EXHIBIT C
DATED September 20 2005
(1) ALFA TELECOM TURKEY LIMITED
(2) CUKUROVA FINANCE INTERNATIONAL LIMITED
(3) CUKUROVA TELECOM HOLDINGS LIMITED
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SHAREHOLDERS' AGREEMENT
in respect of
Cukurova Telecom Holdings Limited
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TABLE OF CONTENTS
CLAUSE PAGE
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1. INTERPRETATION......................................................1
2. MINORITY INTERESTS AND DEBTS........................................6
3. DIRECTORS AND MANAGEMENT............................................7
4. RESERVED MATTERS....................................................8
5. CTH GROUP STRUCTURE ................................................8
6. PUT AND CALL OPTION.................................................9
7. MEETINGS OF THE MEMBERS............................................10
8. DEADLOCK...........................................................10
9. FINANCIAL MATTERS..................................................11
10. INFORMATION AND REPORTING..........................................12
11. CONFIDENTIALITY....................................................13
12. NON-COMPETITION....................................................15
13. TRANSFER OF SHARES.................................................15
14. BUY-OUT EVENTS.....................................................17
15. DEFAULT............................................................18
16. TRANSFER TERMS.....................................................19
17. SECURITY OVER CTH SHARES...........................................20
18. DURATION...........................................................20
19. FURTHER ASSURANCES.................................................20
20. NON-ASSIGNMENT.....................................................21
21. WAIVER OF RIGHTS...................................................21
22. AMENDMENTS.........................................................21
23. INVALIDITY.........................................................21
24. NO PARTNERSHIP OR AGENCY...........................................22
25. ANNOUNCEMENTS......................................................22
26. COSTS..............................................................22
27. ENTIRE AGREEMENT...................................................22
28. CONFLICT WITH ARTICLES.............................................22
29. NOTICES............................................................23
30. ARBITRATION AND GOVERNING LAW......................................24
31. PROCESS AGENTS.....................................................24
32. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999.......................25
33. COUNTERPARTS.......................................................25
34. EFFECTIVENESS .....................................................25
SCHEDULE 1 Reserved Matters......................................28
SCHEDULE 2 Deed of Adherence.....................................30
SCHEDULE 3 Form of Deadlock Option Notice........................31
SCHEDULE 4 Existing Interests in Turkcell........................32
DATED September 20, 2005
PARTIES
(1) ALFA TELECOM TURKEY LIMITED, a company incorporated in the British
Virgin Islands with company number 1000502 whose registered office is at
Geneva Place, Waterfront Drive, P.O. Box 3469, Road Town, Tortola,
British Virgin Islands ("Alfa");
(2) CUKUROVA FINANCE INTERNATIONAL LIMITED, a company formed under the laws
of the British Virgin Islands, the registered office of which is at
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ("Cukurova"); and
(3) CUKUROVA TELECOM HOLDINGS LIMITED, a company formed under the laws of
the British Virgin Islands the registered office of which is at
Craigmuir ▇▇▇▇▇▇▇▇, P.O. Box 71, Road Town, Tortola, British Virgin
Islands ("CTH").
RECITALS
(A) Prior to Conversion (as defined below) Cukurova was the holder of 100%
of the issued share capital of CTH, which holds an indirect interest in
Turkcell, through a 52.91% interest in Turkcell Holding.
(B) Prior to Conversion, Alfa held convertible bonds issued by CTH (the
"Convertible Bonds"). Following conversion of the Convertible Bonds
("Conversion") Alfa holds 49% of the equity share capital of CTH and
Cukurova holds 51% of the equity share capital of CTH.
(C) Alfa and Cukurova have entered into this Agreement to regulate, with
effect from Conversion their rights in relation to their investments in
CTH.
IT IS AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 In this Agreement, including the Recitals, the following words and
expressions shall have the following meanings:
"Acceptance Period" has the meaning given to such term in clause 13.5;
"Affected Party" has the meaning given to such term in clause 14.2;
"Affected Party's Shares" has the meaning given to such term in clause
14.2;
"Affiliate" means in relation to a Person, any other Person that,
directly or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with, the first mentioned
Person;
"Alfa Directors" means the Directors appointed by Alfa from time to
time;
"Alfa Group" means Alfa and its subsidiary undertakings from time to
time and "Alfa Group Member" means any of them;
"Articles" means the Articles of Association of CTH adopted immediately
prior to Conversion, as amended from time to time;
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"Board" means the board of directors of CTH save in the case of clauses
3.3 to 3.11 (inclusive) where it shall be construed as the board of
directors of each of CTH, CTI and Intercon respectively;
"Business" means the business of Turkcell and/or any of its subsidiary
undertakings;
"Business Plan and Budget" means the business plan, performance targets
and budget of the CTH Group as approved by the Board from time to time;
"Buy-Out Notice" has the meaning given to that term in clause 14.3;
"Buy-Out Price" means the value of the relevant CTH Shares in aggregate
calculated, on a look-through basis, based on the weighted average
market value of publicly traded Turkcell shares over the previous 60 day
period, as reported in the Istanbul Stock Exchange Bulletin, plus a
premium of 20 per cent;
"Call Option" means the option pursuant to clause 6.1(B) or 6.2(A), as
the case may be;
"Chairman" means the chairman from time to time of the Board save in the
case of clauses 3.8 and 3.11 where it shall be construed as the chairman
of the boards of directors of each of CTH, CTI and Intercon
respectively;
"Change of Control" has the meaning given to such term in clause 14.1;
"Competitor" means any Person holding a GSM license in Turkey other than
Turkcell or an Affiliate of Turkcell or any Person holding a direct or
indirect Relevant Interest in such first Person;
"Completion Date" means the date on which Completion occurs (as defined
in the Subscription Agreement);
"Confidential Information" has the meaning given to that term in clause
11.1;
"Continuing Party" means the Shareholder upon whom there is served a
Transfer Notice or a Buy-Out Notice;
"Controlling Interest" means:
(a) the ownership or control (directly or indirectly) of more than
fifty per cent. (50%) of the voting share capital of the
relevant undertaking; or
(b) the ability to direct the casting of more than fifty per cent.
(50%) of the votes exercisable at general meetings of the
relevant undertaking on all, or substantially all, matters;
(c) the right to appoint or remove directors of the relevant
undertaking holding a majority of the voting rights at meetings
of the board on all, or substantially all, or any material
matters; or
(d) the ability to manage and direct the relevant undertaking,
whether pursuant to management contract, shareholders' agreement
or otherwise.
"Conversion" has the meaning set forth in recital (B);
"Convertible Bonds" has the meaning set forth in recital (B);
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"CTH Group" means CTH and its subsidiary undertakings for the time being
(which include, without limitation, CTI, Intercon, Turkcell Holding and
Turkcell) and from time to time and "CTH Group Member" means any of
them;
"CTH Shares" means the ordinary shares of CTH from time to time;
"CTI" means Cukurova Telecom International Limited, a company formed
under the laws of the British Virgin Islands, the registered office of
which is at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
"Cukurova Directors" means the Directors appointed by Cukurova from time
to time;
"Cukurova Group" means Cukurova and its subsidiary undertakings and
parent undertakings and any subsidiary undertakings of such parent
undertaking from time to time and "Cukurova Group Member" means any of
them;
"Cure Period" has the meaning given to that expression in clause 6.2;
"Deadlock" has the meaning given to that expression in clause 8
(Deadlock);
"Defaulting Party" has the meaning given to that expression in clause 15
(Default);
"Directors" means the directors of CTH from time to time save in the
case of clauses 3.3 to 3.11 (inclusive) and where used in the definition
of Unsuitable Director where it shall be construed as the directors of
each of CTH, CTI and Intercon respectively;
"Excluded Assets" means the assets and liabilities of Intercon;
"Financing Agreements" means the Secured Facility Agreement, Unsecured
Facility Agreement, and any share charge or other security agreement
entered into between Alfa and Cukurova (or their respective Affiliates)
as security for Cukurova's (or its Affiliates') obligations thereunder;
"Group" in relation to CTH or a Shareholder, as the case may be, means
that company and its subsidiary undertakings from time to time;
"Intercon" means Intercon Danismanlik ve Evgitim Hizmetleri A.S., a
company incorporated under the laws of the Republic of Turkey with
company number 265036/212608 whose registered office is at Buyukdere
Cad. Yapi Kredi Plaza ▇. ▇▇▇▇ Kat: 15 1. Levent, Istanbul;
"International Accounting Standards" means International Accounting
Standards, promulgated by the International Accounting Standards Board
from time to time;
"LIBOR" means the British Bankers' Association Interest Settlement Rate
for 1 year U.S dollar deposits as displayed on the appropriate page of
the Telerate screen at or about 11.00 a.m. (London time) measured on the
Completion Date and each anniversary thereof;
"Marketable Securities" mean securities of entities that (a) are traded
on an internationally recognised securities exchange or system or are
otherwise actively traded on any national securities market of any
jurisdiction or country, and (b) are not subject to restrictions on
transfer as a result of applicable contract provisions or the provisions
of any securities laws or regulations;
"Material Default" has the meaning given to that expression in clause 15
(Default);
"Offered Price" has the meaning given to that term in clause 14.3;
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"Option Notice" has the meaning given to such term in clause 6.3;
"Option Price" means a price per share equal to the greater of (i) the
price per share at which Alfa acquired its CTH Shares (with Alfa's
acquisition price for these purposes being the subscription price of the
Convertible Bonds) together with accrued interest at an annual rate of
LIBOR plus 8% (or any lower rate applicable in the future in relation to
the Secured Facility Agreement applied pro-rata temporis) and (ii) the
Buy-Out Price;
"Person" means any individual, corporation, general or limited
partnership, limited liability company, joint venture or other entity or
association (whether incorporated or unincorporated);
"Put Option" means the option granted pursuant to clause 6.1(A) or, as
the case may be, clause 6.2(B);
"Regulatory Approvals" means any necessary approvals, consents, permits,
or licenses required by any competent supranational, governmental or
regulatory agencies or authorities, provided, however that Regulatory
Approval does not include the obtaining of a waiver of mandatory tender
offer requirements from the Turkish Capital Markets Board;
"Relevant Interest" means in relation to a Person, (i) the right to
exercise, directly or indirectly, at least 20% of the voting rights in
that Person and/or to receive (directly or indirectly) at least 20% of
the economic benefit of that Person; or (ii) the right to exercise
(directly or indirectly) management control over that Person;
"Reserved Matters" means those matters listed in Schedule 1;
"Reserved Matters Grace Period" means the period of four years from the
Completion Date;
"Secured Facility Agreement" means the facility agreement in respect of
a facility of US$1,352,000,000 to be entered into between Cukurova,
Cukurova Holding A.S., and Alfa, in connection with the Subscription
Agreement;
"Shareholders" means each of Alfa and Cukurova and any Person to whom
shares are transferred in accordance with this Agreement and
"Shareholder" shall be construed accordingly;
"Specified Price" has the meaning given to such term in clause 8.3;
"Subscription Agreement" means the Subscription Agreement, dated 1 June
2005, between Alfa, Cukurova, and Cukurova Holding A.S.;
"subsidiary" and "subsidiary undertaking" means a subsidiary and a
subsidiary undertaking for the purposes of the Companies ▇▇▇ ▇▇▇▇
provided that, for the purposes of this Agreement, neither CTH nor any
subsidiary or subsidiary undertaking of CTH is to be regarded as a
subsidiary or subsidiary undertaking of Alfa or Cukurova or any other
Alfa Group Member or Cukurova Group Member;
"Terminating Party" has the meaning given to such term in clause 8.3;
"Territory" means The Republic of Turkey;
"Third Party Purchaser" has the meaning given to such term in clause
13.4;
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"TH Shareholder" means any substantial shareholder in Turkcell Holding
other than CTH;
"Transfer Date" has the meaning given to such term in clause 16.1(B)
"Transfer Notice" shall have the meaning given to such term in clause
13.4;
"Transferee Affiliate" shall have the meaning given to such term in
clause 13.3;
"Transferring Shareholder" shall have the meaning given to such term in
clause 13.4;
"Turkcell" means Turkcell Iletisim Hizmetleri A.S., a company formed
under the laws of the Republic of Turkey;
"Turkcell Holding" means Turkcell Holding A.S., a company formed under
the laws of the Republic of Turkey;
"Turkcell Holding Shares" means the 52.91% of the shares in the capital
of Turkcell Holding to be acquired by CTH as contemplated by the
Subscription Agreement;
"Unsecured Facility Agreement" means the facility agreement in respect
of a facility of US$355 million, to be entered into between Cukurova,
Cukurova Holding A.S., BMC Sanayi ve Ticaret A.S., ▇▇▇▇▇▇ ▇▇▇▇
Karamehmet, and Alfa;
"Unsuitable Director" means a Director who is or becomes of unsound mind
or is or becomes substantially unable to fulfil his duties due to ill
health or is or has been determined by a court of competent jurisdiction
to have acted in material breach of any relevant laws or to have
committed any serious criminal offence or material breach of any
fiduciary or other duty in relation to the CTH Group or is or becomes
otherwise unfit to act as a director;
"Warning Notice" has the meaning given to such term in clause 8.2.
1.2 In this Agreement:
(A) reference to a party is a reference to a party to this Agreement
(or, where relevant, a Person who enters into a deed of
adherence in accordance with clause 16.1(H)) and references to a
party include references to the successors or assigns (immediate
or otherwise) of that party;
(B) reference to an amount in United States dollars or US$ is a
reference to the lawful currency of the United States of
America; and
(C) except where the context otherwise requires reference to Alfa
includes any Alfa Group Member which holds any CTH Shares and
reference to Cukurova includes any Cukurova Group Member which
holds any CTH Shares.
1.3 In relation to an undertaking which is not a company, expressions in
this Agreement appropriate to companies are to be construed as
references to the corresponding persons, officers, documents or organs
(as the case may be) appropriate to undertakings of that description.
1.4 Any reference, express or implied, to an enactment includes references
to:
(A) that enactment as amended, extended or applied by or under any
other enactment before or after signature of this Agreement;
(B) any enactment which that enactment re-enacts (with or without
modification); and
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(C) any subordinate legislation made (before or after signature of
this Agreement) under any enactment, including one within clause
1.4(A) or 1.4(B),
provided that no such enactment or subordinate legislation made after
the date of this Agreement shall increase the liability of any party
under or pursuant to this Agreement.
1.5 A Person shall be deemed to be connected with another if that Person is
connected with another within the meaning of section 839 of the Income
and Corporation Taxes ▇▇▇ ▇▇▇▇.
1.6 The headings in, and index to, this Agreement do not affect its
interpretation.
1.7 A reference to a document being in the Agreed Form is to a document
agreed by the parties and initialled by them or on their behalf for
identification purposes.
1.8 Where any obligation in this Agreement is expressed to be undertaken or
assumed by any party, that obligation is to be construed as requiring
the party concerned to exercise all rights and powers of control over
the affairs of any other Person (including its officers and employers)
which it is able to exercise (whether directly or indirectly) in order
to secure performance of the obligation.
1.9 The ejusdem generis rule of construction shall not apply to this
Agreement and accordingly general words shall not be given a
restrictive meaning by reason of their being preceded or followed by
words indicating a particular class or examples of acts, matters, or
things
1.10 Words importing the singular shall include the plural and vice versa and
words importing any gender shall include all other genders and
references to persons shall include corporations and unincorporated
associations.
1.11 References to this Agreement shall include the Schedules hereto which
shall form part hereof and shall have the same force and effect as if
expressly set out in the body of this Agreement.
2. MINORITY INTERESTS AND DEBTS
2.1 Each of Alfa and Cukurova will procure that:
(A) respectively, no Alfa Group Member and no Cukurova Group Member
(other than as set out in Schedule 4) will (directly or
indirectly) acquire or hold any interest (minority or otherwise)
in any member of the CTH Group; provided that this clause 2.1(A)
shall not prohibit an Alfa Group Member or Cukurova Group Member
from acquiring up to fifteen percent of the issued and
outstanding equity securities of Turkcell, but no other member
of the CTH Group, provided that Turkcell remains listed on an
internationally recognised stock exchange and provided further
that such acquisition is made only through an internationally
recognised stock exchange;
(B) subject to the prior agreement of the Board, and except as
otherwise stated herein, if the opportunity arises to acquire
any interests in any CTH Group Member, the parties shall procure
that such acquisition only be carried out by CTH.
2.2 Each of Alfa and Cukurova will procure that no Alfa Group Member or
Cukurova Group Member, respectively, will (directly or indirectly)
acquire or hold any debt of any member of the CTH Group unless otherwise
approved by the other party in writing.
2.3 To the extent that any Alfa Group Member or Cukurova Group Member holds
directly any shares in Turkcell, Alfa shall procure that such Alfa Group
Member, and Cukurova shall procure that such Cukurova Group Member,
shall vote, and take all other actions in respect of, such shares as
agreed between Alfa and Cukurova and documented in duly adopted
resolutions of the Board of CTH.
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3. DIRECTORS AND MANAGEMENT
3.1 The Board shall be responsible for the overall direction, supervision
and management of the CTH Group including approving the Business Plan
and deciding on the Reserved Matters. Once the Board has passed a
resolution in relation to a Reserved Matter or agreed an approach for
the purposes of clause 3.12, Cukurova shall procure that the Cukurova
Directors and Alfa shall procure that the Alfa Directors shall use their
respective best endeavours to procure that the resolution is implemented
by the relevant member(s) of the CTH Group. Each of Alfa and Cukurova
shall themselves also use their respective best endeavours to procure
that such resolution is implemented by the relevant CTH Group Member(s),
including, without limitation, by instructing their respective Directors
and their respective representatives on the board of directors of any
CTH Group Member to vote in favour of implementation of any such
resolution.
3.2 Unless the parties agree otherwise in writing (and subject to the
remainder of this clause 3.2), the Board shall consist of five
Directors. Alfa shall have the right to appoint two Directors and
Cukurova shall have the right to appoint three Directors, in each case
in accordance with clause 3.4.
3.3 Unless the parties otherwise agree in writing the boards of directors of
Intercon and CTI shall each consist of five directors. Alfa shall have
the right to appoint two of the directors to each such board and
Cukurova shall have the right to appoint three of the directors on each
such board.
3.4 Subject to clause 3.2, each Shareholder may appoint or remove a Director
nominated by it by serving written notice to CTH in accordance with the
Articles (copied to the other Shareholder) signed by it or on its behalf
by a duly authorised person; provided always that if any Director is or
at any time becomes an Unsuitable Director then either Alfa or Cukurova
may serve a written notice signed by it or on its behalf by a duly
authorised person requiring the removal of that Unsuitable Director. The
appointment or removal shall take effect when the relevant notice is
delivered to CTH, unless the notice indicates otherwise. Each of Alfa
and Cukurova shall cast any votes it may have in CTH to ensure that the
Board is constituted by persons appointed in the manner set out in this
Agreement.
3.5 Each Director shall serve for a term of one year and each of Alfa and
Cukurova shall re-nominate the Directors appointed by it on an annual
basis.
3.6 If any Director, or any representative of Alfa or Cukurova on the board
of directors of Turkcell or Turkcell Holdings, is removed from office
then the party responsible for such Director's or representative's
appointment shall promptly appoint a replacement in accordance with this
Agreement and the Articles.
3.7 The quorum for transacting business at any Board meeting (subject to the
last sentence of this clause) shall be at least four Directors (or their
alternates) present when the relevant business is transacted. If that
quorum is not present within two hours from the time when the meeting
should have begun, or if during the meeting there is no longer a quorum,
the meeting shall be adjourned for not less than seven days and provided
that at least seven days' written notice of the reconvened meeting is
given to each Director. If a quorum is not present at the reconvened
meeting within two hours from the time when such reconvened meeting
should have begun, the meeting shall again be adjourned for not less
than seven days and, provided that at least seven days' written notice
is given to each Director, the quorum shall, other than in respect of
any Reserved Matters (which, for the avoidance of doubt, shall always
require a quorum of at least four Directors), be:
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(A) any two Directors, if the reason for the lack of quorum was the
absence of a Cukurova Director; or
(B) any three Directors, if the reason for the lack of quorum was
the absence of an Alfa Director.
3.8 At least seven days written notice shall be given to each Director of
any Board meeting unless at least one Alfa Director (or his alternate)
and one Cukurova Director (or his alternate) approve a shorter notice
period. Any notice shall include an agenda identifying in reasonable
detail the matters to be discussed at the meeting together with copies
of any relevant papers to be discussed at the meeting. If any matter is
not identified in reasonable detail, the Board shall not decide on it,
unless all the Directors present agree.
3.9 The Board shall decide on matters by simple majority vote except in
relation to any of the Reserved Matters which shall require a unanimous
vote. Each Director shall have one vote and the Chairman shall not have
a second or deciding vote. Any Director who is absent from a meeting may
nominate any other Director by notice in writing copied to CTH so as to
be received prior to the convening of the meeting to act as his
alternate and to vote in his place at the meeting.
3.10 The members of the Board shall decide how often they meet and where such
meetings shall take place taking into account the respective tax
considerations of the CTH Group, the Alfa Group and the Cukurova Group.
3.11 The Chairman of the Board shall be a Cukurova Director. If the Chairman
is unable to attend any meeting of the Board or the Company, Cukurova
shall be entitled to appoint another Director to act in his place.
3.12 Alfa and Cukurova shall discuss in good faith and agree in the Board
meetings of CTH the approach to be taken by their representatives at
shareholders meetings of, and by their respective representatives
appointed to the board of directors of, each of Turkcell Holding and
Turkcell, and each of Alfa and Cukurova shall procure that their
representatives at shareholder meetings of, and their respective
representatives on the board of directors of, Turkcell Holding and
Turkcell shall cast their votes, and otherwise act and take all steps,
in support of the approach agreed by Alfa and Cukurova as documented in
resolutions duly adopted by the Board of CTH.
4. RESERVED MATTERS
Each party agrees to use all of the powers at its disposal and exercise
any and all voting rights it may have to ensure that no action is taken
or decision made relating to any of the matters specified in Schedule 1
(Reserved Matters) (whether by any members of the Board, CTH, any other
member of the CTH Group or any of the officers or managers within the
CTH Group) unless the Board has given its unanimous approval to proceed.
5. CTH GROUP STRUCTURE
The parties acknowledge that as a matter of Turkish law Intercon and
Turkcell Holding must have a minimum of five shareholders. It is agreed
that in relation to Intercon four shareholders (besides CTH) shall each
hold one share in Intercon and in relation to Turkcell Holding three of
such shareholders (besides CTI) shall each hold one share in Turkcell
Holding and such shareholders (in the case of both Intercon and Turkcell
Holding) shall be bare nominees of Cukurova. Cukurova hereby undertakes
that it shall not and it shall procure that its nominees aforesaid shall
not exercise any voting rights or any other powers in relation to those
four shares.
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6. PUT AND CALL OPTION
6.1 In the event that the Board passes a resolution on a matter that is not
a Reserved Matter, and no Alfa Directors have voted in favour of such
resolution (including, without limitation, because the Alfa Directors
voted against such resolution, abstained from voting, or were not
present at the relevant Board meeting) then Alfa shall have the option
to require Cukurova to purchase all of Alfa's CTH Shares for an amount
equal to the Option Price multiplied by the number of CTH Shares held by
Alfa at the time.
6.2 In the event that any member of the board of directors or equivalent
management body ("Defaulting Officer") of any CTH Group Member casts any
vote or takes any action in respect of a matter that is in contradiction
to the approach agreed to by Alfa and Cukurova with respect to such
matter (as documented in resolutions duly adopted by the Board of CTH)
(a "Default") and such Defaulting Officer, or the Shareholder that
appointed such Defaulting Officer, does not remedy such Default within
45 days of its occurrence (the "Cure Period") and:
(A) whilst there shall remain outstanding any amount of principal or
any interest thereon under the Financing Agreements, Alfa or, as
the case may be, Cukurova shall (if it was not the party which
appointed the Defaulting Officer ("the Innocent Party" and the
other of them being the "Defaulting Party")) have the option
(the "Call Option") to require the Defaulting Party to sell to
the Innocent Party all of the Defaulting Party's CTH Shares, and
to procure the sale of all of its Affiliates' CTH Shares, for an
amount equal to the Buy-Out Price; or
(B) if the obligations under the Financing Agreements (including the
payment of all accrued interest on any principal thereunder)
shall have been discharged, then the Innocent Party in its sole
discretion (a) shall have the option (the "Put Option") to
require the Defaulting Party to buy all of the Innocent Party's
(and its Affiliates') CTH Shares for an amount equal to the
Option Price multiplied by the number of CTH Shares to be sold
or (b) have the option to require the Defaulting Party to sell
to the Innocent Party all of the Defaulting Party's CTH Shares,
and to procure the sale of all its Affiliates' CTH Shares, for
an amount equal to the Buy-Out Price.
6.3 A Put Option or, as the case may be, a Call Option shall be exercisable
by written notice from the exercising Shareholder to the other
Shareholder (an "Option Notice") during a period of 30 days commencing
from, (i) in the case of an event specified in clause 6.1, the date that
exercising Shareholder learns of the happening of an event specified in
clause 6.1, and (ii) in the case of the happening of an event specified
in clause 6.2, the later to occur of the expiration of the Cure Period
or the date that the exercising Shareholder learns of the happening of
an event specified in clause 6.2. The exercising Shareholder shall have
the right to issue an Option Notice at any time during such 45 day
period, provided that in the case of a Default, such Default has not
been remedied at the time of the issue of the Option Notice. The Option
Notice shall specify the Option Price or the Buy-Out Price, as
applicable, at which the non-exercising Shareholder is to sell or, as
the case may be, acquire the relevant CTH Shares. The decision by the
exercising Shareholder not to exercise a Put Option or, as the case may
be, a Call Option in respect of the occurrence of an event specified in
clause 6.1 or clause 6.2 shall not impact the Shareholder's right to
exercise a Put Option or, as the case may be, a Call Option in respect
of any other occurrence of an event specified in clause 6.1 or clause
6.2.
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6.4 Upon delivery of an Option Notice, the exercising Shareholder shall be
obliged to sell or, as the case may be, acquire and the non-exercising
Shareholder shall be obliged to purchase, or as the case may be, sell,
at the Option Price or the Buy-Out Price, as applicable, all the CTH
Shares that are the subject of the Option Notice, and procure the sale,
or as the case may be, purchase of all such CTH Shares owned by it and
its Affiliates.
6.5 Alfa and Cukurova shall be required to complete the sale and purchase of
the relevant CTH Shares within 90 days after the delivery of the Option
Notice or, if any Regulatory Approval has not been obtained by the end
of that period, within ten days of the date on which the last Regulatory
Approval to be obtained is obtained.
7. MEETINGS OF THE MEMBERS
7.1 Meetings of Shareholders shall take place in accordance with the
applicable provisions of the Articles including on the basis that:
(A) the quorum shall be one duly authorised representative of Alfa
and one duly authorised representative of Cukurova, provided,
however, that if this quorum is not obtained for two consecutive
attempts to convene a meeting of the Shareholders, on the third
attempt to convene such meeting of the Shareholders, the quorum
shall, other than in respect of any Reserved Matters (in which
case clause 7.2 shall apply), require the presence the duly
authorised representative of either of Alfa or Cukurova;
(B) the notice of meeting shall set out an agenda identifying in
reasonable detail the matters to be discussed (unless Alfa or
Cukurova agree otherwise);
(C) the chairman of the meeting shall not have a second or deciding
vote.
7.2 Any matters requiring a meeting of, or approval by, the Shareholders
shall be dealt with in accordance with the Articles; provided that if a
matter that is a Reserved Matter is to be approved by the Shareholders,
approval of such Reserved Matter shall require the unanimous vote of
Alfa and Cukurova.
8. DEADLOCK
8.1 For the purpose of this clause 8, a "Deadlock" shall be deemed to occur
if:
(A) any of the Reserved Matters or any other matter relating to any
CTH Group Member has been raised at and/or considered by a
meeting of the Board or a general meeting of CTH, in either case
where a quorum was present, and no resolution in respect thereof
has been passed unanimously by all of the Directors or, as the
case may be, Alfa and Cukurova, on at least two successive
occasions; or
(B) a quorum is not present at three successive duly convened Board
or general meetings by reason of the absence from that general
meeting of the same Shareholder or, in the case of a Board
meeting, a person nominated as a Director by the same
Shareholder.
8.2 In the event of any such Deadlock, the matter shall be referred to a
representative of each of Alfa or Cukurova to be designated by each of
them respectively within six days of the Deadlock occurring. During the
Reserved Matters Grace Period, Alfa or Cukurova shall use their best
endeavours to resolve the Deadlock. If the Deadlock cannot be resolved
prior to the later to occur of (i) 30 days following each of Alfa or
Cukurova designating a representative in accordance with the foregoing
or (ii) the expiry of the Reserved Matters Grace Period, either Alfa or
Cukurova may serve notice ("a Warning Notice") that it intends to
implement the deadlock procedure contemplated by this clause 8.
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8.3 If the Deadlock cannot be resolved within a further period of 30 days
after service of a Warning Notice, either Alfa or Cukurova may within a
period of 30 days thereafter serve a notice in writing, substantially in
the form attached hereto as Schedule 3, on the other of them ("a
Deadlock Option Notice") specifying a single price per CTH Share ("the
Specified Price") at which the Shareholder giving notice ("the
Terminating Party") offers (as specified in the Deadlock Option Notice)
either:
(A) to sell to the other of them all (but not part) of the CTH
Shares collectively held by the Terminating Party and/or members
of its Group; or
(B) to purchase all (but not part) of the CTH Shares collectively
held by the other of them and/or members of its Group.
A Deadlock Option Notice shall be irrevocable.
8.4 The other of them shall, within a period of 30 days after receipt of a
Deadlock Option Notice, at its sole option elect in writing either:
(A) to purchase, or to procure the purchase of, all (but not part)
of the CTH Shares collectively held by the Terminating Party
and/or members of its Group at the Specified Price; or
(B) to require the Terminating Party to purchase, or to procure the
purchase of, all (but not some only) of the Shares collectively
held by that other Shareholder or member of its Group at the
Specified Price.
8.5 If no election is made by that other Shareholder within the said period
of 30 days after receipt of a Deadlock Option Notice, it shall be deemed
to have elected to proceed in accordance with requirements of the
Deadlock Option Notice and shall be bound (subject only to any
Regulatory Approvals) to complete the sale and purchase of each of the
relevant CTH Shares at the Specified Price within 30 days after the
period specified in clause 8.4 or, if any Regulatory Approval has not
been obtained by the end of that period, within ten days of the date on
which the last Regulatory Approval to be obtained is obtained. If any
Regulatory Approval has not been obtained or waived within 180 days
after such election the Deadlock Option Notice shall lapse and have no
further effect.
8.6 If an election under clause 8.4(A) or clause 8.4(B) is duly made, the
Shareholders shall be bound (subject only to any Regulatory Approvals)
to complete the sale and purchase of each of the relevant CTH Shares at
the Specified Price within 30 days after such election or, if any
Regulatory Approval has not been obtained by the end of that period,
within ten days of the date on which the last Regulatory Approval to be
obtained is obtained. If any Regulatory Approval has not been obtained
or waived within 180 days after such election the Deadlock Option Notice
shall lapse and have no further effect.
8.7 If Alfa shall become obliged to acquire the CTH Shares held by Cukurova
in accordance with the above procedures the amount payable by Alfa shall
be the Specified Price less any and all outstanding principal amounts,
any accrued but unpaid interest thereon, and any other amounts owing
under the Financing Agreements at the relevant time.
9. FINANCIAL MATTERS
9.1 Subject to clause 9.2, the parties shall, unless they agree otherwise in
relation to any financial year, take all steps to ensure that in respect
of each financial year not less than one hundred per cent (100%) (or
such other percentage as the parties may agree from time to time in
writing) of the consolidated profit (after taxation and any
extraordinary items) as determined in accordance with International
Accounting Standards as shown by CTH's financial statements for that
financial year and available for distribution in accordance with
applicable law shall be distributed.
11
For so long as any amounts remain outstanding under the Secured Facility
Agreement or Unsecured Facility Agreement, any dividends payable to
Cukurova or its Affiliates shall be paid by the Company on behalf of
Cukurova and its Affiliates to Alfa to satisfy any amounts due and
payable by Cukurova to Alfa in accordance with the terms of the
Financing Agreements. Further, the Board shall not make any decision to
retain any profits in lieu of distributing dividends until sufficient
dividends have been distributed to satisfy all amounts then due and
payable by Cukurova to Alfa under the Financing Agreements. Alfa and
Cukurova will take all necessary actions to ensure that dividends are
paid only in accordance with this provision.
9.2 If the Board shall unanimously consider it prudent for the finances of
CTH to retain a portion of any profits that would otherwise be available
for distribution pursuant to clause 9.1, then such portion shall be
retained by CTH and not distributed in accordance with clause 9.1.
9.3 The parties shall, unless they agree otherwise in relation to any
financial year, take all steps to ensure that in respect of each
financial year not less than 100 per cent. of the profit (after taxation
and extraordinary items) as shown by Turkcell Holding's financial
statements for that financial year and available for distribution in
accordance with applicable law shall be distributed, and that 100% of
the profits of Turkcell shall be distributed after retaining reasonable
reserves for the operation of Turkcell, consistent with historic
practice.
10. INFORMATION AND REPORTING
10.1 The Shareholders shall cause CTH (at its expense) to at all reasonable
times give access (including to its premises) to the Shareholders
(including their lawyers, accountants and consultants) to its records
(including the provision of photocopying facilities) and it shall ensure
that the services of its employees are made available to them on
reasonable notice to answer such questions as they may raise in respect
of such records.
10.2 Without prejudice to the generality of clause 10.1, CTH shall supply the
Shareholders with copies of:
(A) audited accounts for CTH and CTH Group's audited consolidated
accounts, each complying with all relevant legal requirements
within 90 days of the end of the relevant financial year and
prepared by an internationally recognised accounting firm;
(B) quarterly management accounts of CTH (which shall include a
consolidated profit and loss account, balance sheet and cash
flow statement, up-to-date forecasts for the balance of the
relevant financial year not less than 20 days after the end of
the relevant quarter;
(C) a statement of progress against the Business Plan specifying in
particular any deviations therefrom,
and shall provide such other information relating to the business or
affairs of the CTH Group and its financial position or prospects as may
reasonably be required by Alfa and/or Cukurova provided always that this
clause shall not require CTH to provide any information in relation to
the Excluded Assets.
12
10.3 If CTH fails to comply with its obligations under clause 10.2 to supply
information required to be given to the Shareholders, either Alfa or
Cukurova shall be entitled to instruct a firm of chartered accountants
to prepare and submit to the Shareholders and CTH (at the cost of CTH)
such information as should have been supplied to that Shareholder under
such clause and such other financial information concerning the CTH
Group as that Shareholder shall reasonably require and CTH shall (and
shall procure that each CTH Group Member shall) give such accountants
access to its premises and financial records and all the assistance
which such accountants may request for this purpose.
11. CONFIDENTIALITY
11.1 Each party shall use (and shall ensure that each member of its Group
shall use) all reasonable endeavours to keep confidential (and to ensure
that its officers, employees, agents and professional and other advisers
keep confidential) any information:
(A) which it may have, or acquire, before or after the date of this
Agreement in relation to any CTH Group Member's customers,
business, assets or affairs including any information provided
pursuant to clause 10 (Information and Reporting);
(B) which it may have, or acquire, before or after the date of this
Agreement in relation to the customers, business, assets or
affairs of any Alfa Group Member or any Affiliate of Alfa (if
the party is CTH or Cukurova) or of any Cukurova Group Member or
any Affiliate of Cukurova (if the party is CTH or Alfa)
resulting from:
(1) negotiating this Agreement;
(2) being a shareholder in CTH;
(3) having appointees on the Board; or
(4) exercising its rights or performing its obligations
under this Agreement; or
(C) which relates to the contents of this Agreement (or any
agreement or arrangement entered into pursuant to this
Agreement),
and no party shall use for its own business purposes or disclose to any
third party any such information (collectively, the "Confidential
Information") without the prior written consent of the other parties. In
performing its obligations under this clause 11, each party shall apply
the confidentiality standards and procedures it applies generally in
relation to its own confidential information. For the avoidance of
doubt, the term Confidential Information shall be limited to information
related to the entities that are relevant to the business of the
companies in which the Shareholders have a (direct or indirect) joint
interest.
11.2 The obligation of confidentiality under clause 11.1 does not apply to:
(A) the disclosure (subject to clause 11.3) on a "need to know"
basis to a company which is another Alfa Group Member or
Affiliate of Alfa or Cukurova Group Member or Affiliate of
Cukurova (as the case may be) where the disclosure is for a
purpose reasonably incidental to this Agreement;
(B) information which is independently developed by the relevant
party or acquired from a third party to the extent that it is
acquired with the right to disclose the same;
(C) the disclosure of information to the extent required to be
disclosed by law, any stock exchange regulation or any binding
judgement, order or requirement of any court, regulatory body or
other competent authority;
13
(D) the disclosure of information to any tax authority to the extent
required for the purposes of the tax affairs of the party
concerned or any member of its Group;
(E) the disclosure (subject to clause 11.3) in confidence to a
party's professional advisers of information reasonably required
to be disclosed for a purpose reasonably incidental to this
Agreement;
(F) the disclosure (subject to clause 11.3) by either of Alfa or
Cukurova to their respective institutional financiers and
bankers and the professional advisers to such institutional
financiers and bankers for a purpose reasonably incidental to
and to the extent reasonably required by such institutional
financiers and bankers for the purposes of them considering
extending financing to the party in question;
(G) information which becomes within the public domain (otherwise
than as a result of a breach of this clause 11); or
(H) any announcement made in accordance with the terms of clause 25
(Announcements).
11.3 Each Shareholder shall inform (and shall ensure that each member of its
Group shall inform) any officer, employee, agent or professional or
other adviser advising it in relation to the matters referred to in this
Agreement, or to whom it provides Confidential Information, that such
information is confidential and shall instruct them:
(A) to keep it confidential; and
(B) not to disclose it to any third party (other than those Persons
to whom it has already been disclosed in accordance with the
terms of this Agreement),
and the disclosing party is responsible for any breach of this clause 11
by the Person to whom the Confidential Information is disclosed.
11.4 If this Agreement terminates, either Shareholder may by written notice
require the other Shareholder to return or destroy the first
Shareholder's Confidential Information whereupon the other Shareholder
shall (and shall ensure that each member of its Group shall):
(A) return all documents containing Confidential Information which
have been provided by or on behalf of the Shareholder demanding
the return of Confidential Information; and
(B) destroy any copies of such documents and any document or other
record reproducing, containing or made from or with reference to
the Confidential Information,
save, in each case, for any submission to or filings with governmental,
tax or regulatory authorities. The other Shareholder shall return or
destroy (and shall confirm such destruction in writing) the first
Shareholder's Confidential Information as soon as practicable after
receiving notice.
11.5 CTH shall (and shall ensure that each other CTH Group Member shall)
observe similar obligations to those set out in clauses 11.3 and 11.4 in
favour of each Shareholder in respect of Confidential Information
relating to that Shareholder or a member of its Group which is provided
to any CTH Group Member.
11.6 The provisions of this clause 11 continue to apply to each Shareholder
for as long as it, or any member of its Group, holds any CTH Shares.
14
12. NON-COMPETITION
12.1 Each Shareholder covenants with, and undertakes to the other
Shareholder(s) and CTH (for itself and as trustee for each other CTH
Group Member) that, except as contemplated by this Agreement and except
as otherwise agreed in writing by the Board with the consent of all the
Shareholders and without prejudice to any other duty implied by law or
equity, it will not for as long as it, or any member of its Group, holds
any CTH Shares (whether legally or beneficially, directly or
indirectly):
(A) directly or indirectly be concerned in any Person or business
which competes with the Business in the Territory whether or not
such Person or business is located in the Territory;
(B) encourage, procure or assist, or attempt to encourage, procure
or assist, any Person or business to do anything which, if done
by the Shareholder, would be a breach of clause 12.1(A)
12.2 For the purposes of this clause 12 a Shareholder is concerned in a
Person or business if:
(A) it carries it on as principal or agent;
(B) it is a partner, director, employee, secondee, consultant or
agent in, of or to any Person who carries on the business;
(C) it has any financial interest (as shareholder or otherwise) in
the business or in any Person who carries on the business; or
(D) it is a partner, director, employee, secondee, consultant or
agent in, of or to any Person who has a financial interest (as
shareholder or otherwise) in the business or in any Person who
carries on the business,
disregarding any financial interest of a Person in securities which are
listed or dealt in on any stock exchange if that Person, the Shareholder
and any Person connected with it are interested in securities which
amount to less than five per cent. of the issued securities of the same
class and which, in all circumstances, carry less than five per cent. of
the voting rights (if any) attaching to the issued securities of that
class.
13. TRANSFER OF SHARES
13.1 The provisions of this clause 13 apply in relation to any transfer, or
proposed transfer, of CTH Shares or any interest in CTH Shares except if
made pursuant to clause 17 or required as a result of the enforcement by
Alfa of the share charge in respect of CTH Shares granted to it by
Cukurova and referred to in the Financing Agreements.
13.2 Except as permitted by clause 13.9 and subject to clause 13.4, no
Shareholder shall, either directly or indirectly, sell, transfer or
dispose, whether by voluntary disposal or foreclosure, of any of their
CTH Shares or any interest therein to any other Person without the prior
written consent of the other Shareholders provided, however, that any
sale of an indirect beneficial interest in CTH as a whole as part of a
larger disposal, together with additional telecommunications assets of
at least US$1.5 billion shall be permitted, but shall still be
considered a change of control pursuant to clause 14.1(D).
15
13.3 If pursuant to clause 13.9, a Shareholder transfers CTH Shares to its
Affiliate ("the Transferee Affiliate") such Shareholder will remain
bound by this Agreement as if it is still a holder of CTH Shares and
shall be liable for any default of the relevant Affiliate to observe the
terms of this Agreement. Upon the earlier of (i) the Transferee
Affiliate ceasing to be an Affiliate of the relevant party and (ii)
there being agreed terms pursuant to which the Transferee Affiliate will
or may cease to be an Affiliate of the relevant party, then such
relevant party shall procure that the CTH Shares held by the Transferee
Affiliate are transferred as soon as reasonably practicable and in any
event within seven days of the relevant event aforesaid to such relevant
party. Failure to procure the transfer of the relevant CTH Shares within
the aforementioned timeframe shall constitute a Buy-Out Event in
accordance with clause 14.1(D).
13.4 Following the date two years after the Completion Date, if a Shareholder
("the Transferring Shareholder") intends to dispose of all, but not less
than all, of its CTH Shares (which, for the purposes of this clause,
shall mean the CTH Shares held by such Shareholder and each of its
Affiliates) to any Person who is not a party to this Agreement and who
is not an Affiliate of such Shareholder ("a Third Party Purchaser"),
such Shareholder shall first notify the other Shareholders (other than
its own Affiliates) in writing of its intentions ("Transfer Notice"),
which notice shall identify the Third Party Purchaser and specify the
price, which must be for cash or Marketable Securities, and other terms
on which such Shareholder's (and its Affiliates') CTH Shares are to be
disposed of.
13.5 On receipt of the Transfer Notice, the Continuing Party shall have the
right to buy the Transferring Shareholder's (and its Affiliates') CTH
Shares at the price and on the terms specified in the Transfer Notice
(or at such other price as the Transferring Shareholder and the
Continuing Party agree) by giving notice to the Transferring Shareholder
within 60 days of receiving the Transfer Notice ("the Acceptance
Period") provided that, if the Third Party Purchaser is a TH Shareholder
or an Affiliate of a TH Shareholder, then such period shall be 75 days.
The parties' obligations to complete the purchase are subject to the
provisions of clause 13.6.
13.6 The Continuing Party shall be bound (subject only to any Regulatory
Approvals) to buy the Transferring Shareholder's (and its Affiliates')
CTH Shares on giving the Transferring Shareholder notice that it is
exercising its rights under clause 13.5. In such event, completion of
the sale and purchase of the Transferring Shareholder's (and its
Affiliates') CTH Shares shall take place within 30 days of the giving of
the notice pursuant to clause 13.5 or, if later, the obtaining of all
Regulatory Approvals. Each Shareholder shall use all reasonable
endeavours to ensure that all Regulatory Approvals are obtained as soon
as practicable provided that such obligation shall not require either
Alfa or Cukurova (or any member of their respective Groups) to dispose
of any of their respective assets.
13.7 If the Continuing Party does not exercise its rights to buy under clause
13.5 or (without prejudice to any other rights the Transferring
Shareholder has under this Agreement) fails to complete the acquisition
of the Transferring Shareholder's (and its Affiliates') CTH Shares in
accordance with clause 13.6 or any notice given under those clauses
ceases to have effect pursuant to clause 13.6, the Transferring
Shareholder may (subject to clause 13.8, if applicable, and clause 16
(Transfer Terms)) transfer the Transferring Shareholder's (and its
Affiliates') CTH Shares on a bona fide arm's length sale to a Third
Party Purchaser at a price not less than, and on conditions which are
not more favourable to the Third Party Purchaser, than the purchase
price and conditions specified in the Transfer Notice provided that:
(A) (i) during the period of two years following the Completion
Date, the Third Party Purchaser (or any shareholder of it or
member of its Group) is not a Competitor, and (ii) the Third
Party Purchaser has sufficient financial resources and
experience to perform its obligations under this Agreement; and
(B) the transfer of the CTH Shares is completed within the latest
of: (i) 120 days of the date of the Transfer Notice; (ii) 120
days of the failure of the Continuing Party to complete the
acquisition of the Transferring Shareholder's (and its
Affiliates') CTH Shares in accordance with clause 13.6; or (iii)
if any notice given by the Continuing Party has ceased to have
effect pursuant to clause 13.6, the date on which that notice
ceased to have effect,
16
and the Shareholders shall give (and ensure that all members of their
respective Groups shall give) any approvals required by the Articles in
relation to any transfer of Shares permitted by the terms of this clause
13.
13.8 A sale pursuant to clause 13.7 shall not be completed unless the
Transferring Shareholder ensures that the Third Party Purchaser offers
to buy from the other Shareholder all the CTH Shares held by them on the
same terms (including price per CTH Share, which must be cash or
Marketable Securities) as apply to the purchase of the CTH Shares being
sold by the Transferring Shareholder. The offer shall be in writing and
shall be issued to the other Shareholder together with the Transfer
Notice, and shall be:
(A) be irrevocable and unconditional (except for any conditions
which apply to the proposed transfer of the CTH Shares being
sold by the Transferring Shareholder);
(B) fully describe all material terms and conditions (including
terms relating to price, time of completion and conditions
precedent) agreed between the Transferring Shareholder and the
Third Party Purchaser;
(C) be governed by the laws of England;
(D) be open for acceptance by the Continuing Party during a period
of not less than 60 days after receipt of such offer; provided
that if such Third Party Purchaser is a TH Shareholder or
Affiliate of a TH Shareholder, such period shall be 75 days,
and if the offer is accepted by the Continuing Party, the sale shall be
conditional upon completion of the sale of the CTH Shares held by the
Transferring Shareholder to the Third Party Purchaser and shall be
completed at the same time as that sale.
13.9 Notwithstanding clause 13.2 but subject always to clause 13.3 and clause
16.1(H), each Shareholder may at any time transfer any of the CTH Shares
held by it to a company which is an Affiliate of the relevant party,
provided it first provides written notice of such transfer to the other
Shareholder.
14. BUY-OUT EVENTS
14.1 The provisions of this clause 14 shall apply on the occurrence of a
Buy-Out Event. It is a Buy-Out Event in relation to a Shareholder if:
(A) a court of competent jurisdiction or relevant administrative
authority or regulatory body makes an order or a resolution is
passed, for the dissolution or administration of that
Shareholder (otherwise than in the course of a reorganisation or
restructuring previously approved in writing by the other
Shareholder, such approval not to be unreasonably withheld or
delayed);
(B) any Person (other than the other Shareholder (not being a member
of its Group)) takes any steps which are not withdrawn or
discharged within 90 days) to appoint a liquidator, manager,
receiver, administrator, administrative receiver or other
similar officer in respect of any assets which include either
(i) the CTH Shares held by that Shareholder or any member of its
Group or (ii) shares in that Shareholder or any holding company
of it;
17
(C) that Shareholder convenes a meeting of its creditors or makes or
proposes any arrangement or composition with, or any assignment
for the benefit of, its creditors;
(D) a third party (together, if applicable, with Persons acting in
concert with any such third party) acquires a Controlling
Interest in (i) that Shareholder or (ii) any holding company of
that Shareholder or (iii) subject to clause 13.3, any Transferee
Affiliate (a "Change of Control"); or
(E) the Shareholder commits a Material Default.
14.2 If a Buy-Out Event occurs in relation to a Shareholder ("the Affected
Party"), (a) the Continuing Party may make an offer to acquire all (but
not less than all) of the CTH Shares held by the Affected Party and/or
any member of its Group and/or, as the case may be, any Transferee
Affiliate (as defined in clause 13.3) (the "Affected Party's Shares") or
(b) (i) at any time with respect to a Buy-Out Event caused by a Change
of Control, or (ii) following the date that all obligations under the
Finance Documents have been satisfied in full with respect to a Buy-Out
Event caused by any other occurrence, the Continuing Party shall also
have the right to force the Affected Party to purchase all (but no less
than all) of the Affected Party's Shares:
(A) within a period of 60 days after the date the Continuing Party
becomes aware, or should have become aware, that the relevant
Buy-Out Event has occurred; or
(B) in the case of a Material Default, within a period of 60 days
after the expiry of (i) the Default Notice given under clause
15.2(A) or (ii) if applicable, the 60 day period referred to in
clause 15.2(B).
14.3 The offer for the Affected Party's Shares referred to in clause 14.2
shall take the form of a notice to the Affected Party ("the Buy-Out
Notice").
14.4 Subject only to any Regulatory Approvals, the Affected Party shall be
bound to sell or buy, as applicable, and the Continuing Party shall be
bound to buy or sell, as applicable, the Affected Party's Shares at the
Buy-Out Price (or, if the Buy-Out Event is a Material Default, the
Buy-Out Price less (without prejudice to any other remedy the Affected
Party may have in respect of the Material Default) such amount as is
equal to the reasonable costs and expenses of the acquisition incurred
by the Continuing Party), if the Continuing Party exercises its right to
buy or sell, and, in such event, completion of the sale and purchase of
the Affected Party's Shares shall take place (subject to clause 16
(Transfer Terms)) within 45 days of the day on which the Shareholders
become so bound ("the Reference Date") or, if any Regulatory Approval
has not been obtained by the end of that period, within ten days of the
date on which the last Regulatory Approval to be obtained is obtained.
If any Regulatory Approval has not been obtained within 180 days after
the Reference Date, the Buy-Out Notice shall lapse and have no further
effect.
15. DEFAULT
15.1 If a Shareholder ("the Defaulting Party"), or any member of its Group,
commits a breach of this Agreement, the other Shareholder (other than
the Defaulting Party's Affiliates) ("the Non-Defaulting Party") may
serve notice upon the Defaulting Party. The notice shall specify the
breach and require the Defaulting Party immediately to stop the breach
and, to the extent that it is possible, to make good the results of the
breach within 30 days. Such notice shall not affect the Non-Defaulting
Party's right subsequently to claim damages or other compensation under
applicable law for the breach or, where appropriate, to seek an
immediate remedy of an injunction, specific performance or similar court
order to enforce the Defaulting Party's obligations.
18
15.2 If the Defaulting Party commits a material breach of this Agreement ("a
Material Default"), the Non-Defaulting Party shall be entitled to treat
the Material Default as a Buy-Out Event for the purposes of clause
14.1(E) if:
(A) the breach has not been remedied within the 30 day period
specified in clause 15.1 and the Non-Defaulting Party (after
such 30 day period) has given not less than 30 days notice ("a
Default Notice") of its intention to treat the breach as a
Buy-Out Event and the breach remains unremedied at the end of
that further 30 day period; or
(B) in the event that litigation or arbitration proceedings take
place to establish whether or not a Material Default has
occurred and do so establish, the breach has not been remedied
within 60 days of final resolution of that dispute.
15.3 If a Material Default is so treated as a Buy-Out Event and the
Defaulting Party's Shares are acquired pursuant to clause 14 (Buy-Out
Events), the provisions of clause 12 (Non-Competition) shall continue to
apply to the Defaulting Party for a period of two years after the
disposal of its CTH Shares.
16. TRANSFER TERMS
16.1 Any transfer of the Transferring Shareholder's CTH Shares to the
Continuing Party, or a Transferee Affiliate or a Third Party Purchaser
under clause 13 (Transfer of Shares) or of the Affected Party's CTH
Shares to the Continuing Party under clause 14 (Buy-Out Events) (in this
clause, the Transferring Shareholder's and/or the Affected Party's CTH
Shares are referred to as the "Relevant Shares") shall be on the
following terms:
(A) the Relevant Shares will, subject to clause 17, be sold free
from all liens, charges and encumbrances and third party rights
and together with all rights of any nature attaching to them
including all rights to any dividends or other distributions
declared, paid or made after the date of the relevant Transfer
Notice/Buy-Out Notice (provided always that, for the avoidance
of doubt, nothing in this clause 16.1(A) will oblige Alfa to
release any security over the CTH Shares held by Cukurova
granted to Alfa or any of its Affiliates by Cukurova pursuant to
or in connection with the Financing Agreements);
(B) the Continuing Party/Transferee Affiliate/Third Party Purchaser
shall assume, with effect from the date the transfer of the
Relevant Shares completes ("the Transfer Date") all obligations
of the Transferring Shareholder/Affected Party and any member of
its Group in relation to the business of CTH Group. Where the
buyer is the Continuing Party, any such assumption shall be
without prejudice to the Continuing Party's right to receive a
contribution from the Transferring Shareholder/Affected Party
for its share of any claims attributable to any liabilities
arising in respect of the period before the Transfer Date;
(C) the Transferring Shareholder/Affected Party shall deliver to the
Continuing Party/Transferee Affiliate/Third Party Purchaser duly
executed transfer(s) in favour of the Continuing
Party/Transferee Affiliate/Third Party Purchaser, or as it may
direct, together with the appropriate share certificate(s) (or
indemnities in terms reasonably satisfactory to the Continuing
Party/Transferee Affiliate/Third Party Purchaser in respect of
any missing certificates) in respect of the Relevant Shares and
a certified copy of any authority under which such transfer(s)
is/are executed;
(D) against delivery of the transfer(s), the Continuing
Party/Transferee Affiliate/Third Party Purchaser shall pay the
total cash portion of the consideration for the Relevant Shares
to the Transferring Shareholder by electronic bank transfer for
value on the Transfer Date;
19
(E) the parties shall ensure (insofar as they are able) that the
relevant transfer or transfers (subject to their being duly
stamped, stamp duty to be paid by the Continuing
Party/Transferee Affiliate/Third Party Purchaser) are registered
in the name of the Continuing Party/Transferee Affiliate/Third
Party purchaser or as it may direct;
(F) the Transferring Shareholder/Affected Party shall do all such
other things and execute all other documents (including any
deed) as the Continuing Party/Transferee Affiliate/Third Party
Purchaser may reasonably request to give effect to the sale and
purchase of the Relevant Shares;
(G) if requested by the Continuing Party/Transferee Affiliate/Third
Party Purchaser, the Transferring Shareholder/Affected Party
shall ensure that all the Directors appointed by it resign and
the resignation(s) take effect without any liability on CTH for
compensation for loss of office or otherwise (save to the extent
that the liability arises in relation to a service contract with
a Director who was acting in an executive capacity);
(H) if the buyer is a Transferee Affiliate or Third Party Purchaser,
it shall enter into a deed of adherence (in the form set out in
Schedule 2 with such drafting amendments thereto as the
Continuing Party shall deem necessary in the circumstances) with
the Continuing Party and CTH covenanting and undertaking to
adhere to, and be bound by, the provisions corresponding to the
Transferring Shareholder's obligations under this Agreement
including those under clause 12 (Non-Competition) and this
clause 16.
17. SECURITY OVER CTH SHARES
Nothing in this Agreement shall prevent a Shareholder from creating any
charge, lien, encumbrance or granting any other security over or in
respect of the CTH Shares held by it if any of its bankers, financiers,
or other lenders shall require the same; provided, however, that
Cukurova shall not create or permit any charge, lien, encumbrance, or
granting of any other security over or in respect of the CTH Shares held
by it for so long as any amount shall remain outstanding under the
Financing Agreements, except for any security interest that Cukurova
grants as security for its obligations under the Financing Agreements.
18. DURATION
Save as expressly provided elsewhere in this Agreement and in the case
of any antecedent breach hereof, if any Shareholder (together with all
of its Affiliates) shall cease to hold any shares in CTH it shall with
immediate effect cease to have any further rights or obligations under
this agreement.
19. FURTHER ASSURANCES
19.1 So far as it is legally able, each Shareholder agrees with the other to
exercise all voting rights and powers available to it in relation to any
Person and/or CTH (including, subject to their fiduciary duties, each of
the Directors appointed by it pursuant to clause 3 (Directors and
Management)) to ensure that the provisions of this Agreement (and the
other agreements entered into pursuant to in this Agreement) are
completely and punctually fulfilled, observed and performed and
generally that full effect is given to the principles set out in this
Agreement.
20
19.2 Each Shareholder shall ensure that each member of its Group shall
perform:
(A) all obligations under this Agreement which are expressed to
relate to members of its Group (whether as the holders of Shares
or otherwise); and
(B) all obligations under any agreement entered into by any member
of its Group pursuant to this Agreement,
and the liability of a party under this clause 19.2 shall not be
discharged or impaired by any amendment to or variation of this
Agreement, any other agreement entered into pursuant to this Agreement,
any release of or granting of time or other indulgence to any member of
its Group or any third party or any other act, event or omission which,
but for this clause 19.2, would operate to impair or discharge the
liability of such party under this clause 19.2.
19.3 If Shares are at any time held by two or more members of its Group, that
Shareholder shall ensure that each such member appoints that Shareholder
or a single member of that Shareholder's Group as its attorney with
authority (or otherwise authorises the relevant Shareholder) at any time
or from time to time to accept service of any notices or proceedings
pursuant to this Agreement (or any agreement entered into pursuant to
this Agreement) and to execute such proxies, mandates, written
resolutions and other documents, approvals and consents as are required
to enable that Shareholder or a single member of that Shareholder's
Group to exercise the voting rights attaching to the Shares held by all
the members of its Group.
20. NON-ASSIGNMENT
Subject to clause 17, no party shall, or shall purport to, assign,
transfer, charge or otherwise deal with all or any of its rights and/or
obligations under this Agreement nor grant, declare, create or dispose
of any right or interest in it, or sub-contract the performance of any
of its obligations under this Agreement in whole or in part (otherwise
than pursuant to a transfer of CTH Shares in accordance with the terms
of this Agreement).
21. WAIVER OF RIGHTS
No waiver by a party of a failure by any other party to perform any
provision of this Agreement operates, or is to be construed as, a waiver
in respect of any other failure whether of a like or different
character.
22. AMENDMENTS
A variation of this Agreement is valid only if it is in writing and
signed by or on behalf of each party provided that a variation of any
provision of this Agreement which only affects the respective rights and
obligations of the Shareholders or any of them as between themselves
does not need CTH's agreement.
23. INVALIDITY
If any provision of this Agreement is, or is held to be, invalid or
unenforceable then, so far as it is invalid or unenforceable, it has no
effect and is deemed not to be included in this Agreement provided that
this shall not invalidate any of the remaining provisions of this
Agreement and the parties shall use all reasonable endeavours to replace
the invalid or unenforceable provision by a valid provision the effect
of which is as close as possible to the intended effect of the invalid
or unenforceable provision.
21
24. NO PARTNERSHIP OR AGENCY
24.1 Nothing in this Agreement (or any of the arrangements contemplated by
it) is or shall be deemed to constitute a partnership between the
parties nor, except as may be expressly set out in it, constitute any
party the agent of the other for any purpose.
24.2 Unless the parties agree otherwise in writing, no party shall enter into
any contracts or commitments with third parties as agent for any other
party or describe itself as such an agent or in any way hold itself out
as being such an agent.
25. ANNOUNCEMENTS
25.1 No formal public announcement or press release in connection with the
signature or subject matter of this Agreement shall (subject to clause
25.2) be made or issued by, or on behalf of, any party or any member of
its Group without the prior written approval of the other parties (such
approval not to be unreasonably withheld, conditioned or delayed).
25.2 If a party has an obligation to make or issue any announcement required
by any law, stock exchange or governmental authority, the relevant party
shall give the other parties every reasonable opportunity to comment on
any announcement or release before it is made or issued (provided that
this shall not have the effect of preventing the party making the
announcement or release from complying with its legal, regulatory and/or
stock exchange obligations).
26. COSTS
Each of the parties shall pay its own costs, charges and expenses
(including taxation) incurred in connection with negotiating, preparing
and implementing this Agreement and the transactions contemplated by it
provided that the costs of, and incidental to, incorporating and
establishing CTH shall be borne and paid by CTH.
27. ENTIRE AGREEMENT
In entering into this Agreement no party may rely on any representation,
warranty, collateral contract or other assurance (except those set out
in this Agreement and the documents referred to in it) made by or on
behalf of any other party before the signature of this Agreement and
each party waives all rights and remedies which, but for this clause,
might otherwise be available to it in respect of any such
representation, warranty, collateral contract or other assurance
provided that nothing in this clause shall limit or exclude any
liability for fraud.
28. CONFLICT WITH ARTICLES
If the provisions of this Agreement conflict with the Memorandum and
Articles or CTH's other constitutional documents or those of any other
CTH Group Member as applicable, the provisions of this Agreement shall
prevail and the Shareholders shall:
(A) exercise all voting and other rights and powers available to
them to give effect to the provisions of this Agreement; and
(B) (if necessary) ensure that any required amendment is made to the
Memorandum and Articles or other constitutional document of CTH.
22
29. NOTICES
29.1 Any notice or other document to be served under this Agreement may be
delivered, or sent by prepaid first class mail or internationally
recognised courier service, or sent by facsimile to the party to be
served at its address or facsimile number set out in clause 29.4 or at
such other address or number as it may have notified to the other
parties in accordance with this clause 29 and shall (where the party to
be served is not an individual) be marked for the attention of the
individual specified in this Agreement or such other individual as the
relevant party may have notified to the other parties in accordance with
this clause 29.
29.2 Any notice or document shall be deemed to have been served:
(A) if delivered, at the time of delivery; or
(B) if sent by first class mail or internationally recognised
courier service, five days after it was sent; or
(C) if sent by facsimile , the time of transmission if transmitted
before 3.00 p.m. on any business day, and in any other case at
10.00 a.m. on the business day after the date of transmission;
provided that for the purposes of this clause, the term
"business day" means any day that is not a Saturday, Sunday, or
public holiday in the place at, or to which, a notice is left or
sent.
29.3 In proving service of a notice or document it shall be sufficient to
prove that delivery was made or that the envelope containing the notice
or document was properly addressed and posted as a prepaid first class
letter or that the facsimile message was properly addressed and
transmitted as the case may be.
29.4 The addresses and fax numbers of the parties for the purpose of clause
29.1 are:
(A) Alfa:
Address: c/o Alfa Finance Holdings S.A.,
▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇,
▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Fax No: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
For the attention of: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(B) Cukurova:
Address: c/o Cukurova Holding A.S.
Buyukdere Cad. Yapi Kredi Plaza A Blok
K:15 34330 Levent, Istanbul, Turkey
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Demirtas
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇
23
(C) CTH:
Address: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇ ▇▇▇▇
For the attention of: The Directors
With a copy of any notice to CTH to be delivered to Alfa and Cukurova at
the addresses and fax numbers set out above.
29.5 All notices or formal communications under or in connection with this
Agreement shall be in the English language or, if in any other language,
accompanied by a translation into English. In the event of any conflict
between the English text and the text in any other language, the English
text shall prevail.
30. ARBITRATION AND GOVERNING LAW
30.1 Any dispute arising out of or in connection with this Agreement,
including any question regarding its existence, validity or termination,
shall be referred to and finally resolved by arbitration under the Rules
of the London Court of International Arbitration (the LCIA Rules), which
Rules are deemed to be incorporated by reference into this clause.
30.2 The number of arbitrators shall be three.
30.3 The place of arbitration shall be London, England.
30.4 The language to be used in the arbitral proceedings shall be English.
30.5 The governing law of the contract shall be the substantive law of
England.
31. PROCESS AGENTS
31.1 (i) Cukurova has appointed BMC Sanayi ve Ticaret A.S. located at
Havenfields, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇ (to
the attention of ▇▇. ▇▇▇▇▇ ▇▇▇▇; telephone: ▇▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇, fax: +44
▇ ▇▇▇ ▇▇▇ ▇▇▇) and (ii) Alfa has appointed Capita IRG Trustee Limited of
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇/▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as its agent for
the service of process in England in relation to any matter arising out
of this Agreement, service upon whom shall be deemed completed whether
or not forwarded to or received by that Party.
31.2 Any of the Parties which is incorporated outside England may from time
to time appoint a new process agent acceptable to the other Parties
(acting reasonably) to receive service of process in England in relation
to any matter arising out of the Transaction Documents, service upon
whom shall be deemed completed whether or not forwarded to or received
by that Party.
31.3 Each of the Parties which has made an appointment under clause 31 or
31.2 shall inform the other Parties, in writing, of any change in the
address of its process agent within 28 days.
31.4 If any process agent appointed by any of the Parties pursuant to clause
31 or 31.2 ceases to have an address in England, each of the relevant
Parties irrevocably agrees to appoint a new process agent acceptable to
the other Parties (acting reasonably) and to deliver to the other
Parties within 14 days a copy of a written acceptance of appointment by
its new process agent.
24
32. CONTRACTS (RIGHTS OF THIRD PARTIES) ▇▇▇ ▇▇▇▇
32.1 The parties agree and acknowledge that:
(A) nothing in this Agreement is intended to benefit any Person who
is not a party to it ("a Non-Party") and accordingly no
Non-Party has any right under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this Agreement; and
(B) no consent of any Non-Party shall be required for any rescission
of or amendment to this Agreement.
32.2 The provisions of clause 32.1 do not affect any right or remedy of a
third party which exists or is available otherwise than by operation of
the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇.
33. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
parties on separate counterparts, each of which shall be an original but
all of which together shall constitute one and the same instrument.
34. EFFECTIVENESS
The provisions of this Agreement shall be conditional upon, and shall
become effective only upon, Conversion, but not otherwise.
AS WITNESS this Agreement has been executed or delivery as a deed by the parties
the day and year first before written.
25
EXECUTION PAGE
Notwithstanding this document having been executed on September 20, 2005, the
obligations hereunder shall only be effective upon (i) the Turkish Capital
Markets Board issuing prior to October 31, 2005 its final unconditional and
irrevocable confirmation that the Contemplated Transactions and/or Conversion
(as such terms are defined in the Subscription Agreement dated) will not require
any party to make a mandatory tender offer for any shares in Turkcell Iletisim
Hizmetleri A.S. and/or Turkcell Holding A.S. or any other company; and (ii) the
Telecommunications Authority issuing prior to October 31, 2005 its final
unconditional and irrevocable consent to the Contemplated Transactions (or its
confirmation that such consent is not required). The execution of this document
shall not prejudice the rights arising under or constitute a waiver of any of
the provisions contained within the Subscription Agreement, by any of the
parties thereto.
EXECUTED and DELIVERED AS )
AS A DEED for and on behalf of )
ALFA TELECOM TURKEY LIMITED )
by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
)
by its duly constituted attorney-in-fact )
Attorney /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Witness: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇ ▇▇▇▇▇ ▇▇▇
-----------------------------
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------
EXECUTED and DELIVERED AS )
AS A DEED for and on behalf of )
CUKUROVA FINANCE )
INTERNATIONAL LIMITED )
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Cetinalp )
)
by its duly constituted attorney-in-fact )
Attorney /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Cetinalp
------------------------------------
Witness: ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
-----------------------------
-----------------------------
EXECUTED and DELIVERED AS )
AS A DEED for and on behalf of )
CUKUROVA TELECOM )
HOLDINGS LIMITED )
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Cetinalp )
)
by its duly constituted attorney-in-fact )
Attorney /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Cetinalp
------------------------------------
Witness: ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
-----------------------------
-----------------------------
SCHEDULE 1
RESERVED MATTERS
The following matters (the "Reserved Matters") whether taken at CTH or any
member of the CTH Group shall require the unanimous approval, confirmation, or
endorsement of the CTH Board and/or the Shareholders, as required by clauses 4
and 7.2, whether or not any such matter was specified in advance in the agenda
for the relevant board of directors or shareholders meeting.
1. STRATEGIC DECISIONS
1.1 The Business Plan and Budget.
1.2 Any acquisition or disposal of or any merger with any undertaking,
business, company or asset, or entry into any joint venture,
partnership, profit sharing agreement, collaboration or major project
(not included in the Business Plan) where the expenditure would exceed
US$25,000,000 per transaction except that, in the period before the
first anniversary of the Completion Date only, the limit will be
US$10,000,000 per transaction.
1.3 Any suspension, cessation or abandonment of any activity which exceeds
in value US$25,000,000 except that, in the period before the first
anniversary of the Completion Date only, the value shall be
US$10,000,000.
2. CORPORATE STRUCTURE
2.1 Any actual or proposed reorganisation or liquidation of any member of
the CTH Group.
2.2 Any change to the agreed management structure of the CTH Group or any
members of the senior management of any member of the CTH Group;
provided that with respect to Turkcell and its operating subsidiaries
this shall apply only to those members of senior management whose
appointment is customarily brought to the board level.
2.3 Any amendment to, or revision of the charter or equivalent
constitutional documents of any member of the CTH Group.
3. FINANCIAL FRAMEWORK
3.1 Entering into or terminating any contract, incurring or guaranteeing any
third party debt, pledging any assets, otherwise entering into any
transaction, or commencing, conducting or settling any litigation, which
in any case has or may have a financial impact in excess of (i)
US$25,000,000 with respect to Turkcell and its subsidiary undertakings,
or (ii) US$10,000,000 with respect to all other members of the CTH
Group.
3.2 Any charge in the authorised share capital of any member of the CTH
Group or any issue of any shares or securities convertible or
exchangeable into shares or options over shares or the right to
subscribe for any such shares or securities of any member of the CTH
Group.
4. CTH GROUP STRATEGY; RELATED PARTY TRANSACTIONS
4.1 (i) The appointment of any director to the board of directors or similar
body of any CTH Group Member or the selection of any person to represent
the parties at a general meeting of any CTH Group Member, or (ii) any
decision with respect to decisions or actions to be taken by the
parties' representatives on the boards of directors of, or at the
Shareholder meetings of, any CTH Group Member.
28
4.2 Any transaction or contract proposed to be entered into between any
member of the CTH Group and
(A) the Alfa Group and/or any Affiliate of Alfa and/or any other
Person directly or indirectly having a substantial financial
interest in the Alfa Group or any Affiliate of Alfa; or
(B) the Cukurova Group and/or any Affiliate of Cukurova and/or any
Person directly or indirectly having a substantial financial
interest in the Cukurova Group or any Affiliate of Cukurova.
29
SCHEDULE 2
DEED OF ADHERENCE
THIS DEED OF ADHERENCE is made on this [ ] day of [ ] 200[ ] by [ ] (the "New
Shareholder");
SUPPLEMENTAL to the Shareholders Agreement dated [ ] 200[ ], as amended from
time to time, and made between [ ] (the "Transferring Shareholder"), [ ] (the
"Non-Transferring Shareholders") and CTH (the "Company") (the "Agreement").
1. The New Shareholder hereby confirms that it has been supplied with a
copy of the Agreement and hereby covenants with each of the persons
named in the schedule to this Deed to observe, perform and be bound by
all the terms of the Agreement which are capable of applying to the New
Shareholder and which have not been performed at the date of this Deed
to the intent and effect that the New Shareholder shall be deemed with
effect from the date on which the New Shareholder is registered as a
member of the Company to be a Party to the Agreement.
2. The New Shareholder confirms that its details for clause [ ] (Notices)
are as follows: [ ] [and that it has appointed [ ]
as its process agent, with effect from the date on which the New
Shareholder is registered as a member of the Company].
3. This Deed shall be governed by and construed in accordance with English
law.
4. Subject to clause 2 above, any disputes or claims arising out of or in
connection with this Deed which cannot be settled amicably by the
Parties shall be resolved in accordance with the provisions of clause [
] of the Agreement.
EXECUTED and delivered as a deed the day and year first above written.
30
SCHEDULE 3
FORM OF DEADLOCK OPTION NOTICE
To: [Alfa Telecom Turkey Limited ("Alfa")] [Cukurova Finance International
Limited ("Cukurova")]
From: [Cukurova Finance International Limited ("Cukurova")] [Alfa Telecom
Turkey Limited (Alfa")]
Date: ___ ____________ 200_
Re: Shareholders Agreement dated ___ ___________ 200_ between Cukurova
Finance International Limited and Alfa Telecom Turkey Limited
(the "Shareholders Agreement")
1. We refer to the Agreement. Capitalised terms used but not defined in
this notice shall have the meanings ascribed to them in the Shareholders
Agreement.
2. Pursuant to clause 8.3 of the Agreement [Cukurova][Alfa] hereby issue to
[Alfa] [Cukurova] a Deadlock Option Notice and irrevocably offers to
[purchase 100% of the CTH Shares owned by [Alfa] [Cukurova]] [sell 100%
of the CTH Shares owned by [Cukurova] [Alfa]] for a price of $_____.per
CTH Share.
Sincerely,
[CUKUROVA FINANCE INTERNATIONAL LIMITED] [ALFA TELECOM TURKEY LIMITED]
By: _______________________
Name: _______________________
Title: _______________________
31
SCHEDULE 4
EXISTING INTERESTS IN TURKCELL
PERCENTAGE OF ISSUED
SHAREHOLDER NUMBER OF SHARES SHARE CAPITAL
-------------------------- ---------------- --------------------
Cukurova Holding A.S. 109,195,314,495 7.40%
Cukurova Investments N.V. 43,230,288,153 2.93%
Yapi ve Kredi Bankasi A.S. 42,807,402,352 2.90%
---------------- --------------------
Total 195,233,005,000 13.23%
32