EXHIBIT 10.33
AGREEMENT RE TRANSFER OF INTEREST IN PORTACOM WIRELESS, INC. IN AMERICAN
CAMBODIAN TELECOM, LTD.
WHEREAS PortaCom Wireless, Inc., a corporation organized and existing under
the laws of the State of Delaware in the United States of America and
hereinafter referred to simply as "PCW", owns an 86 percent interest, and/or
rights to acquire such interest, in the issued and outstanding shares of
American Cambodian Telecom, Ltd., a corporation organized and existing under the
laws of the Kingdom of Cambodia and hereinafter referred to simply as "ACT"; and
WHEREAS Paul Robert Carr, a natural person and a citizen of the State of
California of the United States of America hereinafter referred to simply as
"CARR", has for some time been employed by PCW and engaged in an effort to
obtain for ACT from the Kingdom of Cambodia a license for the operation
throughout Cambodia of a code division multiple access ("CDMA")
telecommunications system; and
WHEREAS said license was issued to ACT on December 26, 1996, for a term of
25 years, by the Ministry of Posts and Telecommunications of The Kingdom of
Cambodia; and
WHEREAS PCW is indebted to CARR in an amount not less than US$100,000 for
earned but unpaid compensation for services rendered and un-reimbursed expenses
advanced and/or incurred by CARR in the performance of his duties for PCW; and
WHEREAS PCW is willing and desirous of i) transferring to CARR all rights,
titles and interests in ACT, including said licence, which PCW holds, or has any
option to acquire, and ii) acknowledging that it does not object to the lawful
substitution of its name with the name of CARR on any and all documents related
to ACT, from the date of this agreement forward, in consideration of CARR
waiving and releasing PCW, its partners, affiliates, subsidiaries, divisions,
shareholders and any and all current or former directors, officers, employees,
agents, contractors, successors, heirs and assigns of any and all claims,
charges or demands in law or in equity whether known or unknown of CARR arising
from or in relation to CARR's employment with, or termination of employment
from, PCW, including but not limited to claims, charges or demands for unpaid
compensation, un-reimbursed expenses, wrongful discharge, breach of contract,
wrongful conduct or any other claims, charges or demands in any way related to
CARR's employment with or termination from PCW; and
WHEREAS PCW has not made any representations as to the investment value,
business or prospects of ACT and CARR has relied solely on his own knowledge and
independent investigation in determining to accept the aforementioned rights,
titles and interests in consideration for the agreements set forth herein; and
WHEREAS CARR is willing and desirous of transferring and delivering to PCW,
for future examination by PCW's independent auditors, copies of certain
corporate and financial information of ACT in existence from the date of its
formation up to and including the date upon which the transfer of PCW's interest
in ACT to CARR occurs, such corporate and financial information hereinafter
referred to simply as "ACT Information" and defined herein as
Page 1 of 4
information including but not necessarily limited to official copies of i)
---------------
constating documents such as articles or certificates of incorporation and
bylaws, ii) executed shareholder and director consent resolutions and minutes of
all meetings of shareholders and directors, iii) any and all documents filed
with any governmental agency of the Kingdom of Cambodia or political
subdivisions thereof, iv) lists of officers and directors and their dates of
election and resignation, v) corporate income, property and other applicable tax
or informational returns filed with any governmental agency of the Kingdom of
Cambodia or political subdivision thereof , and vi) a statement disclosing full
details of any such documents or informational returns or tax returns which were
required to have been filed with any governmental agency of the Kingdom of
Cambodia or political subdivision thereof, but which were not timely filed by
ACT or its representatives, and vii) bank statements on all ACT accounts, and
viii) receipts satisfactorily evidencing all income items, expense items, assets
and liabilities of ACT, and ix) books of account, summary reports, unaudited
financial statements, transaction lists, ledgers, etc. containing a sufficiently
detailed account of all transactions and/or entries in the bank accounts and
books of account of ACT, and x) a balance sheet of ACT and accompanying
schedules as of the date upon which the transfer of the equity interest to CARR
takes effect to be prepared by KPMG of Phnom Penh, Cambodia, such schedules to
detail a) cash on hand and in banks along with other assets, their original
cost, depreciation methodology and accumulated depreciation at balance sheet
date, b) liabilities at balance sheet date by creditor, and c) share capital by
stockholder at balance sheet date by shareholder; and
WHEREAS PCW acknowledges that certain of the above documents, if in
existence, are under the care, custody and control of KPMG of Phnom Penh,
Cambodia, PCW's independent accountants, and that any of the above documents may
be found by CARR to not exist, and that PCW will accept as satisfactory CARR's
oral or written statements attesting to the non-existence of any of the above
documents and will not consider the non provision by CARR of any such documents
which CARR has attested to be non-existent as a breach of this agreement; and
WHEREAS PCW is willing and desirous of bearing the reasonable expenses of
CARR of procuring the ACT Information, including any delivery charges incurred
by CARR for services provided by either Federal Express or United Parcel
Service, payments which must be made to KPMG of Phnom Penh, Cambodia related to
accounting and administrative work up to and including the date upon which the
transfer of PCW's interest in ACT to CARR occurs.
NOW THEREFORE IT IS HEREBY AGREED that:
1. PCW shall deliver, upon receipt from CARR of a duly executed, dated and
notarized waiver and release document in a form acceptable to PCW, all
additional documents, share certificates, or other instruments
necessary and/or advisable to transfer to CARR all rights, titles and
interests in ACT which PCW now holds, or has any option to acquire; and
2. PCW shall, at the request of CARR, confirm in writing to any third
party that
Page 2 of 4
such transfer of its rights, titles and interests in ACT has taken
place and, should CARR request any additional documents to validate
such transfer, it will not be unreasonably withheld; and
3. CARR shall deliver the ACT Information as herein above defined via
Federal Express or United Parcel Service to PCW, within 30 days of the
date upon which PCW has paid the reasonable expenses related such
delivery by CARR or has caused such expenses to be paid; and
4. PCW shall indemnify, save, defend and hold harmless CARR and/or ACT, as
well as ACT's other shareholders, from any and all cost, liability or
expense, including attorneys' fees, to which CARR or ACT may become
subject be reason of any actions or failures to act on the part of PCW,
CARR's employment by PCW, or ACT's relationship with PCW, this
obligation to vest upon PCW's receipt of said duly executed waiver and
release document in a form acceptable to PCW and only with respect to
actions or failures to act of CARR if CARR acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of PCW, except that no indemnification shall be made in
respect of any claim, issue or matter as to which CARR shall have been
adjudged to be liable for negligence or misconduct in the performance
of his duty to PCW, unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, CARR is fairly and reasonable entitled to indemnity for expenses
deemed proper by the Court of Chancery of the State of Delaware or the
court in which such action or suit was brought and which have actually
and reasonably been incurred by CARR in connection with the defense or
settlement of such action or suit; and
5. PCW represents and warrants that it has not assigned, transferred,
encumbered, suffered the encumbrance of, or otherwise undergone any
diminishment or impairment of its right, title and interest in ACT and
will not do so prior to the transfer of same to CARR pursuant to this
agreement, and that its officer who executes this agreement has been
fully authorized to do so by PCW in accordance with its by-laws,
articles of incorporation and applicable laws to which it is subject;
and
6. This agreement cancels and supercedes that certain agreement entitled
Agreement Re Transfer of Interest of PortaCom Wireless Inc. in American
-----------------------------------------------------------------------
Cambodian Telecom, Ltd. executed by and among CARR, ACT and PCW on
-----------------------
November 19, 1997; and
7. There are no other agreements, promises or representations by and among
the parties signatory to this agreement bearing upon the subject matter
of this agreement except as set forth herein; and
Page 3 of 4
8. This agreement may be altered or modified only by a further written
instrument specifically making reference to this agreement and executed
by all the same parties or their legal representatives.
IN WITNESS WHEREOF, this agreement is executed effective this 15 day of
--
January, 1998, in the State of California subject to the laws of said state.
PORTACOM WIRELESS, INC.,
a corporation
BY: /s/ Douglas C. MacLellan
-----------------------------------------
DOUGLAS C. MACLELLAN
President and CEO
/s/ Paul Robert Carr
--------------------------------------------
PAUL ROBERT CARR,
a natural person
AMERICAN CAMBODIAN TELECOMMUNICATIONS, LTD.,
a corporation
BY: /s/ Paul Robert Carr
----------------------------------------
PAUL ROBERT CARR
President and CEO
Page 4 of 4