IWC GROUP AGREEMENT
This AGREEMENT is entered into as of the 18th day of August, 1997 by
and among Pakistan Wireless Holdings Limited, a Mauritius company and wholly
owned subsidiary of International Wireless Communications, Inc. having its
principal offices at ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
▇.▇.▇. ("IWC"), and Vanguard Pakistan, Inc., a Delaware corporation ("Vanguard")
having its registered offices at ▇▇▇▇▇▇▇ Corporate Services, Inc., ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, U.S.A (this "Agreement").
W I T N E S S E T H :
WHEREAS, International Wireless Communications Pakistan Limited, a
Mauritius company with registered offices at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇ Street, Port Louis, Mauritius ("IWCPL"), IWC, Vanguard and South Asia
Wireless Communications (Mauritius) Limited, a Mauritius company having its
principal offices at ▇▇▇▇▇ ▇▇▇▇-▇▇, ▇▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ("SA
Wireless;" together with IWC and Vanguard, the "Shareholders") are parties to
that certain Amended and Restated Shareholders' Agreement (the "Shareholders'
Agreement") dated as of August 13, 1997, that provides, among other things, for
certain matters relating to the transfer of shares of IWCPL (the "IWCPL Shares")
and the management and operation of IWCPL; and
WHEREAS, in order to induce the Shareholders to enter into the
Shareholders' Agreement, IWC and Vanguard have agreed to enter into this
Agreement to provide for certain matters relating to the exercise of rights and
performance of duties of IWC and Vanguard under the Shareholders' Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
promises set forth in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged;
THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS.
1.1 APPRAISED FAIR MARKET VALUE: The amount determined pursuant to
Section 3.3 hereof.
1.2 BANKRUPTCY EVENT:
(a) An order, judgment, decree or injunction is entered against
International Wireless Communications Holdings, Inc., a Delaware corporation and
the parent corporation of IWC ("IWCH"), requiring the dissolution or split up of
IWCH or preventing IWCH from conducting all or any material part of its
business, and such order, judgment, decree or injunction remains undischarged or
unstayed for more than sixty (60) consecutive days;
(b) A proceeding is instituted in a court having jurisdiction in
the premises seeking a decree or order for relief in respect of IWCH in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or for the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
IWCH or for any substantial part of the property of IWCH, or for the winding-up
or liquidation of its affairs, and such proceeding remains undismissed or
unstayed and in effect for a period of sixty (60) consecutive days or such court
enters a decree or order granting the relief sought in such proceeding; or
(c) IWCH commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, consents
to the entry of an order for relief in an involuntary case under any such law,
or consents to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) of IWCH or for any substantial part of the property of IWCH, or makes
a general assignment for the benefit of creditors, or fails generally to pay its
debts as they become due, or takes any corporate action in furtherance of any of
the foregoing.
1.3 IWC GROUP: Vanguard and IWC, together as a single group.
1.4 PRO RATA SHARE: For IWC and Vanguard means a fraction the
numerator of which is the number of IWCPL Shares owned by IWC or Vanguard, as
the case may be, and the denominator of which is the total number of IWCPL
Shares owned by IWC and Vanguard.
1.5 CAPITALIZED TERMS: Capitalized terms not otherwise defined
herein shall have the meanings given to them in the Shareholders' Agreement.
2. EXERCISE OF RIGHTS AND DISCHARGE OF DUTIES OF IWC GROUP UNDER THE
SHAREHOLDERS' AGREEMENT.
2.1 RIGHT OF FIRST REFUSAL; RIGHT OF FIRST OFFER.
(a) IWC and Vanguard shall each have the right to purchase a Pro
Rata Share of the number of Securities that may be purchased by the IWC Group
upon exercise of the Right of First Refusal (including any Remaining Offered
Securities), provided that if IWC or Vanguard has not exercised its right to
purchase its Pro Rata Share of the Securities subject to the Right of First
Refusal in full within four (4) days before the expiration of the Notice Period
or two (2) days before the expiration of the Last Chance Period, as the case may
be, the unexercised portion of such right may be exercised by Vanguard or IWC,
as the case may be.
(b) IWC and Vanguard shall each have the right to purchase a Pro
Rata Share of the number of New Securities that may be purchased by the IWC
Group upon exercise of the Right of First Offer (including any New Securities
that IWC Group is entitled to purchase pursuant to Section 4(c) of the
Shareholders' Agreement), provided that if IWC or Vanguard has not exercised its
right to purchase its Pro Rata Share of the Securities subject to the Right of
First Offer in full within five (5) days before expiration of the twenty eight
(28) day periods specified
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in Sections 4(b) and (c) of the Shareholders' Agreement, the unexercised portion
of such right may be exercised by Vanguard or IWC, as the case may be.
2.2 IWC OPTION. The IWC Option may be exercised at any time during
the IWC Option Period by IWC, provided that
(a) if IWC does not plan to exercise the IWC Option, it shall
promptly notify Vanguard of its decision and Vanguard may exercise the IWC
Option in accordance with the Shareholders' Agreement; and
(b) if IWC does not exercise the IWC Option by December 15,
1998, Vanguard may elect to exercise the IWC Option by notifying IWC at least
five (5) days before the exercise date.
2.3 SECOND OPTION. Either IWC or Vanguard may exercise the Second
Option. IWC may purchase any or all of the Second Option Shares, provided that
if IWC does not notify Vanguard that it plans to purchase all of the Second
Option Shares at least two (2) Business Days before the purchase date, Vanguard
may purchase the Second Option Shares not purchased by IWC.
2.4 TRANSFER OF CONSORTIUM INTEREST TO SA WIRELESS. IWC and Vanguard
shall each transfer to SA Wireless a Pro Rata Share of any equity interest in a
consortium required to be transferred to SA Wireless pursuant to Section 6.8 of
the Shareholders' Agreement.
2.5 CAPITAL CONTRIBUTIONS. IWC and Vanguard shall each contribute or
make a Pro Rata Share of any capital contributions or shareholder loans to IWCPL
required pursuant to Sections 8.1(a) or (b) of the Shareholders' Agreement,
provided that if either IWC or Vanguard does not intend to make its Pro Rata
Share of such capital contributions or loans, it shall so notify the other party
within four (4) Business Days before the expiration of the twenty (20) Business
Day period referred to in Section 8.2(a) of the Shareholders' Agreement, then
Vanguard or IWC, respectively, may
(a) in the case of a capital contribution, contribute the
portion of the capital contribution not contributed by the other party and
purchase any Shares offered by IWCPL in exchange therefor; and
(b) in the case of a shareholder loan, make the portion of the
shareholder loan not made by the other party and purchase the note or other
evidence of indebtedness offered by IWCPL in exchange therefor.
2.6 OMNIBUS. Without limiting the foregoing, either party hereto may
take any appropriate or necessary action to prevent a breach of the
Shareholders' Agreement by the IWC Group or the other party.
3. BANKRUPTCY OPTION.
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3.1 BANKRUPTCY NOTICE. If at any time there occurs a Bankruptcy
Event, then IWC shall give Vanguard written notice of the Bankruptcy Event (the
"Bankruptcy Notice"), which Bankruptcy Notice shall include a summary of the
details of the Bankruptcy Event.
3.2 VANGUARD'S OPTION.
(a) Vanguard shall have an option for a period of thirty (30)
days from receipt of the Bankruptcy Notice to elect to purchase the IWCPL
Shares held by IWC (i) in the event that any Notes (as such term is defined
in the Loan Agreement dated August 18, 1997 between IWC and the Lenders
specified therein) remain outstanding, at a price equal to the greater of (A)
the outstanding principal amount of and unpaid interest on the Notes (the
"Note Price") and (B) the Appraised Fair Market Value, or (ii) in the event
that the Notes no longer remain outstanding, at a price equal to the
Appraised Fair Market Value. Vanguard may exercise such purchase option and,
thereby, purchase all the IWCPL Shares by notifying IWC in writing before
expiration of such thirty (30) day period as to whether it wishes to purchase
the IWCPL Shares for the Note Price or Appraised Fair Market Value, as the
case may be. If Vanguard gives IWC notice (the "Purchase Notice") that it
desires to purchase such shares, then payment for the IWCPL Shares shall be
by check or wire transfer, against delivery of the IWCPL Shares to be
purchased at a place agreed upon between the parties and at the time of the
scheduled closing therefor, which shall be no later than sixty (60) days
after Vanguard's receipt of the Bankruptcy Notice; or
(b) In the event Vanguard does not elect to exercise the
option granted in Section 3.2(a)(i) above, it shall have a right of first
offer to purchase all or any portion of the IWCPL Shares held by IWC (the
"Vanguard Right of First Offer") that IWC may from time to time propose to
sell, and the provisions of this Section 3.2(b) shall apply to such sales.
(i) In the event that IWC proposes to undertake a sale of
IWCPL Shares, IWC shall give written notice (the "IWC Notice") of its
intention to so sell such IWCPL Shares to Vanguard. The IWC Notice shall
include number of such IWCPL Shares that are proposed to be sold.
(ii) Vanguard shall have thirty (30) days after the
receipt of the IWC Notice to offer to purchase all (but not less than all) of
such IWCPL Shares by giving written notice to IWC and stating therein the
price and other general terms upon which Vanguard offers to purchase such
IWCPL Shares (the "Vanguard Notice").
(iii) If Vanguard waives or fails to exercise the
Vanguard Right of First Offer set forth in Sections 3.2(b)(i) and (ii) within
the above-mentioned time periods, then IWC shall have ninety (90) days
thereafter to sell all (but not less than all) of the IWCPL Shares specified
in the IWC Notice upon any terms and conditions. If Vanguard delivers a
Vanguard Notice with respect to all (but not less than all) of the IWCPL
Shares specified in the IWC Notice, then IWC shall have ninety (90) days
thereafter to sell all (but not less than all) of such IWCPL Shares at a
price and upon general terms no more favorable to the any prospective
acquirer (each a "Proposed Acquirer") than those specified in the Vanguard
Notice. In the event IWC does not sell the IWCPL Shares within either such
ninety (90)-day period, IWC shall not thereafter sell such IWCPL Shares
without first offering such IWCPL Shares to Vanguard in accordance with this
Section 3.2(b).
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(iv) The exercise or non-exercise of the Vanguard Right of
First Offer hereunder with respect to a sale of IWCPL Shares shall not affect
the Vanguard Right of First Offer with respect to subsequent sales of IWCPL
Shares.
(v) Any Proposed Acquirer to whom IWCPL Shares are sold
in accordance with this Section 3.2 shall become a party to and shall be
bound by the restrictions on transfer and the other restrictions and
obligations set forth in this Agreement (other than those set forth in this
Section 3, which shall not apply to any Proposed Acquirer) to the same extent
and with the same force and effect as if such person were an original
signatory hereto. Each Proposed Acquirer shall, as a condition to purchasing
such IWCPL Shares, execute a Deed of Adherence substantially in the form
attached as an exhibit to the Shareholders' Agreement upon or before the
consummation of the sale of such IWCPL Shares.
3.3 VALUATION OF IWCPL SHARES. Within ten (10) business days of
the date the Purchase Notice is received by IWC, an appraiser (the
"Appraiser"), which shall be an internationally recognized investment banking
firm that has not had a substantial relationship with any of the parties
hereto or any of their respective Affiliates in the immediately preceding
five (5) years, shall be selected in the following manner to determine the
fair market value of the IWCPL Shares. Vanguard, on the one hand, and IWC,
on the other hand, shall each select an investment banking firm and the
investment banking firms so selected shall designate the Appraiser; provided
that if either Vanguard or IWC shall fail to select an investment banking
firm within such ten (10) business day period, then the appraisal shall be
conducted by the investment banking firm that is so selected. The Appraiser
shall be instructed to make its determination and to deliver its report
within twenty (20) business days of its appointment. The fees and expenses
of the Appraiser shall be borne by Vanguard. The Appraiser shall act as an
expert and not an arbitrator, and the determination of the Appraiser shall be
final and binding on all parties.
4. RECIPROCAL RIGHTS OF CO-SALE.
(a) In the event that either Vanguard or IWC elects to
transfer or sell any portion of IWCPL Shares held by such entity, then the
party electing to sell or transfer such shares (the "Selling Holder") shall
send written notice (the "Transfer Notice") to the non-selling party (the
"Holder"). The Transfer Notice shall include (i) the number of IWCPL Shares
to be transferred ("Offered Shares"), (ii) the identity of the prospective
transferee(s) and (iii) the consideration and the material terms and
conditions upon which the proposed transfer is to be made. Within thirty
(30) days after receipt of the Transfer Notice, the Holder shall have the
right to participate in such sale of IWCPL Shares on the same terms and
conditions as specified in the Transfer Notice. Such Holder's notice to the
Selling Holder shall indicate the number of IWCPL Shares the Holder wishes to
sell under its right to participate.
(b) The Holder may sell all or any part of that number of IWCPL
Shares equal to the product obtained by multiplying (i) the aggregate number of
IWCPL Shares covered by the Transfer Notice by (ii) a fraction, the numerator of
which is the number of IWCPL Shares (including any such shares issuable upon
conversion or exercise or convertible or exercisable securities) owned by the
Holder on the date of the Transfer Notice and the
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denominator of which is the total number of IWCPL Shares owned by the Selling
Holder and the Holder on the date of the Transfer Notice.
(c) The Holder shall effect its participation in the sale by
promptly delivering to the Selling Holder for transfer to the prospective
purchaser one or more certificates, properly endorsed for transfer, which
represent:
(i) the type and number of IWCPL Shares which such Holder
elects to sell; or
(ii) that number of convertible securities which are at such
time convertible into the number of IWCPL Shares which such Holder elects to
sell; provided, however, that if the prospective third-party purchaser objects
to the delivery of such convertible securities in lieu of IWCPL Shares, such
Holder shall convert such convertible securities into IWCPL Shares and deliver
IWCPL Shares as provided in this Section 4.
(d) The stock certificate or certificates that the Holder
delivers to the Selling Holder pursuant to Section 4(c) shall be transferred to
the prospective purchaser in consummation of the sale of the IWCPL Shares
pursuant to the terms and conditions specified in the Transfer Notice, and the
Selling Holder shall concurrently therewith remit to the Holder that portion of
the sale proceeds to which the Holder is entitled by reason of its participation
in such sale. To the extent that any prospective purchaser or purchasers
prohibits such assignment or otherwise refuses to purchase shares or other
securities from a Holder exercising its rights of co-sale hereunder, the Selling
Holder shall not sell to such prospective purchaser or purchasers any IWCPL
Shares unless and until, simultaneously with such sale, the Selling Holder shall
purchase such shares or other securities from the Holder for the same
consideration and on the same terms and conditions as the proposed transfer
described in the Transfer Notice.
(e) To the extent that the Holder has not exercised its rights
to participate in the sale of the IWCPL Shares within the time periods specified
in this Section 4, the Selling Holder shall have a period of ninety (90) days
from the expiration of such rights in which to sell the IWCPL Shares specified
in the Transfer Notice upon terms and conditions (including the purchase price)
no more favorable than those specified in the Transfer Notice to the third-party
transferee(s) identified in the Transfer Notice. The third-party transferee(s)
shall acquire the IWCPL Shares free and clear of subsequent co-sale rights under
this Agreement. In the event Selling Holder does not consummate the sale or
disposition of the IWCPL Shares specified in the Transfer Notice within the
ninety (90) day period from the expiration of these rights, the Holder's co-sale
rights shall continue to be applicable to any subsequent disposition of the
IWCPL Shares by the Selling Holder until such right lapses in accordance with
the terms of this Agreement. Furthermore, the exercise or non-exercise of the
rights of the Holder under this Section 4 to participate in sales of IWCPL
Shares by the Selling Holder shall not adversely affect their rights to
subsequently participate in sales of IWCPL Shares by the Selling Holder.
(f) Notwithstanding the provisions of this Section 4, either
Vanguard or IWC may sell or otherwise assign, with or without consideration,
IWCPL Shares to an
6
Affiliate of it, provided that each such transferee or assignee, prior to the
completion of the sale, transfer, or assignment shall have executed documents
assuming the obligations of the party transferring or assigning such IWCPL
Shares under this Agreement with respect to the transferred securities.
(g) In the event the Selling Holder should sell any IWCPL Shares
in contravention of the co-sale rights of the Holder under this Section 4 (a
"Prohibited Transfer"), the Holder, in addition to such other remedies as may be
available at law, in equity or hereunder, shall have the put option provided
below, and the Selling Holder shall be bound by the applicable provisions of
such option.
(h) In the event of a Prohibited Transfer, the Holder shall have
the right to sell to the Selling Holder the number of IWCPL Shares equal to the
number of shares such Holder would have been entitled to transfer to the
third-party transferee(s) under this Section 4 had the Prohibited Transfer been
effected pursuant to and in compliance with the terms hereof. Such sale shall
be made on the following terms and conditions:
(i) The price per share at which the shares are to be sold
to the Selling Holder shall be equal to the price per share paid by the
third-party transferee(s) to the Selling Holder in the Prohibited Transfer. The
Selling Holder shall also reimburse the Holder for any and all fees and expense,
including legal fees and expenses, incurred pursuant to the exercise or the
attempted exercise of the Holder's rights under this Section 4.
(ii) Within ninety (90) days after the later of the dates on
which the Holder (A) received notice of the Prohibited Transfer or (B) otherwise
become aware of the Prohibited Transfer, the Holder shall, if exercising the
option created hereby, deliver to the Selling Holder the certificate or
certificates representing shares to be sold, each certificate to be properly
endorsed for transfer.
(iii) The Selling Holder shall, upon receipt of the
certificate or certificates for the shares to be sold by the Holder, pursuant to
this Section 4, pay the aggregate purchase price therefor and the amount of
reimbursable fees and expenses, as specified in subparagraph 4(h)(i), in cash or
by other means acceptable to the Holder.
(iv) Notwithstanding the foregoing, any attempt by the
Selling Holder to transfer IWCPL Shares in violation of this Section 4 shall be
void.
(i) The co-sale rights of IWC and Vanguard under this Section 4
shall not apply to Transfers to Affiliates permitted by Section 3.3 of the
Shareholders' Agreement but shall be subject to Section 3.4 of the Shareholders'
Agreement.
5. ASSIGNMENTS AND TRANSFERS; NO THIRD PARTY BENEFICIARIES. This
Agreement and the rights and obligations of the parties hereunder shall inure to
the benefit of, and be binding upon, their respective successors, assigns and
legal representatives, but shall not otherwise be for the benefit of any third
party. The rights of the parties hereunder are only
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assignable (i) to an Affiliate of such Holder or (ii) to an assignee or
transferee who acquires all of the IWCPL Shares owned by either Vanguard or IWC,
as the case may be.
6. LEGEND. Each existing or replacement certificate for IWCPL
Shares now owned or hereafter acquired by Vanguard and IWC, or their respective
permitted assigns, shall bear the following legend upon its face:
"THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE
TERMS AND CONDITIONS OF A CERTAIN AGREEMENT BY AND BETWEEN THE
SHAREHOLDER, THE COMPANY AND CERTAIN HOLDERS OF SHARES OF THE
COMPANY. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN
REQUEST TO THE SECRETARY OF THE COMPANY."
7. EFFECT OF CHANGE IN IWCPL'S CAPITAL STRUCTURE. Appropriate
adjustments shall be made in the number and class of shares in the event of a
stock dividend, stock split, reverse stock split, combination, reclassification
or like change in the capital structure of IWCPL.
8. VOTING TRUST. Vanguard agrees to enter into the Voting Trust
Agreement attached hereto as EXHIBIT A upon the closing of the sale of IWCPL
Shares to Vanguard and IWC.
9. REIMBURSEMENT OF EXPENSES. Vanguard and IWC each hereby agree to
pay their respective pro-rata share of all out-of-pocket expenses incurred by
IWC (or an Affiliate thereof), Vanguard and the Asian Infrastructure Fund
("AIF") in connection with the purchase of ordinary shares of Pakistan Mobile
Communications (Pvt.) Limited ("PMCL") by IWCPL and the purchase of IWCPL Shares
by IWC, Vanguard and AIF, including legal fees and expenses, accounting fees,
consulting fees, finders fees, due diligence expenses and any similar expenses.
10. NOTICES. Any notice required or permitted by any provision of
this Agreement shall be given in writing and shall be delivered personally, by
confirmed facsimile transmission, by courier, or by registered or certified
mail, postage prepaid, addressed (i) in the case of any original party to this
Agreement at the address of such party as set forth in the signature pages
hereto or such other address for such party as shall be designated in writing
from time to time by such party; and, (ii) in the case of any permitted
transferee of a party to this Agreement or its transferee, to such transferee at
its address as designated in writing by such transferee to each of the parties
hereto from time to time. Notices that are mailed shall be deemed received five
(5) days after deposit in the mail. Notices sent by courier or overnight
delivery shall be deemed received two (2) days after they have been so sent.
Notices sent by facsimile shall be deemed received upon confirmation of
transmission.
11. FURTHER INSTRUMENTS AND ACTIONS. The parties agree to execute
such further instruments and to take such further action as may reasonably be
necessary to carry out the intent
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of this Agreement. Each party hereto agrees to cooperate affirmatively with the
other parties hereto, to the extent reasonably requested by such parties, to
enforce rights and obligations pursuant hereto.
12. TERM. This Agreement shall terminate upon the earlier of the
date that either IWC (or its successors, assigns or legal representatives) or
Vanguard (or its successors, assigns or legal representatives ) ceases to own
IWCPL Shares.
13. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter hereof,
supersedes all other agreements between or among any of the parties with respect
to the subject matter hereof and cannot be altered or otherwise amended except
pursuant to an instrument in writing signed by each of the parties to this
Agreement.
14. AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of Vanguard and IWC. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon the parties hereto and their respective successors and assigns.
15. SEPARABILITY. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
16. ATTORNEY'S FEES. In the event that any dispute among the parties
to this Agreement should result in litigation, the prevailing party in such
dispute shall be entitled to recover from the losing party all fees, costs and
expenses of enforcing any right of such prevailing party under or with respect
to this Agreement, including without limitation, such reasonable fees and
expenses of attorneys and accountants, which shall include, without limitation,
all fees, costs and expenses of appeals.
17. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
18. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of England and Wales.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
VANGUARD PAKISTAN, INC.
By: /s/ Van ▇. ▇▇▇▇▇▇▇
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Name: Van ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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Address:
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PAKISTAN WIRELESS HOLDINGS LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
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Address:
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Acknowledged by:
INTERNATIONAL WIRELESS
COMMUNICATIONS PAKISTAN LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
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Title: Director
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Address:
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EXHIBIT A
Voting Trust Agreement
S-1
VOTING TRUST AGREEMENT
VOTING TRUST AGREEMENT (the "Agreement"), dated as of August 13, 1997,
by and between Vanguard Pakistan, Inc., a Delaware corporation, having its
registered offices at ▇▇▇▇▇▇▇ Corporate Services, Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇.▇.▇. ("Vanguard") and the Vice
President of Pakistan Wireless Holdings Limited, having its principal offices
at ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ U.S.A. ("IWC") as
Trustee (the "Trustee").
RECITALS:
WHEREAS, Vanguard is a holder of ordinary shares, nominal value US$1.00
each and redeemable preference shares, nominal value US$1.00 each
(collectively, the "IWCPL Shares"), of International Wireless Communications
Pakistan Limited, a Mauritius company having its registered offices at ▇.▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Street, Port Louis, Mauritius (the
"Company");
WHEREAS, the Company, IWC, Vanguard and SA Wireless are parties to that
certain Amended and Restated Shareholders' Agreement dated as of August __,
1997 (the "Shareholders' Agreement"), providing for certain matters relating
to the transfer of the IWCPL Shares and the management and operations of the
Company.
WHEREAS, IWC and Vanguard are parties to that certain IWC Group
Agreement dated as of August __, 1997 (the "IWC Group Agreement"), providing
for certain matters relating to the exercise of rights and performance of
duties of IWC and Vanguard under the Shareholders' Agreement; and
WHEREAS, to induce certain parties to enter into the Shareholders'
Agreement, Vanguard desires to enter into this Agreement; and
WHEREAS, the Trustee is willing to act as voting trustee pursuant to the
terms of this Voting Trust Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and certain
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. VOTING TRUST CERTIFICATES.
(a) Upon execution of this Agreement, Vanguard shall deliver to
the Trustee all certificates held by Vanguard representing the Shares (as
defined herein), and the Trustee shall issue and deliver to Vanguard, a
voting trust certificate in substantially the form attached hereto as
SCHEDULE I (a "Voting Trust Certificate"), for the number of Shares owned by
Vanguard and transferred to the Trustee pursuant to the terms hereof. The
Trustee shall cause such Shares to be transferred to the Trustee on the
Company's books. Any Shares acquired by
Vanguard after the date hereof shall be issued to the Trustee, who shall,
within five (5) Business Days, issue and deliver to Vanguard, a Voting Trust
Certificate for the number of additional Shares so acquired.
(b) All Voting Trust Certificates will be registered in a register
book which will be maintained by the Trustee for that purpose (the "Trust
Register"). The Trustee may treat the registered holder of each Voting Trust
Certificate as the absolute owner and holder of the Shares evidenced thereby
and of all the other rights and interests represented thereby. All transfers
of Shares will be recorded by the Trustee in the Trust Register.
(c) The Trustee shall hold the Shares in trust subject to the
terms of this Agreement. The Trustee shall distribute all dividends and other
distributions as may be declared on such Shares to the registered holder of
such Shares which shall not be distributed but shall remain subject to the
terms of this Agreement).
(d) If a Voting Trust Certificate is lost, stolen, mutilated or
destroyed the Trustee will issue a duplicate Voting Trust Certificate upon
receipt by the Trustee of evidence satisfactory to it of the loss, theft,
mutilation or destruction. The Trustee will also keep correct books of
account of all business transactions with respect to the Voting Trust, which
books, including the Trust Register, may be inspected by Vanguard, its agents
or personal representatives at any time during normal business hours.
2. TRUSTEE'S POWERS AND DUTIES. During the term of this Agreement, the
Trustee shall have the exclusive right to vote all Shares Beneficially Owned
(as defined herein) by Vanguard on all matters as to which Vanguard is
entitled to vote at a meeting of the shareholders of the Company, or
otherwise, or to which Vanguard is entitled to express consent or dissent to
corporate action in writing without a meeting. The Trustee shall give
Vanguard not less than five (5) Business Days prior written notice of such
vote or right to express consent or dissent. The Trustee shall exercise such
voting rights as follows:
(a) The Trustee shall vote at a regular or special meeting of
shareholders (or by written consent) the Shares:
(i) as directed in writing by the Board of Directors of IWC;
or
(ii) if not so directed in writing, the Trustee shall not
vote such shares and shares shall not be counted for the purpose of
determining whether a quorum is present or any percentage of shares of the
Company's capital stock is achieved.
The Trustee shall have no authority to sell, encumber or otherwise dispose of
any Shares. The Trustee shall have no voting or other rights with respect to
any shares of capital stock Beneficially Owned as of the date hereof by
Vanguard other than Shares.
3. EFFECTIVE TRANSFER. Any transferee of Shares must become a party to
this Agreement and any purported transfer of Shares to a person or entity
that has not become a party
hereto shall be null and void. Any transferee of any Shares shall have all
the rights and shall be subject to all limitations of the transferor under
the Voting Trust Certificate and this Agreement.
4. NO WITHDRAWAL. Vanguard may not withdraw from this Agreement prior
to termination of this Agreement pursuant to Section 7 hereof.
5. REPLACEMENT OR REMOVAL OF TRUSTEE. In the event of the Trustee's
dissolution, resignation, removal or inability to act as trustee, IWC shall
elect a successor Trustee within 15 days after receiving written notice of
such dissolution, resignation, removal or inability to act as trustee. The
Trustee may be removed by Vanguard in the event of any material violation by
the Trustee of the terms of this Agreement and the Trustee shall become
disqualified from acting as trustee hereunder as soon as a successor shall
have been selected in the manner provided by this paragraph. Notwithstanding
any change in the Trustee, the certificates for Shares standing in the name
of the Trustee may be endorsed and transferred to any successor Trustee
without the further action of Vanguard or any predecessor Trustee with the
same effect as if endorsed and transferred by the Trustee who has ceased to
act.
6. TRUSTEE'S LIABILITY AND INDEMNITY. The Trustee shall not be liable
for any error of judgment or mistake of fact or law, or for any act or
omission undertaken in good faith in connection with the Trustee's powers and
duties under this Agreement, except for the Trustee's own willful misconduct
or gross negligence. The Trustee is authorized and empowered to construe this
Agreement and its reasonable construction made in good faith shall be
conclusive and binding upon Vanguard. The Trustee shall not be liable for
acting on any legal advice or on any notice, request or instruction or other
document believed by the Trustee to be genuine and to have been signed by the
proper party or parties.
7. TERM. This Agreement shall terminate and be of no further force or
effect upon the occurrence of any of the following events: (a) either IWC or
Vanguard is no longer the Beneficial Owner of any Shares or (b) the parties
hereto agree to terminate this Agreement.
As soon as practicable after the termination of this Agreement, the
Trustee shall deliver to Vanguard share certificates or securities
representing the number of Shares or other securities in respect of which
Voting Trust Certificates are then outstanding, upon the surrender of such
Voting Trust Certificates properly endorsed and upon payment by the persons
entitled to receive such share certificates or other securities of a sum
sufficient to cover any tax or governmental charge in respect of the transfer
or delivery of such certificates. If Vanguard cannot be located or fails or
refuses to surrender Voting Trust Certificates in exchange for Shares or
other securities as aforesaid, the Trustee shall deliver said Shares or other
securities to the Company or to any bank or trust company in California for
the benefit of the Person or Persons entitled thereto. Upon any such
delivery, the Trustee shall be fully acquitted and discharged with respect to
said Shares or other securities.
8. DEFINED TERMS. As used in this Agreement, the following terms have
the respective meanings set forth below:
AFFILIATE: shall mean a Person (other than a subsidiary) which directly
or indirectly through one or more intermediaries controls, or is controlled
by, or is under common control with, a Person. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
BENEFICIAL OWNER: shall have the meaning set forth in Rule 13d-3(a) and
(b) of the Rules and Regulations to the Securities Exchange Act of 1934, as
amended; and Beneficially Owned shall have a correlative meaning.
COMPANY: shall have the meaning set forth in the Recitals; provided,
however that if Vanguard and IWC become shareholders in PMCL pursuant to the
terms of the Shareholders' Agreement, all references to "Company" in
paragraphs 1, 2 and 7 of this Agreement shall mean PMCL.
PERSON: shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
SHARES: shall include (1) all IWCPL Shares currently held or hereafter
obtained by Vanguard; (2) any other voting securities of the Company (a)
issued by the Company or (b) distributed with respect to any security then
subject to this Agreement; and (3) in the event that Vanguard and IWC become
shareholders of PMCL pursuant to the terms of the Shareholders' Agreement,
all shares in PMCL held or thereafter obtained by Vanguard.
Capitalized terms not otherwise defined herein shall have the meanings
given to them in the Shareholders' Agreement.
9. REMEDIES. The parties agree and acknowledge that money damages may
not be an adequate remedy for breach of the provisions of this Agreement and
that any party hereto shall be entitled, in its sole discretion, to apply to
any court of competent jurisdiction for specific performance, injunctive
relief or such other equitable remedy or remedies as the court may in its
discretion order to enforce or prevent any violations of the provisions of
this Agreement, in addition to its remedies at law. In respect of any such
equitable remedy so sought, the parties hereby waive the requirement of the
posting of any bond or the necessity to show irreparable injury on the part
of the party seeking such relief.
10. NOTICES. Any notice required or permitted by this Agreement shall
be in writing and shall be sent prepaid registered or certified mail, return
receipt requested, addressed to the other party at the address shown below or
at such other address for which such party gives notice hereunder. Such
notice shall be deemed to have been given three (3) days after deposit in the
mail.
11. MODIFICATION, AMENDMENT, WAIVER. Any term hereof may be amended
and the observance of any term hereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the parties. Any amendment or waiver so effected shall be
binding upon the parties hereto. The failure of any
party at any time 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
rights of the party thereafter to enforce the provisions of this Agreement in
accordance with its terms.
12. COMPLETE AGREEMENT. This Agreement and the Voting Trust
Certificates embody the complete agreement and understanding between and
among the parties hereto with respect to the subject matter hereof, and
supersede and preempt any prior understandings, agreements or representations
by or among the parties hereto, written or oral, which may have related to
the subject matter hereof.
13. SUCCESSORS AND ASSIGNS. This Agreement will bind and inure to the
benefit of and be enforceable by the parties and their respective permitted
transferees, successors and assigns.
14. LEGENDS. Each certificate evidencing Shares shall bear a legend in
substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
ON VOTING AND TRANSFER AS SET FORTH IN THE VOTING TRUST AGREEMENT, DATED
AS OF AUGUST __, 1997, A COPY OF WHICH IS AVAILABLE FROM THE COMPANY AND
ANY SUCCESSOR THERETO.
15. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which will be an original and all of which taken
together will constitute one and the same Agreement.
16. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of England and Wales.
17. SEVERABILITY. If any one or more of the provisions of this
Agreement, as applied to any part or any circumstance, shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions of this Agreement, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein. If any one or more of the provisions of this Agreement shall, for any
reason, be held to be unenforceable as to duration, scope, activity or
subject, such provisions shall be construed by limiting and reducing it so as
to make such provision enforceable to the extent compatible with the then
existing applicable law.
18. TRUSTEE'S EXPENSES. The Trustee shall be reimbursed by IWC for all
reasonable out-of-pocket expenses incurred pursuant to this Agreement.
19. NATURE OF RELATIONSHIP. The Trust created by this Agreement is not
intended to be, shall not be deemed to be and shall not be treated as a
general partnership, limited partnership, joint venture, corporation joint
stock company or association. The relationship of
Vanguard to the Trustee shall be solely that of beneficiary of the Trust
created by this Agreement, and its rights and obligations shall be limited to
those set forth in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TRUSTEE:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
Vice President, Pakistan Wireless Holdings Limited
Address: c/o International Wireless Communications, Inc.
▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ 94402 U.S.A.
VANGUARD PAKISTAN, INC.
By: /s/ VAN ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: Van ▇. ▇▇▇▇▇▇▇
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Title: VP
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Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
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▇▇▇▇▇▇▇▇▇▇, ▇▇
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Acknowledged by:
INTERNATIONAL WIRELESS COMMUNICATIONS
PAKISTAN LIMITED
By: /s/ ▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇. ▇▇▇▇▇
-------------------------------
Title: Director
------------------------------
Address: ▇▇▇ ▇▇▇ ▇▇▇▇ PACIFIC VIEW
------------------------------------
▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
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PAKISTAN WIRELESS HOLDINGS LIMITED
By: R ▇▇▇▇▇
---------------------------------
Name: ▇. ▇▇▇▇▇
-------------------------------
Title: V. President
------------------------------
Address: ▇▇▇ ▇▇▇ ▇▇▇▇ PACIFIC VIEW
------------------------------------
▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
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SCHEDULE I
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
ON VOTING AND TRANSFER AS SET FORTH IN THE VOTING TRUST AGREEMENT,
DATED AS OF AUGUST __, 1997, A COPY OF WHICH IS AVAILABLE FROM THE
COMPANY AND ANY SUCCESSOR THERETO.
This certifies that Vanguard Pakistan, Inc. ("Vanguard") has deposited
or has caused to be deposited __________ ordinary shares, nominal value
US$1.00 each and _________ redeemable preferred shares, nominal value
US$1.00 each, of International Wireless Communications Pakistan Limited, a
Mauritius company (the "Company"), under a Voting Trust Agreement, dated as
of August __, 1997 (the "Voting Trust Agreement"), between the Vice President
of Pakistan Wireless Holdings Limited, a Mauritius company as Trustee (the
"Trustee") and Vanguard. The Trustee shall possess and be entitled to the
exclusive right to vote such shares upon the terms and subject to the
conditions stated in the Voting Trust Agreement.
This Voting Trust Certificate shall be transferable only on the records
of the Trustee upon surrender hereof by the registered holder in person or by
attorney duly authorized and, until so transferred, the Trustee may treat the
registered holder as the owner of this Voting Trust Certificate for all
purposes whatsoever, unaffected by any notice to the contrary. As a condition
precedent to the making of any transfer of this Voting Trust Certificate, the
Trustee may require the payment of a sum sufficient to cover the amount of
any taxes or other governmental charges incident thereto.
This Voting Trust Certificate is issued pursuant to, and the rights of
the holder hereof are subject to and limited by the terms and conditions of,
the Voting Trust Agreement. The holder of this Voting Trust Certificate, by
the acceptance hereof, assents to and agrees to be bound by all the terms and
conditions of the Voting Trust Agreement. Copies of the Voting Trust
Agreement are on file at the principal office of the Company and at the
office of the Trustee.
Certificates for the number of shares in respect of which this Voting
Trust Certificate was issued, or the net proceeds in cash or property of said
number of shares at the time of surrender hereof, all as provided in the
Voting Trust Agreement, shall be deliverable hereunder upon the termination
of the Voting Trust Agreement.
Dated: _______________,_____
__________________________________
Vice President of
Pakistan Wireless Holdings Limited,
as Trustee