EXHIBIT 5
CONFORMED COPY
Dated 18 July 2003
MILLICOM TELECOMMUNICATIONS S.A.
and
MILLICOM INTERNATIONAL CELLULAR S.A.
and
DEUTSCHE BANK AG LONDON
SUBSCRIPTION AGREEMENT
relating to
SEK2,556,000,000 5.00 per cent.
Fixed and Additional Guaranteed Rate Secured Mandatory Exchangeable Notes
due 2006
issued by
Millicom Telecommunications S.A.
exchangeable for Series B shares in Tele2 AB
and guaranteed by
Millicom International Cellular S.A.
Linklaters
This Agreement is made on 18 July 2003 between:
(1) MILLICOM TELECOMMUNICATIONS S.A., a limited company incorporated in the
Grand Duchy of Luxembourg, registered with the Register of Commerce and
Companies in Luxembourg under number B 64899 and whose registered
office is at ▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (▇▇▇ "Issuer");
(2) MILLICOM INTERNATIONAL CELLULAR S.A., a public limited company
incorporated in the Grand Duchy of Luxembourg, registered with the
Register of Commerce and Companies in Luxembourg under number B 40630
and whose registered office is at ▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ (the "Guarantor); and
(3) DEUTSCHE BANK AG LONDON ("Deutsche Bank").
WHEREAS:
(A) The parties to this Agreement wish to record the arrangements agreed
between them in relation to an issue by the Issuer of SEK2,556,000,000
5.00 per cent. Fixed and Additional Rate Guaranteed Secured Mandatory
Exchangeable Notes due 2006 (the "Notes") guaranteed by the Guarantor,
which expression where the context so admits shall include the
temporary global note (the "Temporary Global Note") and the global note
(the "Global Note") replacing the Temporary Global Note to be delivered
in respect of them), in each case exchangeable for fully-paid Series B
shares of nominal value SEK5 each of Tele2 AB (the "Shares"). The
definitive Notes if required to be issued will be in bearer form in the
denomination of SEK14,250 with coupons attached.
(B) The Notes will be constituted by a Trust Deed in the agreed form
expected to be dated 7 August 2003 (the "Trust Deed") between the
Issuer, the Guarantor and Deutsche Trustee Company Limited as trustee
(the "Trustee") and will have the benefit of security contained in the
Trust Deed over, inter alia, a stock lending agreement to be dated 7
August 2003 (the "Stock Lending Agreement"). Payments and other
functions in respect of the Notes will be made or performed on behalf
of the Issuer and the Guarantor by agents appointed under a paying and
exchange agency agreement in the agreed form expected to be dated 7
August 2003 (the "Agency Agreement") between the Issuer, the Guarantor,
the Trustee and the agents named therein (the "Agents"). The Notes will
also have the benefit of a Calculation Agency Agreement to be dated 7
August 2003 between the Issuer, the Guarantor and the calculation agent
named in it (the "Calculation Agency Agreement"). This Agreement, the
Trust Deed, the Agency Agreement, the Calculation Agency Agreement and
the Stock Lending Agreement are together referred to herein as the
"Contracts". References in this Agreement to a document being in the
agreed form shall be the form of such document signed by identification
by Linklaters with such changes as may be approved by Deutsche Bank,
the Issuer and the Guarantor.
1 Issue of the Notes and Publicity
1.1 Agreement to Issue Notes: Subject to the terms of this Agreement, the
Issuer agrees to issue the Notes on 7 August 2003, or such other date
as the Issuer, the Guarantor and Deutsche Bank may agree (the "Closing
Date"), to Deutsche Bank or as it may direct, and the Guarantor agrees
to guarantee all obligations of the Issuer in relation to the Notes.
1.2 Issue Price: The Notes will be issued at the Issue Price (as defined
below), subject to the deduction of the commission referred to in
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Clause 9 and the expenses referred to in Clause 10. "Issue Price" means
100 per cent. of the aggregate principal amount of the Notes.
1.3 Offering Circular: The Issuer and the Guarantor undertake to prepare an
offering circular by 5 August 2003 (the "Offering Circular") for use in
connection with the issue of the Notes and hereby authorise Deutsche
Bank to distribute copies of the Offering Circular in connection with
the offering and sale of the Notes.
1.4 Publicity: Each of the Issuer and the Guarantor confirms the
arrangements made on its behalf by Deutsche Bank for announcements in
respect of the Notes to be published on such dates and in such
newspapers or other publications as they may agree with Deutsche Bank.
2 Agreements by Deutsche Bank
2.1 Subscription: Deutsche Bank agrees to subscribe and pay for the
aggregate principal amount of Notes on the Closing Date at the Issue
Price and on the terms of this Agreement.
2.2 Restrictions: Deutsche Bank warrants and agrees that it has complied
and will comply with the terms set out in the Schedule.
3 Stabilisation
Deutsche Bank may, to the extent permitted by applicable laws
over-allot and effect transactions in any over the counter market or
otherwise in connection with the issue and distribution of the Notes
with a view to supporting the market price of the Notes and/or the
Shares at levels other than those which might otherwise prevail, but in
doing so, it shall not act as agent of the Issuer or the Guarantor and
any loss resulting from over-allotment or stabilisation will be borne,
and any profit arising therefrom shall be retained, by Deutsche Bank.
Deutsche Bank acknowledges that the Issuer has not authorised the issue
of the Notes in an amount exceeding SEK2,556,000,000 principal amount.
4 Listing
4.1 Application for Listing: The Issuer confirms that it has authorised
Deutsche Bank to make or cause to be made an application on its behalf
for the Notes to be listed on the Luxembourg Stock Exchange (the "Stock
Exchange"). In connection with such application, the Issuer agrees to
deliver to the Stock Exchange copies of the Offering Circular, which
shall comply with the rules of the Stock Exchange, and to take such
other steps as may be required for the purpose of obtaining such
listing.
4.2 Maintenance of Listing: The Issuer will use all reasonable endeavours
to maintain the listing of the Notes on the Stock Exchange for as long
as any Note is outstanding. If, however, it is unable to do so, having
used such endeavours, or if the maintenance of such listing is unduly
onerous, the Issuer will instead use all reasonable endeavours promptly
to obtain and thereafter to maintain a listing for the Notes on such
other stock exchange as the Issuer and the Guarantor may (after
consultation with Deutsche Bank) decide.
5 Representations, Warranties and Indemnity
5.1 Representations and Warranties: The Issuer and the Guarantor, jointly
and severally hereby represent and warrant to Deutsche Bank that:
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5.1.1 Incorporation: each of them is duly incorporated as a societe
anonyme and validly existing under the laws of Luxembourg,
each with full power and authority to own its assets and
conduct its business and is lawfully qualified to do business
in those jurisdictions in which business is conducted by it
other than where the failure to be so qualified would not have
a material adverse effect on the Issuer or the Guarantor, as
the case may be;
5.1.2 Validity of Contracts: this Agreement has been duly
authorised, executed and delivered by the Issuer and the
Guarantor and constitutes, and the other Contracts to which
each is a party have been duly authorised by the Issuer and
the Guarantor (as the case may be) and on the Closing Date
will constitute, valid and legally binding obligations of the
Issuer and the Guarantor (as the case may be), enforceable
against the Issuer and the Guarantor (as the case may be) in
accordance with their terms subject to mandatory provisions of
applicable law (including applicable bankruptcy, insolvency,
reorganisation, rehabilitation, moratorium and similar laws
affecting creditors' rights generally);
5.1.3 Validity of the Notes: the Notes have been duly authorised by
the Issuer and, when duly executed, authenticated, issued,
delivered and paid for in accordance with the Contracts, will
constitute valid and legally binding obligations of the
Issuer, enforceable against the Issuer in accordance with
their terms subject to mandatory provisions of applicable law
(including applicable bankruptcy, insolvency, reorganisation,
rehabilitation, moratorium and similar laws affecting
creditors' rights generally);
5.1.4 Validity of the Guarantee: the guarantee of the Guarantor to
be contained in the Trust Deed (the "Guarantee") has been duly
authorised by the Guarantor and, when the Trust Deed has been
duly executed and delivered, will constitute valid and legally
binding obligations of the Guarantor subject to mandatory
provisions of applicable law (including applicable bankruptcy,
insolvency, reorganisation, rehabilitation, moratorium and
similar laws affecting creditors' rights generally);
5.1.5 Consents: all consents, clearances, approvals, authorisations,
orders, registrations or qualifications of or with any court
or governmental agency or body required for the execution and
delivery of the Contracts, the issue of the Notes, the giving
of the Guarantee, the performance of the Issuer of the terms
of the Notes (including their exchange for Shares pursuant to
the Conditions) and the Contracts and the consummation of the
other transactions herein and therein contemplated have been
obtained and are in full force and effect and are not subject
to any conditions which are required to be satisfied prior to
the date hereof and have not been satisfied and no action or
thing is required to be taken, fulfilled or done in relation
to the same;
5.1.6 Exchange Property: When the Notes are exchanged for the Shares
pursuant to the Conditions, such Shares will be validly
issued, paid-up and freely transferable;
5.1.7 Conduct of Business: each of the Issuer and the Guarantor (i)
are in compliance with any and all applicable national, state,
provincial and local laws and regulations required to conduct
their respective businesses in each jurisdiction in which such
businesses are conducted, (ii) have received all permits,
licences or other approvals required of them under applicable
national, state, provincial and local laws and regulations
required to conduct their respective businesses in each
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jurisdiction in which such businesses are conducted and (iii)
are in compliance with all terms and conditions of any such
permit, licence or approval, except in each case where such
non-compliance, failure to receive required permits, licences
or other approvals or failure to comply with the terms and
conditions of such permits, licences or approvals would not,
singly or in the aggregate, have a material adverse effect on
the Issuer, the Guarantor or the Guarantor and its
subsidiaries taken as a whole (the "Guarantor Group");
5.1.8 Compliance: the execution and delivery of the Contracts, the
issue of the Notes, the giving of the Guarantee, the carrying
out of the other transactions contemplated by the Contracts
and the Notes (including the mandatory exchange of the Notes
for the Shares) to be carried out by it and compliance with
their terms do not and will not (a) require the consent,
approval, authorisation, registration or qualification of or
with any governmental authority or (b) conflict with or result
in a breach of any of the terms or provisions of, or
constitute a default under, the articles of association of the
Issuer or the Guarantor, as the case may be, or any indenture,
trust deed, mortgage or other agreement or instrument to which
the Issuer or the Guarantor is a party or by which either of
them or any of their respective properties is bound, or (c)
infringe any currently existing applicable law, rule,
regulation, judgment, order or decree of any government,
governmental body or court, domestic or foreign, having
jurisdiction over the Issuer, the Guarantor or any of their
respective properties or assets;
5.1.9 Offering Circular: (i) the Offering Circular will as at its
date contain all information with respect to the Issuer, the
Guarantor, the Guarantor Group, the Notes and to the Guarantee
which is material in the context of the issue and offering of
the Notes and information which, according to the particular
nature of the Issuer, the Guarantor, the Guarantor Group, the
Notes and the Guarantee, is necessary to enable investors and
their investment advisers to make an informed assessment of
the assets and liabilities, financial position, profits and
losses, and prospects of the Issuer and the Guarantor and of
the rights attaching to the Notes and to the Guarantee, (ii)
all statements of fact to be contained in the Offering
Circular relating to the Issuer, the Guarantor, the Guarantor
Group, the Guarantee and the Notes will on its date of
publication be, in every material particular, true and
accurate and not misleading, (iii) all statements of opinion,
intention or expectation to be contained in the Offering
Circular will as of its date of publication be truly and
honestly held and will be made after due and careful
consideration of all relevant circumstances and will be based
on reasonable assumptions, (iv) the information included in
the Offering Circular with respect to Tele2 AB and the Shares
consists of accurate extracts from, or summaries of,
information which has been released publicly by Tele2 AB, (v)
no other facts will be omitted from the Offering Circular if
such omission would make any statement in the Offering
Circular, as of its date of publication, misleading in any
material respect, (vi) all reasonable enquiries will be made
by the Issuer and the Guarantor to ascertain such facts and to
verify the accuracy of all such information and statements and
(vii) the Offering Circular as of its date of publication will
not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements made therein, in the light of the circumstances
under which they are made, misleading;
5.1.10 Financial Statements - Guarantor: (i) the audited consolidated
financial statements of the Guarantor and its consolidated
subsidiaries taken as a whole
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(the "Guarantor's Consolidated Group") as at and for the three
years ended 31 December 2002 and the unaudited consolidated
financial statements for the three months ended 31 March 2003
were prepared in accordance with International Standards on
Auditing consistently applied, give a true and fair view of
the financial position of the Guarantor and the Guarantor's
Consolidated Group as at the relevant dates, and the results
of operations and changes in financial position of the
Guarantor and the Guarantor's Consolidated Group for the
periods in respect of which they have been prepared, and (ii)
since 31 December 2002 there has been no change (nor any
development or event involving a prospective change) which is
materially adverse to the condition (financial or other),
management, earnings, property, business affairs or business
prospects, net worth or results of operations of the Guarantor
or of the Guarantor's Consolidated Group respectively other
than as disclosed in information which has been released
publicly by the Guarantor;
5.1.11 Financial Statements - Issuer: (i) the audited consolidated
financial statements of the Issuer and its consolidated
subsidiaries taken as a whole (the "Issuer's Consolidated
Group") as at and for the three years ended 31 December 2002
and the unaudited consolidated financial statements for the
three months ended 31 March 2003 were prepared in accordance
with International Standards on Auditing consistently applied,
give a true and fair view of the financial position of the
Issuer and the Issuer's Consolidated Group as at the relevant
dates, and the results of operations and changes in financial
position of the Guarantor and the Issuer's Consolidated Group
for the periods in respect of which they have been prepared,
and (ii) since 31 December 2002 there has been no change (nor
any development or event involving a prospective change) which
is materially adverse to the condition (financial or other),
management, earnings, property, business affairs or business
prospects, net worth or results of operations of the Issuer or
of the Issuer's Consolidated Group respectively other than as
disclosed in information which has been released publicly by
the Issuer;
5.1.12 Tele2 AB: to the best of the knowledge and belief of each of
the Issuer and the Guarantor in the context of the issue and
offering of the Notes, (i) the Relevant Information is in
every particular true and accurate in all material respects
and not misleading and (ii) since 31 December 2002, save as
may be disclosed in the Relevant Information, there has been
no change (nor any development or event involving a
prospective change) which is materially adverse to the
condition (financial or other), results of operations or
general affairs of Tele2 AB. For the purposes of this Clause
5.1.12, "Relevant Information" means in respect of Tele2 AB,
the Form 20-F filed by Tele2 AB on 27 June 2003 with the U.S.
Securities and Exchange Commission (the "SEC") with respect to
the fiscal year ended 31 December 2002 and any report filed by
Tele2 AB with the SEC since that date.
5.1.13 Litigation: there are no pending actions, suits or proceedings
against or affecting the Issuer or the Guarantor or any of
their respective properties which, if determined adversely to
the Issuer or the Guarantor, could individually or in the
aggregate have a material adverse effect on the condition
(financial or other), management, earnings, property, business
affairs or business prospects, net worth or results of
operations or the general affairs of the Issuer or the
Guarantor or the Guarantor Group as a whole or on the ability
of the Issuer or the Guarantor to perform its obligations
under the Contracts, the Notes or the Guarantee or which
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are otherwise material in the context of the issue of the
Notes and, to the best of the Issuer's and the Guarantor's
knowledge, no such actions, suits or proceedings are
threatened or contemplated;
5.1.14 Events of Default: no event has occurred or circumstance
arisen in relation to the Issuer or the Guarantor which, had
the Notes already been issued, might (whether or not with the
giving of notice and/or the passage of time and/or the
fulfilment of any other requirement) constitute an "Event of
Default" as to be defined in the conditions of the Notes (the
"Conditions");
5.1.15 Non-public Information: none of the Issuer, the Guarantor and
their directors or officers are aware of any fact or
circumstance in relation to the Guarantor Group or in relation
to Tele2 AB that would be expected to have a material effect
upon the market price of the Notes, the Issuer, the Guarantor
or the Guarantor Group, the Shares or ▇▇▇▇▇ ▇▇, other than any
fact or circumstance which has been disclosed to the Stock
Exchange or the Stockholm Stock Exchange, as the case may be,
in accordance with the rules of the Stock Exchange or the
Stockholm Stock Exchange, as the case may be, prior to the
date of this Agreement;
5.1.16 U.S. Market Interest: each of the Issuer and the Guarantor is
a "foreign issuer" (as such term is defined in Regulation S
under the U.S. Securities Act of 1933 (the "Securities Act"))
which reasonably believes that there is no "substantial U.S.
market interest" (as such term is defined in Regulation S
under the Securities Act ("Regulation S")) in the Issuer or
the Guarantor's debt securities or in the Shares or any
securities of the same class as the Shares;
5.1.17 Directed Selling Efforts: neither the Issuer nor the
Guarantor nor any of their respective affiliates (as defined
in Rule 405 under the Securities Act), nor any person (other
than Deutsche Bank) acting on its or their behalf has engaged
in any "directed selling efforts" (as defined in Regulation
S) with respect to the Notes or the Shares;
5.1.18 Stabilisation: neither the Issuer nor the Guarantor nor any
of their respective affiliates (as defined in Rule 405 under
the Securities Act), nor any person acting on its or their
behalf has taken or will take, directly or indirectly, any
action designed to cause or to result in, or that has
constituted or which might reasonably be expected to cause or
result in, the stabilisation or manipulation of the price of
any security of the Issuer to facilitate the sale or resale
of the Notes in violation of applicable laws;
5.1.19 Offering Restrictions: the Issuer and the Guarantor have
complied with the necessary "offering restrictions" (as such
term is defined in Regulation S); and
5.1.20 Stabilising Guidance and Safe Harbour: the Issuer has been
informed of the existence of the FSA stabilising guidance
contained in Section MAR 2, ▇▇▇ 2G of the FSA Handbook (the
handbook of rules and guidance issued by the Financial
Services Authority) and has not taken or omitted to take any
action and will not take any action or omit to take any action
(such as issuing any press release relating to the Notes or
the Shares without the FSA/Stabilisation legend) which may
result in the loss by Deutsche Bank of the ability to rely on
any stabilisation safe harbour provided by the Financial
Services Authority under the Financial Services and Markets
▇▇▇ ▇▇▇▇ (the "FSMA").
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5.1.21 Market Manipulation: neither the Issuer nor the Guarantor nor
any of their respective subsidiaries has undertaken or will
undertake, directly or indirectly, any activities which would
have, or which would reasonably result in or would constitute
an illegal adjustment to the price of a manipulation of the
price of any transferable securities issued by the Issuer or
Tele2 AB.
5.2 Indemnity: The Issuer and the Guarantor hereby jointly and severally
undertake to Deutsche Bank that if Deutsche Bank or any of its
affiliates or controlling persons (as defined in the Securities Act) or
any of its directors, officers, employees or agents (each a "Relevant
Party") incurs any loss, liability, damages, cost, charge, expense
(including legal fees and costs and expenses (a "Loss") by reason of or
in connection with (i) any breach, or alleged breach by the Issuer
and/or the Guarantor, of the representations, warranties or obligations
of the Issuer and the Guarantor, as the case may be, under this
Agreement; or (ii) the Offering Circular containing, or being alleged
to contain, any untrue statement of a material fact or omitting, or
being alleged to omit, a fact necessary to make any statement therein,
in the light of the circumstances under which it was made, not
misleading, the Issuer or the Guarantor shall pay to Deutsche Bank on
demand an amount equal to such Loss. Neither the Issuer nor the
Guarantor shall be liable in respect of any settlement of any such
action effected without its consent.
6 Covenants
6.1 The Issuer and the Guarantor agree with Deutsche Bank as follows:
6.1.1 Preparation and delivery of Offering Circular: the Issuer and
the Guarantor will prepare and deliver, without charge, to
Deutsche Bank at least three days prior to the Closing Date
and thereafter from time to time as requested, such numbers of
copies of the Offering Circular as Deutsche Bank may
reasonably request, and the Issuer or the Guarantor will
deliver to Deutsche Bank at least three days prior to the
Closing Date three copies of the Offering Circular signed by a
duly authorised officer of the Issuer; the Offering Circular
shall be in a form which complies with the rules of the Stock
Exchange;
6.1.2 Amendment to Offering Circular: if at any time prior to the
later of the completion (in the determination of Deutsche
Bank) of the distribution of the Notes or the date 90 days
after the Closing Date, any event shall have occurred as a
result of which the Offering Circular, as then amended or
supplemented, would include an untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if for any
other reason it shall be necessary to amend or supplement the
Offering Circular, the Issuer and the Guarantor will
immediately notify Deutsche Bank, and, upon request from
Deutsche Bank, will promptly prepare and furnish without
charge as many copies as Deutsche Bank may, from time to time,
reasonably request of an amended Offering Circular or a
supplement to the Offering Circular which will correct such
statement or omission and shall comply with the rules of the
Stock Exchange, but neither Deutsche Bank's consent to nor the
delivery of any such amended Offering Circular or supplement
to the Offering Circular shall constitute a waiver of any of
the provisions hereof;
6.1.3 Warranties: without prejudice to its obligations under Clause
6.1.2 above, the Issuer and the Guarantor will notify Deutsche
Bank promptly upon becoming aware
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of any event or development making untrue or incorrect in any
material respect, any of its representations, warranties,
agreements or indemnities herein contained at any time prior
to payment of the net purchase moneys being made on the
Closing Date and take such steps as may be reasonably
requested by Deutsche Bank to remedy and/or publicise the
same;
6.1.4 Taxes: the Issuer (failing whom the Guarantor) will pay (i)
any stamp, issue, registration, documentary or other taxes and
duties, including interest and penalties, payable on or in
connection with the issue, subscription and sale of the Notes
by the Issuer; and (ii) in addition to any amount payable by
it under this Agreement, any value added, turnover or similar
tax payable in respect of that amount or any other amount
payable by the Issuer (failing whom the Guarantor) under this
Agreement (and references in this Agreement to any such amount
shall be deemed to include any such taxes so payable in
addition to it);
6.1.5 Announcements: between the date hereof and the date 30 days
following the Closing Date (both dates inclusive), the Issuer
(failing whom the Guarantor) will (unless prevented by
applicable law or regulation), and will cause any subsidiary
and all other parties acting on its or any of their behalf to,
notify and consult with Deutsche Bank at least 48 hours prior
to issuing any announcement concerning or which could be
material in the context of the issue, offering and
distribution of the Notes;
6.1.6 Directed Selling Efforts: neither the Issuer nor the
Guarantor, nor any of their respective affiliates (as defined
in Rule 405 under the Securities Act), nor any person acting
on any of their behalf will engage in any "directed selling
efforts" (as defined in Regulation S) with respect to the
Notes or the Shares to be delivered upon exchange of the
Notes; and
6.1.7 Compliance: it will comply with and use its best endeavours to
obtain, and maintain in force, all approvals, authorisations
and consents which are necessary for the Issuer or the
Guarantor, as the case may be, to comply with its obligations
under the Contracts and the Notes.
7 Conditions Precedent
7.1 The obligations of Deutsche Bank to subscribe and pay for the Notes on
the Closing Date are conditional upon:
7.1.1 Other Contacts: the execution on or before the Closing Date of
the other Contracts by the respective parties thereto;
7.1.2 Listing: the Stock Exchange having agreed to list the Notes on
the Closing Date, subject only to the issue of the Notes to be
issued on such date, or Deutsche Bank being satisfied that
such listing will be granted shortly after the Closing Date;
7.1.3 Auditors' Letters: on the date of the Offering Circular and on
the Closing Date, there having been delivered to Deutsche Bank
a letter, in each case in the agreed form, dated the date of
the Offering Circular and the Closing Date respectively, and
addressed to Deutsche Bank, from PricewaterhouseCoopers Sarl,
the auditors to the Issuer and to the Guarantor;
7.1.4 Compliance: on the Closing Date (a) the representations and
warranties of the Issuer and the Guarantor in this Agreement
being true, accurate and correct at,
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and as if made on, the Closing Date and (b) the Issuer and the
Guarantor having performed all of its obligations under this
Agreement to be performed on or before the Closing Date and
there having been delivered to Deutsche Bank a certificate,
dated the Closing Date, signed by a duly authorised officer of
the Issuer and of the Guarantor, to such effect; and
7.1.5 Legal Opinions: on or before the Closing Date there having
been delivered to Deutsche Bank opinions, in form and
substance reasonably satisfactory to Deutsche Bank, dated the
Closing Date of:
(i) Linklaters ▇▇▇▇▇▇, legal advisers to the Issuer and
to the Guarantor as to Luxembourg law; and
(ii) Linklaters, legal advisers to Deutsche Bank and the
Trustee as to English law;
and such other documents, opinions and certificates as
Deutsche Bank may reasonably require.
7.2 Waiver: Deutsche Bank may, at its discretion and upon such terms as it
thinks fit, waive compliance with the whole or any part of this Clause
7 other than Clause 7.1.1.
8 Closing
8.1 Issue of Notes: At 15.00 hours (London time) (or such other time as may
be agreed between Deutsche Bank and the Issuer) on the Closing Date,
the Issuer will issue and deliver to Deutsche Bank or its order in such
place as Deutsche Bank may reasonably require the Temporary Global Note
duly executed and authenticated and to be held by or to the order of a
common depositary (the "Common Depositary") for Euroclear Bank
S.A./N.V., as operator of the Euroclear system and Clearstream Banking,
societe anonyme.
8.2 Payment: Against such issue and delivery, Deutsche Bank will pay or
cause to be paid to the Issuer the net subscription moneys for the
Notes (being the aggregate amount payable for the Notes calculated at
the Issue Price less the combined management, selling and underwriting
commission referred to in Clause 9 in respect of the Notes and any
amounts payable under Clause 10). Such payment shall be made in Swedish
kronor in immediately available funds to such Swedish kronor account in
Stockholm as shall be notified by the Issuer to Deutsche Bank not later
than three business days prior to the Closing Date, evidence of such
payment taking the form of a confirmation from the Common Depositary
that it has made the relevant payment to the Issuer.
9 Commission and Concession
The Issuer (failing whom the Guarantor) agrees to pay to Deutsche Bank
a combined management, selling and underwriting commission of 2.75 per
cent of the aggregate principal amount of the Notes. Such commission
shall be deducted from the subscription moneys for the Notes as
provided in Clause 8.
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10 Expenses
The Issuer, failing whom the Guarantor, has agreed to pay upon closing
certain expenses in connection with the issue of the Notes, such sum as
is set out in a separate agreement between Deutsche Bank, the Issuer
and the Guarantor.
11 Termination
11.1 Deutsche Bank's Ability to Terminate: Notwithstanding anything
contained in this Agreement, Deutsche Bank may by notice to
the Issuer and the Guarantor given at any time prior to
payment of the net subscription moneys for the Notes terminate
this Agreement in any of the following circumstances:
11.1.1 if there shall have come to the notice of Deutsche Bank a
material breach of, or any event rendering untrue or incorrect
in any material respect any of the representations and
warranties made pursuant to Clause 5.1 or any failure by the
Issuer or the Guarantor to perform any of its undertakings or
agreements in this Agreement;
11.1.2 if any of the conditions specified in Clause 7 has not been
satisfied or waived by Deutsche Bank on or before the Closing
Date;
11.1.3 if any of the following has occurred: (i) any material adverse
change or any development involving a prospective material
adverse change in or affecting the condition, financial or
otherwise of the Issuer or the Guarantor or the Guarantor
Group or the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise)
or prospects of the Issuer or the Guarantor or the Guarantor
Group, whether or not arising in the ordinary course of
business, (ii) any outbreak or escalation of hostilities or
declaration of war or national emergency or other national or
international calamity or crisis or change in economic or
political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or change
on the financial markets of the European Union, Luxembourg,
the Kingdom of Sweden or the United States would, in the
judgment of Deutsche Bank, make it impracticable or
inadvisable to market the Notes or to enforce contracts for
the sale of the Notes, or (iii) any suspension of trading in
securities generally on the Stock Exchange or on the New York
Stock Exchange or limitation on prices (other than limitations
on hours or numbers of days of trading) for securities on any
such exchange, (iv) the enactment, publication, decree or
other promulgation of any statute, regulation, rule or order
of any court or other governmental authority which in the
opinion of Deutsche Bank materially and adversely affects or
may materially and adversely affect the business or operations
of the Issuer or the Guarantor or the Guarantor Group, (v) the
declaration of a banking moratorium by the European Union,
Luxembourg, the Kingdom of Sweden or the United States or New
York State authorities, (vi) any downgrading, or placement on
any watch list for possible downgrading, in the rating of the
Issuer's debt securities by any nationally recognised
statistical rating organisation; (vii) the suspension of
trading of the Guarantor's securities on any exchange or
over-the-counter market or any governmental authority or,
(viii) the taking of any action by any governmental body or
agency in respect of its monetary or fiscal affairs which in
the reasonable opinion of Deutsche Bank has a material adverse
effect on the securities markets in the European Union,
Luxembourg, the Kingdom of Sweden or the United States.
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11.2 Consequences of Termination:
Upon such notice being given on or prior to the Closing Date, this
Agreement shall terminate and be of no further effect and no party
shall be under any liability to any other in respect of this Agreement,
except that the Issuer (failing whom the Guarantor) shall remain liable
under Clause 10 and Clause 11.3 and the respective obligations of the
parties pursuant to Clause 12 which would have continued had the
arrangements for the subscription and issue of the Notes been
completed, shall continue.
11.3 Expenses on Termination: In the event that this Agreement is terminated
prior to the issue of the Notes the Issuer (failing whom the Guarantor)
shall, upon demand, reimburse Deutsche Bank for all out-of-pocket
expenses (including fees and disbursements of legal counsel) that shall
have been incurred by Deutsche Bank in connection with the proposed
issue and sale of the Notes.
12 Survival of Representations and Obligations
The representations, warranties, agreements, undertakings and
indemnities in this Agreement shall continue in full force and effect
despite completion of the arrangements for the subscription and issue
of the Notes or any investigation made by or on behalf of Deutsche
Bank.
13 Communications
Addresses: Any communication shall be given by letter, fax or telephone
in the case of notices to the Issuer as follows:
Millicom Telecommunications S.A.
▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Fax no.: + ▇▇▇ ▇▇ ▇▇▇ ▇▇▇
Attention: Chief Financial Officer
and in the case of notices to the Guarantor, to it at:
Millicom International Cellular S.A.
▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Fax no: + ▇▇▇ ▇▇ ▇▇▇ ▇▇▇
Attention: Chief Financial Officer
with a copy to:
Banque Invik Sa 7
Avenue ▇.▇. ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Attention: Head of Corporate Finance
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and in the case of notices from the Issuer or the Guarantor, to
Deutsche Bank at:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone no: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax no: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
13.1 Effectiveness: Any such communication shall take effect, in the case of
a letter, at the time of delivery or, in the case of fax, at the time
of despatch or, in the case of telephone, when made.
13.2 Confirmations: Any communication not by letter shall be confirmed by
letter but failure to send or receive the letter of confirmation shall
not invalidate the original communication.
14 Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Agreement.
15 Governing Law and Jurisdiction
15.1 Governing law: This Agreement shall be governed by and construed in
accordance with English law.
15.2 Jurisdiction: The courts of England are to have jurisdiction to settle
any disputes which may arise out of or in connection with this
Agreement and accordingly any legal action or proceedings arising out
of or in connection with this Agreement ("Proceedings") may be brought
in such courts. Each of the Issuer and the Guarantor irrevocably
submits to the jurisdiction of such courts and waives any objection to
Proceedings in such courts whether on the ground of venue or on the
ground that the Proceedings have been brought in an inconvenient forum.
These submissions are made for the benefit of Deutsche Bank and shall
not limit the right of any of them to take Proceedings in any other
court of competent jurisdiction nor shall the taking of Proceedings in
one or more jurisdictions preclude the taking of Proceedings in any
other jurisdiction (whether concurrently or not).
15.3 Agent for Service of Process: Each of the Issuer and the Guarantor
irrevocably appoints Metro International UK Limited, at its registered
office for the time being (being at the date hereof at ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇) as its authorised agent
for service of process in England. If for any reason such agent shall
cease to be such agent for service of process, the Issuer and the
Guarantor shall forthwith, on request of Deutsche Bank, appoint a new
agent for service of process in England and deliver a copy of the new
agent's acceptance of that appointment within 30 days. Nothing in this
Agreement shall affect that right to serve process in any other manner
permitted by law.
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SCHEDULE
SELLING RESTRICTIONS
1 General: No action has been or will be taken in any jurisdiction by
Deutsche Bank or the Issuer, that would permit a public offering of the
Notes or possession or distribution of the Offering Circular or any
other offering or publicity material relating to the Notes in any
country or jurisdiction where action for that purpose is required.
Deutsche Bank will comply with all applicable laws and regulations in
each jurisdiction in which it acquires, offers, sells or delivers Notes
or has in its possession or distributes the Offering Circular or any
such other material, in all cases at its own expense. It will also
ensure that no obligations are imposed on the Issuer or the Guarantor
in any such jurisdiction as a result of any of the foregoing actions.
Neither the Issuer nor the Guarantor will have any responsibility for
obtaining, and Deutsche Bank will obtain, any consent, approval or
permission required by Deutsche Bank for, the acquisition, offer, sale
or delivery by it of Notes under the laws and regulations in force in
any jurisdiction to which it is subject or in or from which it makes
any acquisition, offer, sale or delivery. Deutsche Bank is not
authorised to make any representation or use any information in
connection with the issue, subscription and sale of the Notes other
than as contained in the Offering Circular or any amendment or
supplement thereto.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇: The Notes, the Guarantee and the Shares to be delivered
upon exchange of the Notes have not been and will not be registered
under the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S or pursuant to an exemption from
the registration requirements of the Securities Act. Deutsche Bank
represents that it has offered and sold the Notes, and agrees that it
will offer and sell the Notes and the Shares to be delivered upon
exchange of the Notes (i) as part of their distribution at any time and
(ii) otherwise until 40 days after the later of the commencement of the
offering and the Closing Date, only in accordance with Rule 903 of
Regulation S under the Securities Act. Accordingly, neither it, its
affiliates, nor any persons acting on its or their behalf have engaged
or will engage in any directed selling efforts with respect to the
Notes and the Shares to be delivered upon exchange of the Notes, and it
and they have complied and will comply with the offering restrictions
requirement of Regulation S. Deutsche Bank agrees that, at or prior to
confirmation of sale of Notes, it will have sent to each distributor,
dealer or person receiving a selling concession, fee or other
remuneration that purchases Notes or Shares to be delivered upon
exchange of the Notes from it during the distribution compliance period
a confirmation or notice to substantially the following effect:
"The securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may
not be offered and sold within the United States or to, or for
the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the commencement of the offering and the Closing
Date, except in either case in accordance with Regulation S
under the Securities Act ("Regulation S"). Terms used above
have the meanings given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by
Regulation S.
In addition:
2.1 except to the extent permitted under U.S. Treas.
Reg.ss.1.163-5(c)(2)(i)(D) (the "D Rules"), Deutsche Bank (a)
represents that it has not offered or sold, and agrees that during a
40-
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day restricted period it will not offer or sell, Notes to a person who
is within the United States or its possessions or to a United States
person, and (b) represents that it has not delivered and agrees that it
will not deliver within the United States or its possessions definitive
Notes that are sold during the restricted period
2.2 Deutsche Bank represents that it has and agrees that throughout the
restricted period it will have in effect procedures reasonably designed
to ensure that its employees or agents who are directly engaged in
selling Notes are aware that such Notes may not be offered or sold
during the restricted period to a person who is within the United
States or its possessions or to a United States person, except as
permitted by the D Rules
2.3 if it is a United States person, Deutsche Bank represents that it is
acquiring the Notes for purposes of resale in connection with their
original issue and if it retains Notes for its own account, it will
only do so in accordance with the requirements of U.S. Treas.
Reg.ss.1.163-5(c)(2)(i)(D)(6) and
2.4 with respect to each affiliate that acquires from it Notes for the
purpose of offering or selling such Notes during the restricted period,
Deutsche Bank either (a) repeats and confirms the representations and
agreements contained in paragraphs 2.1, 2.2 and 2.3 on its behalf or
(b) agrees that it will obtain from such affiliate for the benefit of
the Issuer the representations and agreements contained in paragraphs
2.1, 2.2 and 2.3.
Terms used in this paragraph have the meanings given to them by the
U.S. Internal Revenue Code of 1986 and regulations thereunder,
including the D Rules.
3 United Kingdom: Deutsche Bank represents, warrants and agrees that:
3.1 it has not offered or sold and, prior to the expiry of a period of six
months from the Closing Date, will not offer or sell any Notes to
persons in the United Kingdom, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom within
the meaning of the Public Offers of Securities Regulations 1995
3.2 it has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to
engage in investment activity (within the meaning of section 21 of the
Financial Services and Markets Act 2000 (the "FSMA") received by it in
connection with the issue or sale of any Notes in circumstances in
which section 21(1) of the FSMA does not apply to the Issuer or the
Guarantor and
3.3 it has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the Notes in,
from or otherwise involving the United Kingdom.
4 Luxembourg
Deutsche Bank warrants, represents and undertakes to the Issuer and the
Guarantor that it has not and will not make any public offering of or
sell any Notes or distribute any offering materials relating to the
Notes in Luxembourg in circumstances that would constitute a public
offering unless all the relevant legal and regulatory requirements of
Luxembourg law concerning public offerings of securities in the Grand
Duchy of Luxembourg have been complied with. In particular, this offer
has not been made and may not be announced to the public and offering
materials may not be made available to the public in or out of
Luxembourg. Deutsche Bank acknowledges that a listing on the Luxembourg
Stock Exchange of the Notes does not necessarily imply that a public
offering in Luxembourg has been authorised.
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This Agreement has been entered into on the date stated at the
beginning.
MILLICOM TELECOMMUNICATIONS S.A.
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ MARC BEULS
Name:
Title: DIRECTOR DIRECTOR
MILLICOM INTERNATIONAL CELLULAR S.A.
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ BEULS
Name:
Title: DIRECTOR DIRECTOR
DEUTSCHE BANK AG LONDON
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
Title: MANAGING DIRECTOR, ECM
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15