EXHIBIT 1
STOCK PURCHASE AGREEMENT
between
NEWS AMERICA INCORPORATED
and
CABLE AND WIRELESS PLC
Dated April 19, 1998
TABLE OF CONTENTS
Page
ARTICLE I
SALE OF STOCK; CONSIDERATION
1.1. Sale by C&W . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2. Consideration for the Sale by C&W. . . . . . . . . . . . . . . . 2
ARTICLE II
THE CLOSING
2.1. Time and Place of Closing . . . . . . . . . . . . . . . . . . . . 3
2.2. Deliveries by C&W . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3. Deliveries by Buyer . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF C&W
3.1. Organization . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.2. Authority Relative to this Agreement and the Ancillary
Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.3. Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.4. Consents and Approvals; No Violation . . . . . . . . . . . . . . 5
3.5. Financial Statements; Undisclosed Liabilities . . . . . . . . . . 6
3.6. Absence of Certain Changes or Events . . . . . . . . . . . . . . 7
3.7. Legal Proceedings, etc. . . . . . . . . . . . . . . . . . . . . . 9
3.8. Fees and Commissions. . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . 9
4.1. Organization. . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.2. Authority Relative to this Agreement. . . . . . . . . . . . . . 9
4.3. Consents and Approvals; No Violation . . . . . . . . . . . . . 10
4.4. Fees and Commissions. . . . . . . . . . . . . . . . . . . . . . 10
4.5. Investment Intent. . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE V
COVENANTS OF THE PARTIES
5.1. Conduct of Business of Holdings. . . . . . . . . . . . . . . . 11
5.2. Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.3. Further Assurances . . . . . . . . . . . . . . . . . . . . . . 12
5.4. Public Statements . . . . . . . . . . . . . . . . . . . . . . . 12
5.5. Consents and Approvals. . . . . . . . . . . . . . . . . . . . . 12
[5.6. Transfer of Complus Enterprises Holding S.A. . . . . . . . . . 13
5.7. HSR Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.8 Supplements to Schedules. . . . . . . . . . . . . . . . . . . . 13
ARTICLE VI
CLOSING CONDITIONS
6.1. Conditions to Each Party's Obligations to Effect the
Transactions Contemplated Hereby. . . . . . . . . . . . . . 14
6.2. Conditions to Obligations of Buyer . . . . . . . . . . . . . . 14
6.3. Conditions to Obligations of C&W. . . . . . . . . . . . . . . 16
ARTICLE VII
TERMINATION AND ABANDONMENT
7.1. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.2. Procedure and Effect of Termination . . . . . . . . . . . . . . 18
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
8.1. Survival of Representations. . . . . . . . . . . . . . . . . . 18
8.2. Limitations on C&W Representations and Warranties;
Investigation . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.3. C&W's Indemnification of Buyer . . . . . . . . . . . . . . . . 19
8.4. Buyer's Indemnification of C&W . . . . . . . . . . . . . . . . 19
8.5. Conditions of Indemnification. . . . . . . . . . . . . . . . . 20
8.6. Cushion. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.7. Limitation of Liability. . . . . . . . . . . . . . . . . . . . 21
8.8. Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . 21
8.9. Assignment of Certain Representations, Warranties and
Indemnification Rights . . . . . . . . . . . . . . . . . . . . 21
ARTICLE IX
MISCELLANEOUS PROVISIONS . . . . . . . . . . 22
9.1. Amendment and Modification. . . . . . . . . . . . . . . . . . 22
9.2. Waiver of Compliance; Consents . . . . . . . . . . . . . . . . 22
9.3. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.4. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . 24
9.5. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . 24
9.6. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.7. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.8. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . 25
9.9. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . 25
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), dated April 19,
1998, by and between:
NEWS AMERICA INCORPORATED, a Delaware corporation ("Buyer"),
with an address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
and
CABLE AND WIRELESS PLC, a company registered under the laws of
England under the number 238525 ("C&W"), with an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
W I T N E S S E T H:
WHEREAS, (a) Navona Communications Corporation Ltd. (a direct
wholly owned subsidiary of C&W), a corporation organized under the laws of
Bermuda ("Navona"), owns (i) 10,055,739 shares of common stock, par value
USD$.01 per share ("PLD Common Stock"), of PLD Telekom Inc., a corporation
organized under the laws of Delaware ("PLD"), constituting as of April 16,
1998 approximately 30.17% of the presently issued and outstanding capital
stock of PLD (the "PLD Shares"), and (ii) 12,000 shares of common stock,
par value USD$1.00 per share, of PLD Holdings Ltd., a limited liability
company organized under the laws of Bermuda ("Holdings"), constituting 100%
of the issued and outstanding capital stock of Holdings (the "Holdings
Shares"), which is the owner of eleven percent (11%) of the outstanding
common equity interests in PeterStar Company Limited, a closed joint stock
company organized under the laws of the Russian Federation ("PeterStar");
and (b) C&W owns a warrant dated June 28, 1995, conferring on C&W the right
to purchase PLD Common Stock, a copy of which is attached hereto as Exhibit
A (the "PLD Warrant"; the PLD Warrant and the PLD Shares are collectively
referred to herein as the "Pre-Exchange PLD Interest") and
WHEREAS, C&W also owns 100 shares of common stock, par value ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ Guilders per share, of CommStruct International Byelorussia
B.V., a closed limited liability company organized under the laws of The
Netherlands ("CIBBV"), constituting 100% of the issued and outstanding
capital stock of CIBBV (the "CIBBV Shares"); and
WHEREAS, C&W and PLD are agreeing (the "CIBBV Exchange
Agreement"), substantially simultaneously with the execution and delivery
of this Agreement, on the terms and conditions upon which C&W will exchange
the CIBBV Shares, together with certain indebtedness owed to C&W by CIBBV,
with PLD for 500,000 newly issued shares of PLD Common Stock (the "CIBBV
Exchange Shares"), which exchange will be completed prior to the
consummation of the transactions contemplated by this Agreement; and
WHEREAS, C&W desires to sell and transfer, or to cause the sale
and transfer, to Buyer, and Buyer desires to purchase, the Pre-Exchange PLD
Interest and the CIBBV Exchange Shares (collectively, the "PLD Interest")
and the Holdings Shares, as more specifically provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties, intending to
be legally bound, hereby agree as follows:
ARTICLE I
SALE OF STOCK; CONSIDERATION
1.1. Sale by C&W. Upon the terms and subject to the
satisfaction of the conditions contained in this Agreement and the delivery
to C&W of good title to the CIBBV Exchange Shares, C&W agrees to sell,
assign, transfer and deliver to Buyer the CIBBV Exchange Shares and the PLD
Warrant and to cause Navona to sell, assign, transfer and deliver the PLD
Shares and the Holdings Shares to Buyer, and Buyer agrees to purchase and
acquire, (a) all of the right, title and interest of C&W in and to the
CIBBV Exchange Shares and the PLD Warrant and (b) all of the right, title
and interest of Navona in and to the PLD Shares and the Holdings Shares.
1.2. Consideration for the Sale by C&W. (a) On the Closing
Date (as hereinafter defined) and upon the terms and subject to the
satisfaction of the conditions contained in this Agreement, in
consideration of the aforesaid sale, assignment, transfer and delivery of
the PLD Interest and the Holdings Shares, Buyer will pay, or cause to be
paid, to C&W or its written designee, by interbank transfer of immediately
available funds an amount equal to Eighty Million United States dollars
(USD$80,000,000) (the "Purchase Price").
ARTICLE II
THE CLOSING
2.1. Time and Place of Closing. Subject to the terms and
conditions of this Agreement, the consummation of the transaction
contemplated hereby (the "Closing") shall take place at the offices of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ on the third business day after Buyer shall have delivered to
C&W written notice that the conditions set forth in Section 6.2 hereof have
been satisfied (the "Closing Date") or at such other time and place as
shall be determined by mutual agreement of the parties.
2.2. Deliveries by C&W. At the Closing, C&W will deliver or
cause to be delivered the following to Buyer:
(a) Stock certificates representing all of the PLD Shares
and the Holdings Shares and the certificate or other instrument
representing the PLD Warrant, each duly endorsed in blank or accompanied by
duly executed instruments of transfer, together with any other documents
that are necessary to transfer to Buyer good and marketable title to the
PLD Shares, the PLD Warrant, the CIBBV Exchange Shares and the Holdings
Shares, as the case may be;
(b) the Officer's Certificate referred to in Section 6.2(f)
hereof;
(c) the Opinion of Counsel referred to in Section 6.2(g)
hereof; and
(d) such other documents, instruments and writings as are
required to be delivered by C&W at or prior to the Closing Date pursuant to
this Agreement or otherwise reasonably required in connection herewith.
2.3. Deliveries by Buyer. At the Closing, Buyer will deliver
the following to C&W:
(a) the Purchase Price by interbank transfer of immediately
available funds;
(b) the Officer's Certificate referred to in Section 6.3(c)
hereof;
(c) the Opinion of Counsel referred to in Section 6.3(d)
hereof; and
(d) such other documents, instruments and writings as are
required to be delivered by Buyer at or prior to the Closing Date pursuant
to this Agreement or otherwise reasonably required in connection herewith.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF C&W
C&W represents and warrants to Buyer as follows:
3.1. Organization. (a) C&W is a public limited company duly
organized and validly existing under the laws of England and has all
requisite power to enter into this Agreement and to dispose, or to cause
Navona to dispose, of the PLD Shares and the Holdings Shares in accordance
with this Agreement and to perform its obligations hereunder.
(b) Navona is a corporation duly organized and validly existing
under the laws of Bermuda and has all requisite power to dispose or cause
the disposition of the PLD Shares and the Holdings Shares in accordance
with this Agreement and to perform its obligations hereunder.
3.2. Authority Relative to this Agreement and the Ancillary
Agreements. C&W and Navona each has full corporate power and authority to
execute, deliver and perform its obligations under this Agreement and the
CIBBV Exchange Agreement and to perform its obligations hereunder and
thereunder. The execution and delivery of this Agreement and the CIBBV
Exchange Agreement and the performance of its obligations hereunder and
thereunder have been duly and validly authorized by C&W and Navona, and no
other corporate proceedings on the part of C&W or Navona are necessary to
authorize this Agreement or the performance of its obligations hereunder
and thereunder. This Agreement and the CIBBV Exchange Agreement have each
been duly and validly executed and delivered by C&W, and, assuming that
this Agreement and the CIBBV Exchange Agreement each constitutes a valid
and binding agreement of Buyer and each other party thereto, constitutes a
valid and binding agreement of C&W, enforceable against C&W in accordance
with its terms, except that such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to enforcement of creditors' rights generally or
general principles of equity.
3.3. Title. C&W indirectly through Navona owns the Pre-Exchange
PLD Interest and the Holdings Shares and will, upon the completion of the
sale and exchange transactions under the CIBBV Exchange Agreement, own the
CIBBV Exchange Shares, in each case free and clear of all pledges, security
interests, liens, charges, encumbrances, claims, options or limitations
affecting its ability to vote such shares or to transfer such shares to
Buyer or to exercise any other rights appurtenant thereto. Except (a) for
the PLD Interest and the Holdings Shares that are the subject of this
Agreement and (b) such agreements, contracts, instruments, arrangements or
understandings to which PLD or any of its direct or indirect subsidiaries,
but not C&W or Navona, is a party, neither C&W nor any of its direct or
indirect subsidiaries owns any shares or other equity interests in, or is a
party to any agreement, contract, instrument, arrangement or understanding
enabling a party upon notice, exercise or conversion to acquire shares or
other equity interests in, PLD or Holdings. Except as set forth in
Schedule 3.3, Holdings does not own any material assets other than its
equity interest in PeterStar and does not have any material liabilities
(for purposes of this sentence, assets or liabilities individually or in
the aggregate exceeding US$500,000 shall be deemed "material"). At the
Closing, Buyer will acquire good title to the PLD Interest and the Holdings
Shares, free and clear of all pledges, security interests, liens, charges,
encumbrances, claims, options or limitations of any nature whatsoever. At
or prior to the Closing Date all agreements between Holdings on the one
part and any direct or indirect parent of Holdings on the other part shall
have been terminated without any residual liability on the part of Holdings
thereunder. Except for this Agreement and the CIBBV Exchange Agreement and
their respective obligations thereunder, neither C&W nor Navona has
entered into any subscription, option, warrant, call, right, agreement or
understanding for the sale, delivery, assignment or transfer by C&W or
Navona of the PLD Interest, the Holdings Shares or the interest held by
Holdings directly in PeterStar.
3.4. Consents and Approvals; No Violation.
(a) Except as set forth in Schedule 3.4, neither the
execution and delivery of this Agreement and the CIBBV Exchange Agreement
by C&W, nor the sale by C&W or Navona of the PLD Interest or the Holdings
Shares pursuant to this Agreement, will (i) conflict with or result in any
breach of any provision of the Articles of Incorporation or Bylaws, or
similar charter documents, of C&W, Navona or Holdings, (ii) other than as
may be required as a result of the identity of Buyer or any of Buyer's
successors or assigns, require any consent, approval, authorization or
permit of, or filing with or notification to, any governmental or
regulatory authority to be made or obtained by C&W, Navona or Holdings,
(iii) result in a default (or give rise to any right of termination,
cancellation or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, agreement or
other instrument or obligation to which C&W, Navona or Holdings or by which
C&W, Navona or Holdings or any of their respective assets (except that no
representation or warranty is made as to any note, bond, mortgage,
indenture, license, agreement or other instrument or obligation to which
PLD, PeterStar or Belcel, but not C&W, Navona or Holdings, is a party or
by which PLD, PeterStar or Belcel, but not C&W, Navona or Holdings, are
bound) may be bound, except for such defaults (or rights of termination,
cancellation or acceleration) as to which requisite waivers or consents
have been obtained, or (iv) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to C&W, Navona or Holdings or any of
their respective assets (except that no representation or warranty is made
as to any order, writ, injunction, decree, statute, rule or regulation
applicable to PLD, PeterStar or Belcel, but not C&W, Navona or Holdings).
(b) Except as set forth in Schedule 3.4 and except for the
filings by Buyer and PLD required by Title II of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), it is not
necessary for C&W or Navona to make any declaration, filing or registration
with, or to give notice to, or to receive the authorization, consent or
approval of, any governmental or regulatory body or authority for the
consummation by C&W and Navona of the transactions contemplated hereby.
3.5. Financial Statements; Undisclosed Liabilities; Certain Tax
Matters.
(a) C&W has previously furnished to Buyer copies of
Holdings' audited (i) balance sheets as of December 31, 1997 and (ii)
related audited statements of income and retained earnings and changes in
financial position of Holdings for the fiscal year then ended, together
with the report thereon of KPMG Audit plc, independent auditors (subject,
in the case of the final signature on such audit and report, to the
information set forth in Schedule 3.5). To the Knowledge of C&W (as the
term "Knowledge" is defined in Section 8.3 hereof), such financial reports
present fairly the financial information purported to be set forth therein
as of the dates, or for the periods, described therein, all in conformity
with the accounting principles described therein.
(b) Except as set forth in Schedule 3.5, to the Knowledge
of C&W, as of the date of the Holdings balance sheet referred to in Section
3.5(a)(i) hereof, Holdings has no material liability or obligation,
secured or unsecured (whether absolute, accrued, contingent or otherwise,
and whether due or to become due), of a nature required by generally
accepted accounting principles to be reflected in a corporate balance sheet
or disclosed in the notes thereto, which is not accrued or reserved against
in the financial reports referred to in Section 3.5(a) hereof or disclosed
in the notes thereto in accordance with generally accepted accounting
principles.
3.6. Absence of Certain Changes or Events. Except as set forth
in Schedule 3.6, since the date of the financial reports referred to in
Section 3.5(a) hereof, to the Knowledge of C&W there has not been:
(a) any material adverse change in the business, prospects,
operations, properties, assets, liabilities, competition, earnings, or
condition (financial or otherwise), of Holdings or any failure by Holdings
to pay its debts when due;
(b) any event or condition of any character which, either
individually or in the aggregate, might reasonably be expected to have a
material adverse effect on the business, prospects, operations, properties,
assets, liabilities, competition, earnings or condition (financial or
otherwise), of Holdings;
(c) any damage, destruction or loss (regardless of whether
covered by insurance) that might reasonably be expected to have a material
adverse effect on the business, prospects, operation, properties, assets,
liabilities, competition, earnings, or condition (financial or otherwise),
of Holdings;
(d) any declaration, setting aside or payment of any
dividend or other distribution (whether in cash, stock, property, or any
combination of the foregoing) with respect to the capital stock of Holdings
except as specifically provided for in this Agreement;
(e) any increase in the compensation paid, payable or to
become payable by Holdings to its officers, directors or employees (other
than increases for employees in the ordinary course of business and
consistent with past practice), any hiring of new officers, directors or
employees (other than hiring of new employees in the ordinary course of
business consistent with past practice) or any increase in any bonus,
insurance, pension or other employee benefit plan, payments or arrangement
(including loans) made to, for or with any officers, directors, or
employees (other than increases for employees in the ordinary course of
business and consistent with past practice or other increases pursuant to
written employee benefit plans);
(f) any entry into, material amendment of, or termination
of, any material agreement, material commitment or material transaction by
Holdings, including, without limitation, any (i) merger, consolidation,
share exchange, acquisition or disposition of assets or stock or any
financing transaction or capital expenditure, (ii) indenture, mortgage,
note, agreement or other instrument relating to the borrowing of money
(other than intercompany accounts), (iii) partnership or joint venture
agreement, (iv) material license agreement relating to intellectual
property (other than off-the-shelf software licenses), or (v) agreement to
amend its charter or other organizational documents or any other document,
contract, agreement, arrangement, undertaking or instrument relating to any
of the foregoing;
(g) any entry into, material change to the terms or
conditions of or termination of, any license, permit franchise,
governmental approval or decree pursuant to which Holdings provides
telephony, data transmission or other telecommunications services of any
kind or character;
(h) any notes or accounts receivable or portions of notes
or accounts receivable written off by Holdings as uncollectible, other than
in the ordinary course of business and consistent with past practice;
(i) any material obligation or material liability paid
(whether absolute, accrued, contingent or otherwise), or any lien or
encumbrance in connection therewith discharged, by Holdings, other than (i)
in the ordinary course of business and consistent with past practice, or
(ii) current liabilities shown on the financial reports referred to in
Section 3.5(a) hereof and current liabilities incurred since their date;
(j) any mortgage, pledge or security interest, lien or
encumbrance created in or with respect to any property or assets, real,
personal or mixed, tangible or intangible, of Holdings;
(k) except as specifically provided for in this Agreement,
any sale, assignment, transfer, lease, dividend, distribution or other
disposition of any property or assets by Holdings other than in the
ordinary course of business; or
(l) any agreement, understanding or undertaking to do any
of the foregoing by Holdings;
provided, that the representations and warranties set forth in this Section
3.6 with respect to the business, operations, properties, assets,
liabilities, competition, earnings, or condition (financial or otherwise)
of Holdings shall not be deemed to be representations or warranties as to
the business, operations, properties, assets, liabilities, competition,
earnings, or condition (financial or otherwise) of PLD or PeterStar and for
the avoidance of doubt, the occurrence of any of the matters referred to in
(a) through (l) above in relation to PeterStar shall not be a breach of the
representations and warranties relating to Holdings set forth in (a)
through (l) above.
3.7. Legal Proceedings, etc. Except as set forth in Schedule
3.7, to the Knowledge of C&W, there are no claims, actions, or proceedings
pending or investigation pending or threatened against or relating to
Holdings before any court, governmental or regulatory authority or body
acting in an adjudicative capacity. Except as set forth in Schedule 3.7,
to the knowledge of C&W, Holdings is not subject to any outstanding
judgment, rule, order, writ, injunction or decree of any court,
governmental or regulatory authority.
3.8. Fees and Commissions. Except as previously disclosed by
C&W to Buyer in writing, no broker, finder or other person is entitled to
any brokerage fees, commissions or finder's fees in connection with the
transaction contemplated hereby by reason of any action taken by C&W. C&W
hereby covenants that it will pay to Buyer or otherwise discharge, and will
indemnify and hold Buyer harmless from and against, any and all claims or
liabilities for all brokerage fees, commissions and finder's fees (other
than as described above) incurred by reason of any action taken by C&W.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to C&W as follows:
4.1. Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware. Buyer has heretofore delivered to C&W complete and correct
copies of its Certificate of Incorporation and By-Laws as currently in
effect.
4.2. Authority Relative to this Agreement and the Buyer
Ancillary Agreements. Buyer has full power and authority to execute,
deliver and perform all obligations under this Agreement, the Asset
Exchange Agreement referred to in Section 8.8 hereof and the Director
Nomination Agreement referred to in Section 6.2(e) hereof (collectively,
the "Buyer Ancillary Agreements") and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this
Agreement and the Buyer Ancillary Agreements and the performance of its
obligations hereunder and thereunder have been duly and validly authorized
by Buyer, and no other proceedings on the part of Buyer are necessary to
authorize this Agreement or the Buyer Ancillary Agreements or to perform
its obligations hereunder or thereunder. This Agreement and the Buyer
Ancillary Agreements (in the case of the Buyer Ancillary Agreements, in the
form delivered to C&W on the date hereof) have been duly and validly
executed and delivered by Buyer, and assuming that this Agreement and each
such Buyer Ancillary Agreement to which it is a party constitutes a valid
and binding agreement of C&W or the relevant party to the Buyer Ancillary
Agreements, constitutes a valid and binding agreement of Buyer, enforceable
against Buyer in accordance with its terms, except that such enforceability
may be limited by applicable bankruptcy, insolvency, moratorium or other
similar laws affecting or relating to enforcement of creditors' rights
generally or general principles of equity.
4.3. Consents and Approvals; No Violation. (a) Except as set
forth in Schedule 4.3, neither the execution and delivery of this Agreement
nor the Buyer Ancillary Agreements by Buyer nor the purchase by the Buyer
or its permitted designee or assignee as provided in Section 9.4 hereof of
the PLD Interest and the Holdings Shares pursuant to this Agreement, or the
performance of the Buyer Ancillary Agreements, will (i) conflict with or
result in any breach of any provision of the Certificate of Incorporation
or By-Laws of Buyer, (ii) require any consent, approval, authorization or
permit of, or filing with or notification to, any governmental or
regulatory authority, or (iii) result in a default (or give rise to any
right of termination, cancellation or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, agreement,
lease or other instrument or obligation to which Buyer or any of its
subsidiaries are a party or by which any of their respective assets may be
bound, except for such defaults (or rights of termination, cancellation or
acceleration) as to which requisite waivers or consents have been obtained.
(b) Except for the filings by Buyer or its permitted
designee or assignee as provided in Section 9.4 hereof and PLD required
by Title II of the HSR Act, no declaration, filing or registration with, or
notice to, or authorization, consent or approval of any governmental or
regulatory body or authority is necessary for the consummation by Buyer of
the transactions contemplated hereby.
4.4. Fees and Commissions. No broker, finder or other person is
entitled to any brokerage fees, commissions or finder's fees in connection
with the transaction contemplated hereby by reason of any action taken by
Buyer. Buyer hereby covenants that it will pay to C&W or otherwise
discharge, and will indemnify and hold C&W harmless from and against, any
and all claims or liabilities for all brokerage fees, commissions and
finder's fees incurred by reason of any action taken by Buyer.
4.5. Investment Intent. Buyer is purchasing the PLD Interest for
its own account and not with a view towards the public sale or distribution
thereof in violation of the Securities Act.
ARTICLE V
COVENANTS OF THE PARTIES
5.1. Conduct of Business of Holdings. Except as described in
Schedule 5.1, during the period from the date of this Agreement to the
Closing Date, C&W covenants that Holdings will conduct its business and
operations according to its ordinary and usual course of business
consistent with past practice. Without limiting the generality of the
foregoing, and, except as contemplated in this Agreement or as described in
Schedule 5.1, prior to the Closing Date, without the prior written consent
of Buyer, C&W will not permit Holdings to:
(a) (i) create, incur or assume any amount of indebtedness
for money borrowed, other than in the ordinary course of business, or (ii)
assume, guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations of any
other person except in the ordinary course of business; provided, Holdings
may endorse negotiable instruments in the ordinary course of business;
(b) declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any combination
thereof) in respect of its capital stock, or redeem or otherwise acquire
any shares of its capital stock;
(c) enter into any agreement, commitment or transaction
(including without limitation any borrowing, capital expenditure or capital
financing), except agreements, commitments or transactions in the ordinary
course of business or as contemplated herein; or
(d) enter into any contract, agreement, commitment or
arrangement, whether written or oral, with respect to any of the
transactions set forth in the foregoing paragraphs (a) through (c).
5.2. Expenses. Whether or not the transactions contemplated
hereby are consummated, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be borne by
the party incurring such costs and expenses.
5.3. Further Assurances. Subject to the terms and conditions
of this Agreement, each of the parties hereto will use all reasonable
efforts to take, or cause to be taken, all action, and to do, or cause to
be done, all things reasonably necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the sale,
assignment, transfer and delivery by C&W or Navona to Buyer or PLD of the
PLD Interest and the Holdings Shares and the interests in PLD and PeterStar
represented thereby, pursuant to this Agreement. From time to time after
the date hereof, without further consideration, C&W and Navona will, at
their own expense, execute and deliver such documents to Buyer or PLD as
Buyer or PLD may reasonably request in order more effectively to vest in
Buyer or PLD, as the case may be, good title to the PLD Interest and the
Holdings Shares. From time to time after the date hereof, without further
consideration, Buyer will, at its own expense, execute and deliver such
documents to C&W or PLD as C&W or PLD may reasonably request in order more
effectively to consummate the sale, assignment, transfer and delivery of
the PLD Interest and the Holdings Shares pursuant to this Agreement.
5.4. Public Statements. The parties shall consult with each
other prior to issuing any public announcement, statement or other
disclosure with respect to this Agreement or the transactions contemplated
hereby and shall not issue any such public announcement, statement or other
disclosure prior to such consultation. Notwithstanding the foregoing, the
parties may make public announcements, statements or other disclosures with
respect to this Agreement and the transactions contemplated hereby without
such consultation to the extent and under the circumstances in which the
parties are legally compelled (by deposition, interrogatory, request for
documents, subpoena, civil investigative demand or similar process, or by
order of a court or tribunal of competent jurisdiction) to do so, or in
order to comply with applicable rules or requirements of any stock
exchange, government department or agency or other regulatory authority, or
as required by any securities law or regulation or other legal requirement,
in any such case in circumstances where such consultation would not be
practicable.
5.5. Consents and Approvals.
(a) C&W and Buyer shall (in the case of C&W, in relation to
the consents and approvals set forth in Schedule 3.4 and any other consents
and approvals required to be obtained by C&W and, in the case of Buyer, in
relation to the consents and approvals set forth in Schedule 4.3 and any
other consents and approvals required to be obtained by Buyer) (i)
promptly prepare and file all necessary documentation, (ii) effect all
necessary applications, notices, petitions and filings and execute all
agreements and documents, (iii) use all reasonable efforts to obtain all
necessary permits, consents, approvals and authorizations of all
governmental bodies (including, in the case of Buyer, Buyer's and PLD's
obligations to file with the United States Federal Trade Commission and the
United States Department of Justice any notifications required to be filed
under the HSR Act and the rules and regulations promulgated thereunder with
respect to the transactions contemplated hereby) and (iv) use all
reasonable efforts to obtain all necessary permits, consents, approvals and
authorizations necessary or advisable to consummate the transactions
contemplated by this Agreement or required by the terms of any note, bond,
mortgage, indenture, deed of trust, license, franchise, permit, concession,
contract, lease or other instrument to which, in the case of C&W, C&W,
Holdings or Navona is a party or by which any of them are bound or, in the
case of Buyer, Buyer or any of its subsidiaries are a party or by which
any of them is bound. Each of Buyer and C&W will provide reasonable
assistance to the other in order to obtain the consents and approvals
referred to above. Each of C&W and Buyer shall have the right to review,
and be consulted in advance to the extent practicable, as to all
characterizations of the information relating to the transactions
contemplated by this Agreement which appear in any filing made in
connection with the transactions contemplated hereby. The parties hereto
agree that they will consult with each other with respect to the obtaining
of all such necessary permits, consents, approvals and authorizations of
all third parties and governmental bodies.
(b) The parties hereto shall consult with each other prior
to proposing or entering into any stipulation or agreement with any foreign
or United States governmental authority or agency or any third party in
connection with any foreign or United States governmental consents and
approvals legally required for the consummation of the transactions
contemplated hereby and shall not propose or enter into any such
stipulation or agreement without the other party's prior written consent,
which consent shall not be unreasonably withheld.
5.6. Transfer of Complus Enterprises Holding S.A. On, or prior
to the Closing, C&W shall have taken all action necessary to ensure that
Holdings does not, directly or indirectly, own any shares in Complus
Enterprises Holding S.A. ("Complus"). Buyer acknowledges that substantially
simultaneously with the transfer of the shares in Complus held by Holdings
as contemplated by this Section 5.6, Holdings will (a) assign to the person
to which such shares in Complus are transferred (the "Complus Transferee")
all right title and interest Holdings has in the Share Sale and Purchase
Agreement dated December 14, 1994 between Complus Holding S.A. and Holdings
(the "December 1994 Agreement"), pursuant to which Holdings Purchased 688
shares in Complus; and (b) irrevocably undertake to exercise its power
under Clause 4.3 of the Settlement Agreement (the "Settlement Agreement")
dated May 30, 1997 between Complus, Complus Holding, S.A. and Holdings to
direct that any amounts payable by Complus Holding, S.A. in respect of any
indebtedness or other liabilities of or incurred by Complus shall be paid
to the Complus Transferee or such other person as the Complus Transferee
may direct. Notwithstanding the provisions of clauses (a) and (b) of the
immediately preceding sentence, C&W undertakes that such assignment and
undertaking will exclude the full benefit of (i) the tax indemnity set
forth in Section 9 of the December 1994 Agreement (to the extent that any
tax liability therein referred to is imposed on or otherwise becomes a
liability of Holdings) and (ii) the indemnity in favor of Holdings provided
in Section 4.3 of the Settlement Agreement.
5.7. HSR Act. Buyer will promptly and in any event within 5
Business Days (as defined herein) after the date hereof make such filings
as may be required to be made by it under the HSR Act in connection with
the transactions contemplated hereby.
5.8. Supplements to Schedules. C&W, on the one hand, and Buyer,
on the other hand, shall have the right from time to time prior to the
Closing to supplement or amend its Schedule with respect to any matter
hereafter arising which if existing or known at the date of this Agreement
would have been required to be set forth or described in such Schedule.
Any such supplemental or amended disclosure shall be deemed to have cured
any breach of any representation or warranty made in this Agreement for all
purposes of this Agreement, except that notwithstanding the immediately
preceding clause no such supplemental or amended disclosure shall be deemed
to have cured any such breach made in this Agreement and to have been
disclosed as of the date of this Agreement for purposes of determining
whether or not the conditions set forth in Article VI hereof have been
satisfied.
5.9. Completion of Ancillary Agreements. Each party will use
reasonable efforts to take or cause to be taken, all action, and do or
cause to be done all things reasonably necessary or advisable to perform
their respective obligations under, in the case of C&W, the CIBBV Exchange
Agreement and, in the case of Buyer, the Buyer Ancillary Agreements, each
in the form as executed on the date hereof.
ARTICLE VI
CLOSING CONDITIONS
6.1. Conditions to Each Party's Obligations to Effect the
Transactions Contemplated Hereby. The respective obligations of each party
to effect the transactions contemplated hereby shall be subject to the
fulfillment at or prior to the Closing Date of the following conditions:
(a) The waiting period under the HSR Act applicable to the
consummation of the transactions contemplated hereby shall have expired or
been terminated;
(b) No preliminary or permanent injunction or other order
or decree by any federal, state, local or foreign court which prevents the
consummation of the transactions contemplated hereby shall have been issued
and remain in effect (each party agreeing to use its reasonable best
efforts to have any such injunction, order or decree lifted) and no
statute, rule or regulation shall have been enacted by any federal, state,
local, or foreign government or governmental agency which prohibits the
consummation of the transactions contemplated hereby;
(c) The CIBBV Exchange Shares shall have been issued and
delivered to C&W by PLD in accordance with the terms of the CIBBV Exchange
Agreement; and
(d) All foreign and United States federal, state and local
government consents and approvals required for the consummation of the
transactions contemplated hereby (including, without limitation, the
consent of the Bermuda Monetary Authority) shall have become Final Orders
(a "Final Order" means a final order after all opportunities for rehearing
are exhausted (whether or not any appeal thereof is pending)) and shall not
be subject to terms and conditions.
6.2. Conditions to Obligations of Buyer. The obligation of
Buyer to effect the transactions contemplated by this Agreement shall be
subject to the fulfillment at or prior to the Closing Date of the following
additional conditions:
(a) There shall not have occurred and be continuing any
event or events, either individually or in the aggregate, which would have
a material and adverse effect on the property, business, operations,
prospects or condition (financial or otherwise) of PLD or PeterStar;
(b) C&W shall have performed and complied with in all
material respects the covenants and agreements contained in this Agreement
required to be performed and complied with by it at or prior to the Closing
Date, and the representations and warranties of C&W set forth in this
Agreement, giving effect to the amendment or supplement of any schedule
pursuant to Section 5.8 hereof, shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing Date as
though made at and as of the Closing Date;
(c) Buyer shall have received stock certificates
representing all of the PLD Shares, the CIBBV Exchange Shares and the
Holdings Shares and the certificate or other instrument representing the
PLD Warrant, each duly endorsed in blank or accompanied by duly executed
instruments of transfer, together with any other documents that are
necessary to transfer to Buyer good and marketable title to the PLD Shares,
the CIBBV Exchange Shares, the PLD Warrant and the Holdings Shares, as the
case may be;
(d) The conditions to closing under the Asset Exchange
Agreement (as defined in Section 8.8 hereof) annexed hereto as Schedule 6.2
shall have been satisfied or waived by Buyer;
(e) Buyer and PLD shall have executed and delivered a
Director Nomination Agreement dated April 19, 1998, containing terms and
conditions substantially as set forth in the draft thereof previously
delivered by Buyer to C&W, and such agreement shall be in full force and
effect;
(f) Buyer shall have received a certificate from an
authorized officer of C&W, dated the Closing Date, to the effect that to
the officer's knowledge, the conditions set forth in Section 6.2 (b) have
been satisfied; and
(g) Buyer shall have received opinions from counsel to C&W,
dated the Closing Date and satisfactory in form and substance to Buyer and
its counsel,
(A) substantially to the effect that:
(i) C&W is a corporation duly organized and validly
existing under the laws of the jurisdiction of its organization and has the
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby; and the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by requisite corporate action
taken on the part of C&W;
(ii) this Agreement has been executed and delivered by
C&W and is a valid and binding obligation of C&W, enforceable against it in
accordance with its terms, except (A) that such enforcement may be subject
to bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights, and (B) that the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to certain equitable defenses and to the discretion
of the court before which any proceeding therefore may be brought;
(iii) C&W, by reason of delivery of certificates for
or other instruments representing the PLD Shares in the name of Buyer, will
cause Buyer to own such shares free and clear of any adverse claim (as
defined in Article 8 of the Uniform Commercial Code as in effect in the
State of New York) as of the Closing date; and
(B) in respect of Bermuda law, in relation to the Holdings
Shares, an opinion customary for Bermuda counsel to give in
relation to the legal title obtained by the person registered in
the share register of a company incorporated in Bermuda
Such opinions may expressly rely as to matters of fact upon
certificates furnished by C&W and appropriate officers and directors of
each of PLD, Holdings and PeterStar and by public officials.
(h) Buyer shall have received a copy of a compliance
certificate from the Registrar of Companies of Bermuda confirming that
Holdings is not in default of any filing or fees due to be made to the
Bermuda Government, dated as of a date within 5 Business Days prior to the
Closing Date.
6.3. Conditions to Obligations of C&W. The obligations of C&W
to effect the transaction contemplated by this Agreement shall be subject
to the fulfillment at or prior to the Closing Date of the following
additional conditions:
(a) C&W shall have received the Purchase Price;
(b) Buyer shall have performed and complied with in all
material respects the covenants and agreements contained in this Agreement
required to be performed and complied with by it at or prior to the Closing
Date, and the representations and warranties of Buyer set forth in this
Agreement, giving effect to the amendment or supplement of any schedule
pursuant to Section 5.8 hereof, shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing Date as
though made at and as of the Closing Date;
(c) C&W shall have received a certificate from an
authorized officer of Buyer, dated the Closing Date, to the effect that to
the officer's knowledge, the conditions set forth in Section 6.3(b) have
been satisfied; and
(d) C&W shall have received an opinion from Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to Buyer, dated the Closing Date
and satisfactory in form and substance to C&W and its counsel,
substantially to the effect that:
(i) Buyer is a corporation organized and in good
standing under the laws of the State of Delaware and has the power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby; and the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by requisite action taken on the part of Buyer; and
(ii) this Agreement has been executed and delivered by
Buyer and is a valid and binding obligation of Buyer, enforceable against
it in accordance with its terms, except (A) that such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights, and
(B) that the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to certain equitable defenses and to the
discretion of the court before which any proceeding therefore may be
brought.
As to any matter contained in such opinion which involves the
laws of any jurisdiction other than the Federal laws of the United States
or the laws of the State of New York, such counsel may rely upon opinions
of counsel admitted in such other jurisdictions. Any opinions relied upon
by such counsel as aforesaid shall be delivered together with the opinion
of such counsel. Such opinion may expressly rely as to matters of fact
upon certificates furnished by Buyer and appropriate officers and directors
of Buyer and by public officials.
ARTICLE VII
TERMINATION AND ABANDONMENT
7.1. Termination.
(a) This Agreement may be terminated at any time prior to
the Closing Date, by mutual written consent of Buyer and C&W.
(b) This Agreement may be terminated by Buyer, on the one
hand, or C&W, on the other hand, if the transactions contemplated hereby
shall not have been consummated on or before June 30, 1998, provided, that
the right to terminate this Agreement pursuant to this Section 7.1(b) shall
not be available to any party whose failure to perform any of its covenants
or obligations under this Agreement has been the cause of or resulting in
the failure of the transactions contemplated by this Agreement to occur on
or prior to the aforesaid date.
(c) This Agreement may be terminated by either Buyer, on
the one hand, or C&W, on the other hand, if (i) any governmental or
regulatory body, the consent of which is a condition to the obligations of
C&W and Buyer to consummate the transactions contemplated hereby, shall
have determined not to grant its consent and all appeals of such
determination shall have been taken and have been unsuccessful, or (ii) any
court of competent jurisdiction shall have issued an order, judgment or
decree permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated hereby and such order, judgment or decree shall
have become final and nonappealable.
(d) This Agreement may be terminated by Buyer, on the one
hand, or C&W, on the other hand, if there has been a material violation or
breach of any agreement, representation or warranty contained in this
Agreement which violation or breach has not been waived by the non-
breaching party (it being agreed that the failure of Buyer to comply with
its undertaking contained in Section 5.7 hereof shall be deemed a material
breach of this Agreement).
7.2. Procedure and Effect of Termination. In the event of
termination of this Agreement and abandonment of the transactions
contemplated hereby by either or both of the parties pursuant to Section
7.1, written notice thereof shall forthwith be given by the terminating
party to the other party and this Agreement shall terminate and the
transactions contemplated hereby shall be abandoned, without further action
by any of the parties hereto without prejudice to any claims of a party to
this Agreement arising prior to the date of such termination in respect of
any breach of any representation, warranty or agreement contained in this
Agreement and provided that (a) the provisions of Sections 5.4 and Article
IX (except for section 9.4) hereof shall survive such termination, and (b)
that regardless of such termination the provisions of Article VIII hereof
shall continue with respect to any such claims. If this Agreement is
terminated as provided herein all filings, applications and other
submissions made pursuant to this Agreement, to the extent practicable,
shall be withdrawn from the agency or other person to which they were made.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
8.1. Survival of Representations. The representations and
warranties set forth in Articles III and IV of this Agreement (including in
the schedules delivered pursuant thereto) shall survive the Closing until
one (1) year after the Closing.
8.2. Limitations on C&W Representations and Warranties;
Investigation. C&W has not made in this agreement or otherwise, and
nothing in this Agreement shall be construed to be, a representation or
warranty of any nature in relation to PLD, any of its subsidiaries or
affiliates (including PeterStar), or Belcel, or the past, current or future
property, business, operations, prospect or condition (financial or
otherwise) of PLD, PeterStar or Belcel and Buyer confirms that it has not
entered into this Agreement or performed its obligations under this
Agreement in reliance on any such representation or warranty by C&W.
8.3. C&W's Indemnification of Buyer. Subject to the conditions
of this Article VIII, C&W hereby agrees that it shall indemnify, defend and
hold harmless Buyer and any parent, subsidiary and affiliate of Buyer
(collectively, the "Buyer Group") from and against all demands, claims,
actions or causes of action, assessments, losses, damages, liabilities,
costs and expenses, including, without limitation, interest, penalties and
reasonable attorneys' fees and expenses (collectively, "Damages"), asserted
against, resulting to, imposed upon or incurred by any of the Buyer Group,
directly or indirectly, arising out of or resulting from a breach of any
representation, warranty or agreement of C&W contained in or made pursuant
to this Agreement or any facts or circumstances constituting such a breach
(collectively, "Buyer's Indemnifiable Claims"); provided, however, that the
indemnification obligation of C&W with respect to any breach of any of the
representations or warranties made by C&W in this Agreement shall arise
only in the event that C&W had knowledge of such breach on or before the
Closing. For purposes of this Agreement, "Knowledge" of C&W shall mean the
knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (collectively,
the "Designated Persons"). C&W represents and warrants that the Designated
Persons are the only current management personnel of C&W or Holdings who
have substantial executive, management, or financial responsibilities for
Holdings who would be reasonably likely to be aware of facts or
circumstances that could cause a representation or warranty made by C&W in
this Agreement to be false in any material respect.
8.4. Buyer's Indemnification of C&W. Subject to the conditions
of this Article VIII, Buyer hereby agrees that it shall indemnify, defend
and hold harmless C&W and any parent, subsidiary and affiliate of C&W
(collectively, the "C&W Group") from and against all Damages asserted
against, resulting to, imposed upon or incurred by any of the C&W Group,
directly or indirectly, arising out of or resulting from a breach of any
representation, warranty or agreement of Buyer contained in or made
pursuant to this Agreement or any facts or circumstances constituting such
a breach ("C&W Indemnifiable Claims"; C&W's Indemnifiable Claims and
Buyer's Indemnifiable Claims are collectively referred to herein as the
"Indemnifiable Claims"); provided, however, that the indemnification
obligation of Buyer with respect to any breach in any of the
representations or warranties made by Buyer in this Agreement shall arise
only in the event that Buyer had knowledge of such breach on or before the
Closing.
8.5. Conditions of Indemnification. The obligations and
liabilities of C&W under Section 8.3 or Buyer under Section 8.4,
respectively, with respect to Indemnifiable Claims resulting from the
assertion of liability by third parties shall be subject to the following
terms and conditions:
(a) The member of the C&W Group or the Buyer Group, as the
case may be, asserting the existence of an Indemnifiable Claim (the
"Indemnified Party") will give notice of any such Indemnifiable Claim to
the party from whom Indemnification is sought (the "Indemnifying Party"),
and the Indemnifying Party shall undertake the defense thereof by
representation of their choosing, and will consult with the Indemnified
Party concerning such defense during the course thereof.
(b) In the event that the Indemnifying Party within a
reasonable time after notice of any Indemnifiable Claim, fails to defend,
the Indemnified Party against which such Indemnifiable Claim has been
asserted will (upon further notice to the Indemnifying Party) have the
right to undertake the defense, compromise or settlement of such
Indemnifiable Claim on behalf of and for the account and risk of the
Indemnifying Party.
(c) Anything in this Section 8.5 to the contrary
notwithstanding, (i) if there is a reasonable probability that an
Indemnifiable Claim may materially and adversely affect the Indemnified
Party other than as a result of money damages or other money payments (for
example, as a result of injunctive or other equitable relief), the
Indemnified Party shall have the right to defend, compromise or settle such
Indemnifiable Claim provided, that the Indemnifying Party shall not be
bound by any determination, compromise or settlement of any such
Indemnifiable Claim without its consent, which shall not unreasonably be
withheld, and (ii) the Indemnifying Party shall not, without the
Indemnified Party's written consent, settle or compromise any Indemnifiable
Claim or consent to entry of any judgment in respect thereof unless (A) the
Indemnifying Party delivers to the Indemnified Party in advance its written
agreement satisfactory to the Indemnified Party which provides that amounts
paid and incurred or to be incurred by the Indemnified Party in connection
with such Indemnifiable Claim shall be repaid promptly by the Indemnifying
Party to the Indemnified Party (subject to the limitations of this Article
VIII), and (B) such settlement, compromise or consent includes as an
unconditional term thereof the giving by the claimant or the plaintiff to
the Indemnified Party a release from all liability in respect to such
Indemnifiable Claim.
8.6. Cushion. The provisions for indemnity contained in Section
8.3 and Section 8.4 hereof shall only be effective with respect to an
Indemnifiable Claim (or, if more than one Indemnifiable Claim is asserted,
with respect to all Indemnifiable Claims) to the extent the amount (or
aggregate amount, in the case of more than one Indemnifiable Claim) of
damages sustained in connection therewith exceeds Three Hundred Thousand
dollars (USD$300,000), but to the extent that the amount or amounts of
damages in respect of Indemnifiable Claims exceeds $300,000, the indemnity
provisions hereunder shall apply to all such damages, without regard to the
$300,000 level.
8.7. Limitation of Liability. Anything in this Agreement to the
contrary notwithstanding, the liability of an Indemnifying Party to
indemnify an Indemnified Party against any damages sustained in connection
with any Indemnifiable Claim shall be limited to Indemnifiable Claims as to
which written notice shall have been given to the Indemnifying Party on or
prior to the earlier of the first anniversary date of the Closing Date or
public release of audited financials of PLD or PeterStar, as the case may
be, covering the fiscal year ended December 31, 1998, whether or not the
Indemnified Party has actually settled or incurred any expense with respect
to such Damages. Furthermore, anything in this Agreement to the contrary
notwithstanding, (a) the liability of C&W pursuant to this Article VIII for
all claims for indemnification or damages arising under this Agreement,
taken together with any liability that C&W may have for indemnification or
damages arising under the CIBBV Exchange Agreement, shall be limited to the
Purchase Price received by C&W and (b) the liability of Buyer pursuant to
this Article VIII shall be limited to twenty-five percent (25%) of the
Purchase Price.
8.8. Remedies Cumulative. The remedies provided herein shall be
cumulative and shall not preclude the assertion by Buyer of any other
rights or the seeking of any other remedies against the other party, as the
case may be, provided, however, that all claims for Damages under this
Agreement shall be governed by the provisions of this Article VIII, and
provided further, that the cushion provided in Section 8.6 hereof and the
limitation of liability provided in Section 8.7 hereof shall also apply to
all other liabilities arising out of the transactions contemplated hereby
but grounded in a legal or equitable theory other than a breach of
representation, warranty or agreement set forth in this Agreement.
8.9. Assignment of Certain Representations, Warranties and
Indemnification Rights. C&W hereby (a) acknowledges that pursuant to an
Asset Exchange Agreement, by and between Buyer and PLD (the "Asset Exchange
Agreement"), and subject to the sale, assignment, transfer and delivery of
the Holdings Shares from C&W pursuant to this Agreement, Buyer will,
substantially simultaneously with the purchase of the Holdings Shares as
described in Section 1.1 hereof, sell, assign, transfer and deliver to PLD,
and PLD will acquire from Buyer, all of the right, title and interest
acquired by Buyer hereunder in and to the Holdings Shares and (b) agrees
that its representations, warranties and agreements made in this Agreement
with respect to the Holdings Shares, and Buyer's indemnification rights
under this Article VIII, may be assigned by Buyer to the benefit of PLD,
and that PLD shall have the right to rely upon such representations,
warranties and agreements, and to enforce such indemnification rights
without any recourse to Buyer, as fully as if it were a party to this
Agreement.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1. Amendment and Modification. Subject to applicable law,
this Agreement may be amended, modified or supplemented only by written
agreement signed by all of the parties hereto.
9.2. Waiver of Compliance; Consents. Except as otherwise
provided in this Agreement, any failure of any of the parties to comply
with any obligation, covenant, agreement or condition herein may be waived
by the party entitled to the benefits thereof only by a written instrument
signed by the party granting such waiver, but such waiver shall not operate
as a waiver of, or estoppel with respect to, any subsequent or other
failure.
9.3. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed effectively given upon personal
delivery to the party to be notified, on the next Business Day after
delivery to an internationally recognized overnight courier service, upon
confirmation of receipt of a facsimile transmission, or five days after
deposit with the United States Post Office or the Royal Mail, by registered
or certified mail (return receipt requested), postage prepaid, to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice; provided that notices of a change of
address shall be effective only upon receipt thereof):
(a) If to C&W, to:
Cable and Wireless plc
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Company Secretary
(with a copy to:
Cleary, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇ House
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Shutter
(b) If to Buyer, to:
News America Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
(with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.)
(c) In the case of notices given to C&W or Buyer, a copy
thereof shall simultaneously be given to PLD at:
PLD Telekom Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
9.4. Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto
and their respective assigns permitted in accordance with this Section 9.4,
but neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any party hereto, including by operation of
law without the prior written consent of the other party, nor is this
Agreement intended to confer upon any other person except the parties
hereto any rights or remedies hereunder; provided, however, that (a) Buyer
will have the right, at any time prior to the sixth business day following
the date hereof, to designate in writing, in accordance with applicable
law, one of its directly or indirectly wholly owned subsidiaries, or a
limited liability company or other organization all of the membership
interests in which are owned, directly or indirectly, by Buyer, to
purchase, in whole or in part, the PLD Interest and the Holdings Shares
on the terms set out in this Agreement, and Buyer shall remain jointly and
severally liable with its designee under this Agreement following such
designation; provided, however, that no such designation shall be permitted
if as a result thereof any consent, approval, authorization or permit of,
or filing with or notification to, any governmental or regulatory
authority, other than as specified on Schedule 4.3 hereto, as in effect on
the date hereof, would be required, and (b) certain representations,
warranties and agreements, and indemnification rights of Buyer be assigned
to PLD as set forth in Section 8.9 hereof.
9.5. Confidentiality. Each of the Parties hereto will hold, and
will use its reasonable, good faith efforts to cause its respective
shareholders, partners, members, directors, officers, employees,
accountants, counsel, consultants, agents and financial or other advisors
(collectively "Agents") to hold, in confidence all information (whether
oral or written), including this Agreement and the documents contemplated
herein, concerning the transactions contemplated by this Agreement
furnished to such Party by or on behalf of any other Party in connection
with such transactions, unless legally compelled (by deposition,
interrogatory, request for documents, subpoena, civil investigative demand
or similar process, or by order of a court or tribunal of competent
jurisdiction), or in order to comply with applicable rules or requirements
of any stock exchange, government department or agency or other regulatory
authority, or if required by any securities law or regulation or other
legal requirement to disclose any such information or documents, and except
to the extent that such information or documents can be shown to have been
(a) previously known on a nonconfidential basis by such Party, (b) in the
public domain through no fault of such Party or (c) acquired by such Party
on a nonconfidential basis from sources not known by such Party to be bound
by any obligation of confidentiality in relation thereto. Notwithstanding
the foregoing provisions of this Section 9.5, each Party may disclose such
information to its Agents in connection with the transactions contemplated
by this Agreement or any of the other ancillary Agreements so long as such
Agents are informed by such Party of the confidential nature of such
information and are required by such Party to treat such information
confidentially, and to certain governmental agencies in connection with the
procurement of the governmental authorizations contemplated by this
Agreement. The obligation of each Party to hold any such information in
confidence shall be satisfied if such Party exercises the same care with
respect to such information as it would take to preserve the
confidentiality of its own similar information. If this Agreement is
terminated, each Party will, and will use its reasonable, good faith
efforts to cause its respective Agents to, destroy or deliver to the other
Party, upon request, all documents and other materials, and all copies
thereof, obtained by such Party or on its behalf from the other Party
hereto in connection with this Agreement that are subject to such
confidence.
9.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (regardless
of the laws that might otherwise govern under applicable New York
principles of conflicts of law) as to all matters, including but not
limited to matters of validity, construction, effect, performance and
remedies.
9.7. 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.
9.8. Interpretation. The article and section headings contained
in this Agreement are solely for the purpose of reference, are not part of
the agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement. As used in this Agreement, (a) the term
"person" shall mean and include an individual, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a
governmental entity or any department or agency thereof, (b) the term
"subsidiary" when used in reference to any other person shall mean any
corporation of which outstanding securities having ordinary voting power to
elect a majority of the Board of Directors of such corporation are owned
directly or indirectly by such other person, (c) the terms "affiliate" and
"parent" shall have the meanings set forth in Rule 12b-2 of the Exchange
Act, (d) the term "Business Day" shall mean any day other than a Saturday,
Sunday or other day on which banks in the State of New York are authorized
or required to be closed and (e) PLD shall not be deemed to be a subsidiary
of C&W.
9.9. Entire Agreement. This Agreement, including the documents,
schedules and certificates referred to herein, embody the entire agreement
and understanding of the parties hereto in respect of the transactions
contemplated by this Agreement. There are no restrictions, promises,
representations, warranties, covenants or undertakings, other than those
expressly set forth or referred to herein or therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such transactions.
IN WITNESS WHEREOF, C&W and Buyer have caused this agreement to
be signed by their respective duly authorized officers as of the date first
above written.
NEWS AMERICA INCORPORATED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SENIOR VICE PRESIDENT
CABLE AND WIRELESS PLC
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: DIRECTOR, GLOBAL BUSINESS
Exhibit 6.2 Certain Conditions to Closing under the Asset Exchange
Agreement
[Note: Capitalized terms used but not defined in this Schedule 6.2 have the
respective meanings given in the Asset Exchange Agreement.]
a. There shall not have occurred and be continuing any event or
events, either individually or in the aggregate, which would
have a material and adverse effect on the property,
business, operations, prospects or condition (financial or
otherwise) of PLD;
b. PLD shall have performed and complied with in all material
respects the covenants and agreements contained in the Asset
Exchange Agreement required to be performed and complied
with by it at or prior to the Closing Date thereunder, and
the representations and warranties of PLD set forth in the
Asset Exchange Agreement shall be true and correct in all
material respects as of the date of the Asset Exchange
Agreement and as of the Closing Date thereunder as though
made at and as of the Closing Date, and Venture shall have
received a certificate to that effect signed by authorized
officers of PLD;
c. The common stock of PLD shall be quoted on The Nasdaq Stock
Market, and no action shall have been taken or shall be
pending or threatened in respect of the delisting of the
common stock of PLD from eligibility for such quotation;
d. If required by the rules of The National Association of
Securities Dealers, Inc. in respect of the issuance of the
New PLD Shares, the stockholders of PLD shall have duly
approved the issuance of such shares under the CIBBV
Exchange Agreement and the C&W Stock Purchase Agreement,
which approval shall not have been rescinded and shall be in
full force and effect;
e. PLD shall have received the consent of its bondholders
pursuant to the Indentures to operate in Belarus;
f. Venture shall have received a certificate from an authorized
officer of PLD, dated the Closing Date, to the effect that
to the officer's knowledge, the conditions set forth in the
foregoing paragraphs a. and b. have been satisfied; and
g. Venture shall have received an opinion from _________,
counsel to PLD, dated the Closing Date and satisfactory in
form and substance to Venture and its counsel, substantially
to the effect that:
(1) PLD is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has the corporate power and authority to execute and deliver the
Asset Exchange Agreement and to consummate the transactions
contemplated hereby; and the execution and delivery of the Asset
Exchange Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by requisite corporate
action taken on the part of PLD;
(2) the Asset Exchange Agreement has been executed and
delivered by PLD and is a valid and binding obligation of the PLD
enforceable against it in accordance with its terms, except (A) that
such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights, and (B) that the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to certain equitable defenses and to the
discretion of the court before which any proceeding therefore may be
brought; and
(3) the issuance and sale of New PLD Shares to Venture
pursuant to the Asset Exchange Agreement are not required to be
registered under the Securities Act.