii) may
not be amended or supplemented except by an instrument or counterparts thereof
in writing signed by each of the Stockholders. No waiver of any term or
provision shall be effective unless in writing signed by the party to be charged
and such waiver shall not be effective to any other provision of this Agreement.
Section 7.05 Binding Effect. This Agreement shall be binding on and inure
to the benefit of the parties hereto and, subject to the terms and provisions
hereof, their respective legal representatives, successors and permitted
assigns.
Section 7.06 Invalidity of Provision. The invalidity or unenforceability of
any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including that
provision, in any other jurisdiction.
Section 7.07 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, all of which taken together shall be deemed but one
and the same instrument.
Section 7.08 Notices. All notices and other communications provided for or
given or made hereunder shall be in writing (including delivery by facsimile
transmission) and, unless otherwise provided herein, shall be deemed to have
been given when received by the party to whom such notice is to be given at its
address set forth on Schedule II, or such other address for the party as shall
be specified by notice given pursuant hereto.
Section 7.09 Successors and Assigns. This Agreement shall inure to the
benefit of and shall be binding upon the parties hereto and their respective
successors and permitted assigns. Except for transfers of shares of Equity
Securities in compliance with the provisions of Article IV hereto, no
Stockholder shall have the right to assign its rights and obligations under this
Agreement without the consent of the other Stockholders.
Section 7.10 Termination. This Agreement shall terminate and be of no
further force and effect at such time as the ▇▇▇▇▇▇▇ Entities Collectively, or
the TDC Entities collectively, cease to hold Equity Securities representing at
least one (1) percent of the Equity Securities outstanding on a fully diluted
basis.
Section 7.11 Headings. The descriptive headings of the several paragraphs
of this Agreement are inserted for convenience only and do not constitute part
of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf of
each of the parties hereto as of the date first above written.
EMDCD LIMITED,
by ▇▇▇▇▇▇▇ Investment Management Limited, as agent
By: _________________________
Name:
Title:
▇▇▇▇▇▇▇ GLOBAL SPECIAL SITUATIONS FUND LIMITED,
by ▇▇▇▇▇▇▇ Investment Management Limited, as agent
By: _________________________
Name:
Title:
ASSET HOLDER PCC NO. 2 LIMITED RE: ▇▇▇▇▇▇▇ EMERGING ECONOMY PORTFOLIO,
by ▇▇▇▇▇▇▇ Investment Management Limited, as agent
By: _________________________
Name:
Title:
TDC A/S
By: _________________________
Name:
Title:
SCHEDULE I
PART A
STOCKHOLDERS' CURRENT OWNERSHIP OF SECURITIES OF THE COMPANY
Common Stock
Name: Shares
(1) ▇▇▇▇▇▇▇ Global Special Situations Fund 1,548,572
(2) Asset Holder PCC No. 2 Limited re: ▇▇▇▇▇▇▇ 280,000
Emerging Economy Portfolio
(3) TDC A/S 3,865,302
Warrants
Name: Shares:
(1) Asset Holder PCC Limited re: ▇▇▇▇▇▇▇ Emerging 2,100,000
Market Liquid Investment Portfolio
(2) ▇▇▇▇▇▇▇ Emerging Market Debt Fund 400,000
Options
N/A
SCHEDULE I
PART B
STOCKHOLDERS' OWNERSHIP OF SECURITIES OF THE COMPANY
AFTER THE EXERCISE OF THE CALL OPTIONS
Common Stock
Name: Shares:
---- ------
(1) ▇▇▇▇▇▇▇ Global Special Situations Fund 1,548,572
(2) Asset Holder PCC No. 2 Limited re: ▇▇▇▇▇▇▇ 441,200
Emerging Economy Portfolio
(3) EMDCD Limited 761,164
(4) TDC A/S 5,248,846
Warrants
Name: Shares:
---- ------
(1) Asset Holder PCC Limited re: ▇▇▇▇▇▇▇ Emerging 2,100,000
Market Liquid Investment Portfolio
(2) ▇▇▇▇▇▇▇ Emerging Market Debt Fund 400,000
Series A Convertible Preferred Stock
Name: Shares:
---- ------
(1) ▇▇▇▇▇▇▇ Global Special Situations Fund 12,000
(2) TDC A/S 18,000
SCHEDULE II
NOTICE ADDRESSES
▇▇▇▇▇▇▇ Global Special Situations Fund Limited
c/o Barings (Guernsey) Limited
▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Les Banques, St ▇▇▇▇▇ Port
Guernsey GY1 3DA
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Facsimile: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
EMDCD Limited
c/o The Northern Trust Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Relationship Contact: ▇▇▇ ▇▇▇▇▇▇
Tel no. ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Fax no. ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Asset Holder PCC No 2 Limited re ▇▇▇▇▇▇▇ Emerging Economy Portfolio
c/o Barings (Guernsey) Limited
▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Les Banques, St ▇▇▇▇▇ Port
Guernsey GY1 3DA
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Facsimile: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Investment Management Limited
▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇, General Counsel
Telephone: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
TDC A/S
▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel no. ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Fax no. ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇