1
Exhibit 10.1
THIS OPTION AGREEMENT is made as of the 23rd day of July 1996 by and
between Mikhail Leibov, residing at 11 Golar Drive, Monsey, New York 10952
("Leibov"), and Telcom Group USA, Inc., a Delaware corporation having an office
for the transaction of business at 780 Third Avenue, New York, New York 10017
(the "Investor").
WHEREAS, ZAO Corbina Telecommunications (the "Company"), a closed joint
stock company organized and existing under the laws of the Russian Federation
has authorized charter capital consisting of 140,000,000 roubles divided into
140 ordinary registered shares, each of which has a nominal value of 1,000,000
roubles; and
WHEREAS, Leibov is the actual beneficial owner of all 140 ordinary
registered shares of the Company's charter capital which are registered in the
name of Vladimir A. Khachaturyan, a resident of Moscow, Russian Federation
("Khachaturyan"), as nominee for Leibov; and
WHEREAS, the Investor desires to acquire from Leibov an option to
purchase 105 shares (the "Option Shares") of said 140 ordinary registered shares
in accordance with the terms, and subject to the conditions hereinbelow set
forth; and
WHEREAS, Leibov is willing to grant such an option to the Investor in
accordance with such terms, and subject to such conditions,
NOW, THEREFORE, in consideration of the foregoing, and the mutual terms
and conditions hereinbelow set forth, it is agreed by the parties, as follows:
1. Grant of Option. In consideration of the Investor's payment of the
sum of $5,000 to Leibov, the receipt whereof is hereby acknowledged by Leibov,
Leibov hereby grants to the Investor the right and option to purchase the Option
Shares from Leibov at any time during the period commencing on the date first
above-written and ending at 5:00 P.M. Eastern Standard Time on December 31, 1997
at an exercise price of $190,000 (the "Purchase Price").
2. Amendment and Re-Registration of the Company's Charter. Leibov
hereby covenants and agrees that, upon his receipt of full payment of the
Purchase Price, he will cause the Company's Charter to be amended, and as so
amended, to be re-registered with the appropriate governmental authorities, to
record the Investor's ownership of the Option Shares.
3. Representations and Warranties by Leibov. In order to induce the
Investor to enter into this Agreement and, upon exercise of the option granted
2
hereby, to purchase the Option Shares, the Shareholder hereby represents and
warrants to the Investor, as follows:
(a) Organization, Standing etc. The Company is a closed joint
stock company duly organized, validly existing and in good standing under the
laws of the Russian Federation, and has all requisite power and authority to
carry on its business, to own and hold its properties and assets, to enter into
this Agreement, to carry out the provisions hereof, and the terms of its
Charter. The Company has no subsidiaries or direct or indirect interest (by way
of stock ownership or otherwise) in any firm, partnership, corporation,
association or business enterprise.
(b) Charter Capital. As of the date hereof the authorized
charter capital of the Company consists of 140 ordinary registered shares, all
of which have been issued to, and are registered in the name of, Khachaturyan,
who holds such shares as nominee for Leibov. The Company has no outstanding
subscription, option, warrant, call, contract, demand, commitment, convertible
security or other instruments, agreement or arrangement of any character or
nature whatever under which the Company is or may be obligated to issue any
security of any kind.
(c) Shareholder's Agreements, Registration Rights. There is no
voting trust, shareholders' agreement or other arrangement affecting any portion
of the ordinary registered shares issued in respect of the Company's charter
capital.
(d) Leibov's Power and Authority, and Right, Title and
Interest. Leibov is the sole beneficial owner of the Option Shares which are
registered in the name of Khachaturyan, as Leibov's nominee, and Leibov's
ownership thereof is free and clear of all liens, claims and encumbrances
thereon. Leibov has all requisite power and authority to execute this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by Leibov does not, and the consummation of the
transactions contemplated hereby will not, violate any provision of any law,
rule, regulation, mortgage, lien, lease, agreement, instrument, order,
arbitration award, judgment or decree to which Leibov is a party or by which
Leibov is bound. This Agreement is a valid and binding agreement of Leibov and
is enforceable against Leibov in accordance with its terms, except as such
enforcement is limited by bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally.
(e) Appointment of Investor Representatives on Company's
Board. Upon the Investor's timely exercise of the option granted hereunder,
Leibov's receipt of the Purchase Price, and the re-registration of the Option
Shares to record the Investor's ownership thereof, Leibov shall take such action
jointly with the Investor as shall be necessary to appoint individuals
designated by the Investor
2
3
to serve on and comprise not less than 75% of all of the members of the
Company's Board of Directors or similar governing body.
4. Capital Contribution to be Made by the Investor; Preferential
Distributions; Return of Option Shares in Certain Circumstances.
(a) Capital Contribution. In the event that the Investor
exercises the Option and Purchases the Option Shares, the Investor further
agrees that it will establish, in accordance with the Currency Law of the
Russian Federation, and Instruction 16 of the Central Bank of the Russian
Federation, a type "I" special rouble account at an authorized bank located
within the Russian Federation; and it will make capital contributions to the
Company denominated in roubles which shall be equivalent to US$655,000. Such
capital contribution shall be due and payable by the Investor on the fifth day
after the closing of the Investor's initial public offering of securities (the
"IPO") in the United States of America (the "Closing Date").
(b) Preferential Distributions. Leibov and the Investor hereby
agree that: (i) in the event that the Company makes any distributions of charter
capital in respect of its ordinary registered shares, the entire amount of any
such distribution shall be allocated and paid to the Investor until such time as
it shall have recouped $425,000 of its additional capital contributions to the
Company; and ii) after the Investor shall have recouped $425,000 of its
additional capital contributions, all further distributions by the Company in
respect of its ordinary registered shares shall be made on a pro rata basis.
(c) No IPO Closing. In the events that (i) the Investor
withdraws the IPO prior to the declaration of effectiveness by the Securities
and Exchange Commission (the "Commission") of the Registration Statement
pertaining thereto, or (ii) the Investor otherwise ceases to proceed with
registration under the Securities Act of 1933 of the securities it intends to
offer to the public in its IPO, or (iii) J.W. Barclay & Co., Inc. fails, for any
reason, to seek an order of effectiveness of said Registration Statement from
the Commission on or before December 31, 1997, then, upon Leibov's payment of
the sum of $95,000 to the Investor, the Investor shall transfer all of its
right, title and interest in all of the Option Shares to Leibov. In such event,
the Investor hereby covenants and agrees that it will execute all instruments
and documents, and undertake all actions necessary to cause the Company's
Charter to be amended, and as so amended, to be re-registered with the
appropriate governmental authorities, to record the transfer of ownership of the
Investor's ownership of 105 ordinary registered shares of the Company's Charter
Capital to Leibov.
3
4
5. Brokerage. There are no claims for brokerage commissions, finders'
fees or similar compensation in connection with the transactions contemplated by
this Agreement based on any arrangement or agreement binding upon the Investor
or Leibov, other than the claims of Schneur Genack and Marvin Katz. The Investor
and the Company (as directed by Leibov jointly with the Investor) shall pay
brokerage commissions to Messrs. Genack and Katz at such time after the Investor
shall have exercised the option granted to it hereunder, in a manner and in
amounts to be mutually agreed upon. Leibov and the Investor will indemnify, and
hold each other harmless against any liability, loss or expense (including,
without limitation, reasonable attorney's fees and out-of-pocket expenses)
arising in connection with any such claim, other than the claims of Messrs.
Genack and Katz.
6. Notices. All notices, requests, consents and other communications
required or permitted hereunder shall be in writing and shall be delivered
personally or sent by next day overnight delivery, facsimile transmission, or by
registered or certified mail, postage prepaid, addressed in each case, to the
parties at their respective addresses first above-written, or at such other
address as either party may specify by written notice to the other party, and
each such notice, request, consent and other communication shall for all
purposes of the Agreement be treated as being effective or having been given
when delivered, if delivered personally, or, if sent by mail, at the earlier of
its actual receipt or three (3) days after the same has been deposited in a
regularly maintained receptacle for the deposit of United States mail, addressed
and postage prepaid as aforesaid.
7. Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective permitted successors and assigns, whether so
expressed or not.
8. Headings. The headings of the Sections and paragraphs of this
Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
9. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof, and, except as
otherwise provided herein, supersedes all prior agreements or understandings,
written or oral, in respect thereto.
10. Choice of Law; English Language. It is the intention of the parties
that the internal substantive laws, and not the laws of conflicts, of New York
should govern the enforceability and validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of the
parties. The English original of this Agreement shall prevail over any
translation hereof.
4
5
11. Consent to Jurisdiction. The parties hereto hereby irrevocably
submit the exclusion jurisdiction of any New York State or Federal court sitting
in the State of New York, for any action or proceeding arising out of or related
to this Agreement, and the parties hereto hereby irrevocably agree that all
claims in respect of any such action or proceeding may be heard and determined
in New York State court or, to the extent permitted by law, in such Federal
court. The parties hereto hereby irrevocably waive, to the fullest extent they
may effectively do so, the defense of an inconvenient forum to the maintenance
of any such action or proceeding.
12. Survival of Representations and Warranties. The parties hereby
agree that each representation made by Leibov hereunder shall remain in full
force and effect, and shall be true and correct on the date when the Investor
shall timely exercise the option granted to it hereunder.
13. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
[The Balance of This Page Has Been Left Blank Intentionally]
5
6
14. Further Assurances. Each of the parties hereby covenants that he
and/or it shall execute such instruments and documents, and shall undertake such
acts as may be reasonably required in order to give effect to or implement any
term, covenant or condition of this Agreement. The provisions of this section
shall be enforceable for a period of one year following the date first above
written.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
TELCOM GROUP USA, INC.
By: _____________________________
Ronald G. Nathan, President
_____________________________
Mikhail Leibov
6