Amendment to General Statement of Beneficial Ownership — Schedule 13D
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1: SC 13D/A Amendment to General Statement of Beneficial HTML 126K
Ownership
2: EX-5 Opinion re: Legality 17 63K
3: EX-6 Opinion re: Discount on Capital Shares 13 40K
4: EX-7 Opinion re: Liquidation Preference 9 26K
EX-6 — Opinion re: Discount on Capital Shares
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EXHIBIT 6
CONFORMED COPY
Dated 18 July 2003
DEUTSCHE BANK AG LONDON BRANCH
and
MILLICOM TELECOMMUNICATIONS S.A.
SECURITIES LENDING AGREEMENT
in respect of Series B shares in Tele2 AB
Linklaters
One Silk Street
London EC2Y 8HQ
Telephone (44-20) 7456 2000
Facsimile (44-20) 7456 2222
Ref PEB
THIS AGREEMENT is made the 18th day of July, 2003
BETWEEN:
(1) DEUTSCHE BANK AG a company incorporated under the laws of Germany as a
Stock corporation domiciled in Frankfurt am Main (registered under No.
30000 with the District Court of Frankfurt am Main) and acting for the
purposes of this Agreement through its LONDON BRANCH at Winchester
House, 1 Great Winchester Street, London EC2N 2DB and registered in the
UK with Companies House pursuant to Schedule 21A of the Companies Act
1985 under Company No. FC007615, Branch No. BR000005 (the "Borrower");
and
(2) MILLICOM TELECOMMUNICATIONS S.A., a public limited company incorporated
in Luxembourg and registered with the Luxembourg Registrar of Commerce
and Companies under registration number B-64,899 whose registered
office is at 75, Route de Longwy , L-8080 Bertrange , Luxembourg (the
"Lender").
WHEREAS:
(A) The Parties hereto are desirous of agreeing a procedure whereby the
Lender will make available to the Borrower from time to time Securities
(as hereinafter defined).
(B) All transactions carried out under this Agreement will be effected in
accordance with the Rules (as hereinafter defined) TOGETHER WITH
current market practices, customs and conventions.
NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED AS FOLLOWS:
1 INTERPRETATION
1.1 In this Agreement:
"Act of Insolvency" means in relation to the Borrower:
(a) its making a general assignment for the benefit of, or
entering into a reorganisation, arrangement, or composition
with creditors; or
(b) its admitting in writing that it is unable to pay its debts as
they become due; or
(c) its seeking, consenting to or acquiescing in the appointment
of any trustee, administrator, receiver or liquidator or
analogous officer of it or any material part of its property
or
(d) the presentation or filing of a petition in respect of it
(other than by the Lender in respect of any obligation under
this Agreement) in any court or before any agency alleging or
for the bankruptcy, winding-up or insolvency of Borrower (or
any analogous proceeding) or seeking any reorganisation,
arrangement, composition, re-adjustment, administration,
liquidation, dissolution or similar relief under any present
or future statute, law or regulation, such petition (except in
the case of a petition for winding-up or any analogous
proceeding in respect of which no such 30 day period shall
apply) not having been stayed or dismissed within 30 days of
its filing;
(e) the appointment of a receiver, administrator, liquidator or
trustee or analogous officer of Borrower over all or any
material part of Borrower's property; or
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1
(f) the convening of any meeting of its creditors for the purpose
of considering a voluntary arrangement as referred to in
Section 3 of the Insolvency Act 1986 (or any analogous
proceeding).
"Additional Interest Amount" shall bear the same meaning as that
ascribed in the terms and conditions of the Notes.
"Approved United Kingdom Intermediary" means a person who is approved
as such for the purposes of the Rules of the UK Inland Revenue relating
to stocklending and manufactured interest and dividends.
"Business Day" means a day on which banks and securities markets are
open for business generally in London and, in relation to the delivery
or redelivery of any of the following in relation to any loan, in the
place(s) where the relevant Securities or Equivalent Securities are to
be delivered.
"Close of Business" means the time at which banks close in the business
centre in which payment is to be made or Securities are to be
delivered.
"Equivalent Securities" means securities of an identical type, nominal
value, description and amount to particular Securities borrowed and
such term shall include the certificates and other documents of or
evidencing title and transfer in respect of the foregoing (as
appropriate). If and to the extent that such Securities are partly paid
or have been converted, subdivided, consolidated, redeemed, made the
subject of a takeover, capitalisation issue, rights issue or event
similar to any of the foregoing, the expression shall have the
following meaning:
(a) in the case of conversion, subdivision or consolidation the
securities into which the borrowed Securities have been
converted, subdivided or consolidated provided that if
appropriate, notice has been given in accordance with
sub-clause 4.2.6 of Clause 4.2;
(b) in the case of redemption, a sum of money equivalent to the
proceeds of the redemption;
(c) in the case of takeover, a sum of money or securities, being
the consideration or alternative consideration of which the
Lender has given notice to the Borrower in accordance with
sub-clause 4.2.6 of Clause 4.2;
(d) in the case of a call on partly paid securities, the paid-up
securities provided that the Lender shall have paid to the
Borrower an amount of money equal to the sum due in respect of
the call;
(e) in the case of a capitalisation issue, the borrowed Securities
TOGETHER WITH the securities allotted by way of a bonus
thereon;
(f) in the case of a rights issue, the borrowed Securities
TOGETHER WITH the securities allotted thereon, provided that
the Lender has given notice to the Borrower in accordance with
sub-clause 4.2.6 of Clause 4.2, and has paid to the Borrower
all and any sums due in respect thereof;
(g) in the event that a payment or delivery of Income is made in
respect of the borrowed Securities in the form of securities
or a certificate which may at a future date be exchanged for
securities or in the event of an option to take Income in the
form of securities or a certificate which may at a future date
be exchanged for
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securities, notice has been given to the Borrower in
accordance with sub-clause 4.2.6 of Clause 4.2 the borrowed
Securities TOGETHER WITH securities or a certificate
equivalent to those allotted; and
(h) in the case of any event similar to any of the foregoing, the
borrowed Securities TOGETHER WITH or replaced by a sum of
money or securities equivalent to that received in respect of
such borrowed Securities resulting from such event.
For the purposes of this definition, securities are equivalent to other
securities where they are of an identical type, nominal value,
description and amount and such term shall include the certificate and
other documents of or evidencing title and transfer in respect of the
foregoing (as appropriate).
"Event of Default" has the meaning given in Clause 9 (Event of
Default).
"Income" any interest, dividends or other distributions of any kind
whatsoever with respect to any Securities.
"Income Payment Date" with respect to any Securities means the date on
which Income is paid in respect of such Securities, or, in the case of
registered Securities, the date by reference to which particular
registered holders are identified as being entitled to payment of
Income.
"Manufactured Dividend" shall have the meaning given in sub-clause
4.2.2 of Clause 4.2.
"Maturity Date" shall bear the same meaning as that ascribed to it in
the terms and conditions of the Notes.
"Nominee" means an agent or a nominee appointed by either Party and
approved (if appropriate) as such by the Inland Revenue to accept
delivery of, hold or deliver Securities and/or Equivalent Securities on
its behalf whose appointment has been notified to the other Party.
"Notes" means the SEK denominated fixed and additional rate guaranteed
and secured mandatory exchangeable notes due 2006 to be issued by the
Lender, exchangeable into Series B shares of Tele2 AB.
"Parties" means the Lender and the Borrower and "Party" shall be
construed accordingly.
"Relevant Payment Date" shall have the meaning given in sub-clause
4.2.1 of Clause 4.2.
"Rules" means the rules for the time being of any regulatory authority
whose rules and regulations shall from time to time affect the
activities of the Parties pursuant to this Agreement including but not
limited to the stocklending regulations and guidance notes relating to
both stocklending and manufactured interest and dividends for the time
being in force of the Commissioners of the Inland Revenue and any
associated procedures required pursuant thereto.
"Securities" means Series B shares in Tele2 AB which the Borrower is
entitled to borrow from the Lender in accordance with the Rules and
which are the subject of a loan pursuant to this Agreement and such
term shall include the certificates and other documents of title in
respect of the foregoing.
1.2 All headings appear for convenience only and shall not affect the
interpretation hereof.
1.3 Notwithstanding the use of expressions such as "borrow", "lend",
"redeliver" etc. which are used to reflect terminology used in the
market for transactions of the kind provided for in
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this Agreement, title to Securities "borrowed" or "lent" in accordance
with this Agreement shall pass from one Party to another as provided
for in this Agreement, the Party obtaining such title being obliged to
redeliver Equivalent Securities as the case may be.
2 LOAN OF SECURITIES
2.1 The Lender will lend Securities to the Borrower, and the
Borrower will borrow Securities from the Lender in accordance
with the terms and conditions of this Agreement and with the
Rules, as follows:
2.1.1 description, title and amount of the Securities to be loaned:
8,968,414 Series B shares in Tele2 AB;
2.1.2 the loan of the Securities shall commence on the date hereof
and delivery of the Securities from the Lender to the Borrower
shall be effected on or about 22 July 2003 in accordance with
the standard settlement procedure for securities of this type
and, subject to redelivery of all Equivalent Securities
pursuant to Clause 5.2, the loan shall terminate on the
Maturity Date; and
2.1.3 the Securities shall be delivered into account no. 01000914461
in the name of Deutsche Bank AG London at SEB Stockholm (BIC
Code ESSESESSXXX).
3 DELIVERY OF SECURITIES
The Lender shall procure the delivery of Securities to the Borrower in
accordance with Clause 2 above TOGETHER WITH appropriate instruments of
transfer duly stamped where necessary and such other instruments as may
be requisite to vest title thereto in the Borrower. Such Securities
shall be deemed to have been delivered by the Lender to the Borrower on
delivery to the account referred to in Clause 2 above.
4 RIGHTS AND TITLE
4.1 The Parties shall execute and deliver all necessary documents and give
all necessary instructions to procure that all right, title and
interest in:
4.1.1 all Securities borrowed pursuant to Clause 2 (Loans of
Securities);
4.1.2 any Equivalent Securities redelivered pursuant to Clause 5
(Redelivery of Equivalent Securities);
shall pass from one Party to the other subject to the terms and
conditions mentioned herein and in accordance with the Rules, on
delivery or redelivery of the same in accordance with this Agreement,
free from all liens, charges and encumbrances. In the case of
Securities or Equivalent Securities title to which is registered in a
computer based system which provides for the recording and transfer of
title to the same by way of book entries, delivery and transfer of
title shall take place in accordance with the rules and procedures of
such system as in force from time to time. The Party acquiring such
right, title and interest shall have no obligation to return or
redeliver any of the assets so acquired but, in so far as any
Securities are borrowed, such Party shall be obliged, subject to the
terms of this Agreement, to redeliver Equivalent Securities as
appropriate.
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4.2
4.2.1 Where Income is paid in relation to any Securities on or by
reference to an Income Payment Date on which such Securities
are the subject of a loan hereunder, the Borrower shall, on
the date of the payment of such Income (the "Relevant Payment
Date") pay and deliver a sum of money or property equivalent
to the same (with any such endorsements or assignments as
shall be customary and appropriate to effect the delivery) to
the Lender or its Nominee, irrespective of whether the
Borrower received the same. The provisions of sub-clauses
4.2.2 to 4.2.4 of this Clause 4.2 below shall apply in
relation thereto.
4.2.2 Subject to sub-clause 4.2.3 of this Clause 4.2 below, in the
case of any Income comprising a payment, the amount (the
"Manufactured Dividend") payable by the Borrower shall be
equal to the amount of any Additional Interest Amount payable
by the Lender on the Notes in connection with such Income.
4.2.3 Where either the Borrower, or any person to whom the Borrower
has on-lent the Securities, is unable to make payment of the
Manufactured Dividend to the Lender without making any
withholding or deduction for or on account of any taxation
then, except where such withholding or deduction arises in
consequence of the warranty at Clause 7.1.4 being in material
respects untrue, the Borrower shall pay such additional
amounts as shall ensure (after taking account of any further
withholding or deduction for or on account of tax from such
additional amounts) that the net amount of the Manufactured
Dividend receivable by the Lender shall be as specified in
Clause 4.2.2. The Borrower shall also in all circumstances
supply a voucher evidencing the amount of any tax deducted or
withheld from such Manufactured Dividend.
4.2.4 In the event of the Borrower failing to remit either directly
or by its Nominee any sum payable pursuant to this Clause 4.2,
the Borrower hereby undertakes to pay interest at a rate to
the Lender (upon demand) on the amount due and outstanding at
the rate provided for in Clause 10 (Outstanding Payments).
Interest on such sum shall accrue daily commencing on and
inclusive of the third Business Day after the Relevant Payment
Date, unless otherwise agreed between the Parties.
4.2.5 Borrower undertakes that where it holds securities of the same
description as any securities borrowed by it at a time when a
right to vote arises in respect of such securities, it will
use its best endeavours to arrange for the voting rights
attached to such securities to be exercised in accordance with
the instructions of the Lender provided always that Lender
shall use its best endeavours to notify the other of its
instructions in writing no later than seven Business Days
prior to the date upon which such votes are exercisable or as
otherwise agreed between the Parties and that Borrower shall
not be obliged so to exercise the votes in respect of a number
of Securities greater than the number so lent to it. For the
avoidance of doubt the Parties agree that subject as
hereinbefore provided any voting rights attaching to the
relevant Securities and/or Equivalent Securities, shall be
exercisable by the persons in whose name they are registered
or in the case of Securities and/or Equivalent Securities in
bearer form, the persons by or on behalf of whom they are
held, and not necessarily by the Borrower.
4.2.6 Where, in respect of any borrowed Securities, any rights
relating to conversion, sub-division, consolidation,
pre-emption, rights arising under a takeover offer or
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other rights, including those requiring election by the holder
for the time being of such Securities, become exercisable
prior to the redelivery of Equivalent Securities, then the
Lender may, within a reasonable time before the latest time
for the exercise of the right or option give written notice to
the Borrower that on redelivery of Equivalent Securities it
wishes to receive Equivalent Securities in such form as will
arise if the right is exercised or, in the case of a right
which may be exercised in more than one manner, is exercised
as is specified in such written notice.
4.2.7 Any payment to be made by the Borrower under this Clause 4.2
shall be made in a manner to be agreed between the Parties.
5 REDELIVERY OF EQUIVALENT SECURITIES
5.1 The Borrower undertakes to redeliver Equivalent Securities in
accordance with this Agreement. For the avoidance of doubt any
reference herein or in any other agreement or communication between the
Parties (howsoever expressed) to an obligation to redeliver or account
for or act in relation to borrowed Securities shall accordingly be
construed as a reference to an obligation to redeliver or account for
or act in relation to Equivalent Securities.
5.2 The Lender may call for the redelivery of all or any Equivalent
Securities at any time by giving notice on any Business Day of not less
than the standard settlement time for such Equivalent Securities on the
exchange or in the clearing organisation through which the relevant
borrowed Securities were originally delivered, provided that on the
date of such call the Lender establishes to the reasonable satisfaction
of the Borrower that one of the following conditions is met:
5.2.1 the Equivalent Securities are intended for use by the Lender
in satisfaction of its obligation to deliver Exchange Property
(as that term is or is to be defined for the purposes of the
Notes) to holders of Notes; or
5.2.2 the Notes are no longer to be issued by the Lender during a
period of 45 days from the date hereof;
5.2.3 an Event of Default has occurred in relation to the Borrower.
5.3 The Borrower shall as hereinafter provided redeliver such Equivalent
Securities not later than the expiry of such notice in accordance with
the Lender's instructions.
5.4 If the Borrower does not redeliver Equivalent Securities in accordance
with such call, the Lender may elect to continue the loan of Securities
provided that if the Lender does not elect to continue the loan the
Lender may by written notice to the Borrower elect to terminate the
loan.
5.5 In the event that as a result of the failure of the Borrower to
redeliver Equivalent Securities to the Lender in accordance with this
Agreement a "buy-in" is exercised against the Lender then provided that
reasonable notice has been given to the Borrower of the likelihood of
such a "buy-in", the Borrower shall account to the Lender for the total
costs and expenses reasonably incurred by the Lender as a result of
such "buy-in".
5.6 The Borrower shall be entitled at any time to terminate a particular
loan of Securities and to redeliver all and any Equivalent Securities
due and outstanding to the Lender in accordance with the Lender's
instructions. The Lender shall accept such redelivery.
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6 TAXATION
6.1 The Borrower hereby undertakes promptly to pay and account for any
transfer or similar duties or taxes chargeable in connection with any
transaction effected pursuant to or contemplated by this Agreement, and
shall indemnify and keep indemnified the Lender against any liability
arising in respect thereof as a result of the Borrower's failure to do
so.
6.2 The Borrower undertakes to notify the other Party if it ceases to be an
Approved United Kingdom Intermediary.
7 LENDER'S WARRANTIES
7.1 The Lender hereby warrants and undertakes to the Borrower on a
continuing basis to the intent that such warranties shall survive the
completion of any transaction contemplated herein that:
7.1.1 it is duly authorised and empowered to perform its duties and
obligations under this Agreement;
7.1.2 it is not restricted under the terms of its constitution or in
any other manner from lending Securities in accordance with
this Agreement or from otherwise performing its obligations
hereunder;
7.1.3 it is absolutely entitled to pass full legal and beneficial
ownership of all Securities provided by it hereunder to the
Borrower free from all liens, charges and encumbrances; and
7.1.4 it is not resident in the United Kingdom for tax purposes and
either is not carrying on a trade in the United Kingdom
through a branch or agency or if it is carrying on such a
trade the loan is not entered into in the course of the
business of such branch or agency, and it has (i) delivered or
caused to be delivered to the Borrower a duly completed and
certified Certificate (MOD2) or a photocopy thereof bearing an
Inland Revenue acknowledgement and unique number and such
Certificate or photocopy remains valid or (ii) has taken all
necessary steps to enable a specific authorisation to make
gross payment of the Manufactured Dividend to be issued by the
Inland Revenue.
8 BORROWER'S WARRANTIES
8.1 The Borrower hereby warrants and undertakes to the Lender on a
continuing basis to the intent that such warranties shall survive the
completion of any transaction contemplated herein that:
8.1.1 it has all necessary licenses and approvals, and is duly
authorised and empowered, to perform its duties and
obligations under this Agreement and will do nothing
prejudicial to the continuation of such authorisation,
licences or approvals;
8.1.2 it is not restricted under the terms of its constitution or in
any other manner from borrowing Securities in accordance with
this Agreement or from otherwise performing its obligations
hereunder;
8.1.3 it is acting as principal in respect of this Agreement; and
8.1.4 it is an Approved United Kingdom Intermediary.
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9 EVENTS OF DEFAULT
9.1 Each of the following events occurring in relation to the Borrower
shall be an Event of Default for the purpose of Clause 5.2.3:
9.1.1 the Borrower failing to comply with sub-clauses 4.2.1, 4.2.2
or 4.2.3 of Clause 4.2;
9.1.2 an Act of Insolvency occurring with respect to the Borrower;
9.1.3 any representations or warranties made by the Borrower being
incorrect or untrue in any material respect when made or
repeated or deemed to have been made or repeated;
9.1.4 the Borrower admitting to the Lender that it is unable to, or
it intends not to, perform any of its obligations hereunder
and/or in respect of any loan hereunder;
9.1.5 the Borrower being declared in default by the appropriate
authority under the Rules or being suspended or expelled from
membership of or participation in any securities exchange or
association or other self-regulatory organisation, or
suspended from dealing in securities by any government agency;
9.1.6 any of the assets of the Borrower or the assets of investors
held by or to the order of the Borrower being transferred or
ordered to be transferred to a trustee by a regulatory
authority pursuant to any securities regulating legislation;
or
9.1.7 the Borrower failing to perform any other of its obligations
hereunder and not remedying such failure within 30 days after
the Lender serves written notice requiring it to remedy such
failure;
and, in each case, the Lender serves written notice on the
Borrower.
9.2 Borrower shall notify the Lender if an Event of Default occurs in
relation to it.
10 OUTSTANDING PAYMENTS
In the event of Borrower failing to remit either directly or by its
Nominee sums in accordance with this Agreement, Borrower hereby
undertakes to pay interest at a rate to the Lender upon demand on the
net balance due and outstanding of 1% above the Barclays Bank PLC base
rate from time to time in force.
11 OBSERVANCE OF PROCEDURES
Each of the Parties hereto agrees that in taking any action that may be
required in accordance with this Agreement it shall observe strictly
the procedures and timetable applied by the Rules and, further, shall
observe strictly any agreement (oral or otherwise) as to the time for
delivery or redelivery of any money, Securities or Equivalent
Securities, entered into pursuant to this Agreement.
12 SEVERANCE
If any provision of this Agreement is declared by any judicial or other
competent authority to be void or otherwise unenforceable, that
provision shall be severed from the Agreement and the remaining
provisions of this Agreement shall remain in full force and effect. The
Agreement shall, however, thereafter be amended by the Parties in such
reasonable
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manner so as to achieve, without illegality, the intention of the
Parties with respect to that severed provision.
13 SPECIFIC PERFORMANCE
Each Party agrees that in relation to legal proceedings it will not
seek specific performance of the other Party's obligation to deliver or
redeliver Securities, but without prejudice to any other rights it may
have.
14 NOTICES
All notices issued under this Agreement shall be in writing (which
shall include telex or facsimile messages) and shall be deemed validly
delivered if sent by prepaid first class post to or left at the
addresses or sent to the telex or facsimile number of the Parties
respectively or such other addresses or telex or facsimile numbers as
each Party may notify in writing to the other.
15 ASSIGNMENT
Neither Party may charge, assign or transfer all or any of its rights
or obligations hereunder without the prior consent of the other Party,
save that:
(i) the Lender may assign its rights under this Agreement in whole
but not in part to any person from time to time appointed to
act as trustee in connection with the issue of the Notes; and
(ii) the Borrower may, with the consent of the Lender, such consent
not to be unreasonably withheld or delayed, assign this
Agreement and its rights and obligations under this Agreement
to any affiliate of the Borrower provided such affiliate
agrees to be bound by the terms of this Agreement and can make
the Borrower's warranties as set out in Clause 8.1, where an
affiliate shall mean, in relation to Borrower, any holding
company, subsidiary or any other subsidiaries of any such
holding company.
16 NON-WAIVER
No failure or delay by either Party to exercise any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise of any right, power or privilege preclude
any other or further exercise thereof or the exercise of any other
right, power or privilege as herein provided.
17 CONSEQUENTIAL LOSS
Without limiting the generality of the foregoing (including, but not
limited to, Clause 5.5), neither Party may claim any sum by way of
consequential loss or damage in the event of a failure by the other
Party to perform any of its obligations under this Agreement.
18 TIME
Time shall be of the essence of the Agreement.
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19 RECORDING
The Parties agree that each may electronically record all telephonic
conversations between them.
20 GOVERNING LAW
20.1 This Agreement is governed by, and shall be construed in accordance
with, English Law and the Parties hereby irrevocably submit to the
exclusive jurisdiction of the English courts.
20.2 Lender hereby appoints Metro International UK Limited of 3rd Floor,
Interpark House, 7 Down Street, London W1J 7AJ (attention CFO) as its
agent to receive on its behalf service of process in such courts. If
any such person ceases to act as its agent for service of process,
Lender shall promptly appoint, and notify Borrower of the identity of,
a new agent in England.
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IN WITNESS WHEREOF this Agreement has been executed on behalf of the Parties
hereto the day and year first before written.
SIGNED BY ) MARCUS LEGRICE
)
)
ON BEHALF OF )
Deutsche Bank AG London Branch
SIGNED BY ) JOHN RATCLIFFE
) MARC BEULS
)
ON BEHALF OF )
Millicom Telecommunications S.A.
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