Exhibit 4.38


 


 


TAX
SHARING AGREEMENT


 


by and
between


 


ClearWave
N.V.


 


and


 


Mobifon
Holdings B.V.


 


 


Dated as
of March 15, 2004


 





















 


TABLE OF
CONTENTS


 


 


	
  Article 1

  	
  Preparation of Financials

  	
  4

  
	
   

  	
   

  	
   

  
	
  Article 2

  	
  First Application

  	
  4

  
	
   

  	
   

  	
   

  
	
  Article 3

  	
  Determination of Tax Profit or Loss

  	
  4

  
	
   

  	
   

  	
   

  
	
  Article 4

  	
  Tax Refund to Parent

  	
  4

  
	
   

  	
   

  	
   

  
	
  Article 5

  	
  Tax Refund to Subsidiary

  	
  4

  
	
   

  	
   

  	
   

  
	
  Article 6

  	
  Reassessment; Reconciliation

  	
  5

  
	
   

  	
   

  	
   

  
	
  Article 7

  	
  Termination

  	
  5

  
	
   

  	
   

  	
   

  
	
  Article 8

  	
  Miscellaneous

  	
  5

  
	
   

  	
   

  	
   

  
	
  Article 9

  	
  Applicable law – Dispute Settlement

  	
  5

  



 





















 


TAX
SHARING AGREEMENT


 


THIS TAX SHARING AGREEMENT (THE “AGREEMENT”)
IS EFFECTIVE AS OF MARCH 15, 2002 (THE “EFFECTIVE DATE”),


 


BY AND AMONG:


 


1.                                       ClearWave N.V. a private company with limited liability
incorporated under the laws of the Netherlands, with its statutory seat in
Amsterdam, the Netherlands and with its principal place of business at Strawinskylaan
707, 1077 XX, Amsterdam, the Netherlands, hereinafter referred to as “Parent”,


 


and


 


2.                                       Mobifon Holdings B.V. a private company with limited
liability incorporated under the laws of the Netherlands, with its statutory
seat in Amsterdam, the Netherlands and with its principal place of business at
Strawinskylaan 707, 1077 XX, Amsterdam, the Netherlands, hereinafter referred
to as “Subsidiary”,


 


Parent and Subsidiary hereinafter collectively being referred to as the
“Parties”.


 


WHEREAS:


 


•                                          Parent
is holder of all issued and outstanding shares in Subsidiary;


 


•                                          Parent
and Subsidiary are treated as a fiscal unity under article 15 of the Dutch
Corporation Tax Act as of March 15, 2002, being the date of incorporation
of Subsidiary by Parent.  As a
consequence all corporation tax assessment for the unity are directed at the
Parent; and


 


•                                          Parent
and Subsidiary desire to agree upon a method of determining the financial
consequences of filing the corporation tax return as a fiscal unity. Since each
party is a legal entity with its own profit and loss account, parties desire to
agree upon an allocation of the tax paid by the unity in a manner that property
reflects the share of tax that should be borne by each of the separate entities
of the unity.


 





















 


NOW THEREFORE, THE PARTIES HAVE AGREED AS
FOLLOWS:


 


Article 1                                               Preparation
of Financials


 


Each Party will annually prepare stand alone
balance sheet and profit and loss accounts as determined by application of the rules and
regulations of the Dutch Corporation Tax Act 1969, using the methods and
prudence rules (In Dutch: Goel Koopmansgebruik)
as used by the parent in the corporation tax return of the unity, as if the
fiscal unity does not exist.


 


Article 2                                               First
Application


 


This tax profit and loss account and balance
sheet will be first determined for the tax year 2002, being the first year in
which Parent and Subsidiary are treated as a fiscal unity under article 15
of the Dutch Corporation Tax Act 1969.


 


Article 3                                               Determination
of Tax Profit or Loss


 


Each party will determine the amount of tax payable
to or due by the tax authorities based on the aforementioned tax profit and
loss accounts and balance sheets for all the relevant years, as if the fiscal
unity does not exist.


 


Article 4                                               Tax
Refund to Parent


 


If with respect to Parent, based on the stand
alone tax profit and loss accounts and balance sheets, any tax would have been
due but for the circumstance that it is part of the fiscal unity. Parent will
be due such same amount to Subsidiary within 6 months after the end of the tax
year.


 


Article 5                                               Tax
Refund to Subsidiary


 


If with respect to Subsidiary, based on the
stand alone tax profit and loss accounts and balance sheets, any tax would have
been due but for the circumstance that it is part of the fiscal unity.  Subsidiary will be due such same amount to
Parent within 6 months after the end of the tax year.


 





















 


Article 6                                               Reassessment;
Reconciliation


 


If upon audit by the tax authorities or due to agreements with the tax
authorities or as a result from litigation or otherwise in final assessment,
the tax profit and loss and balance sheet of Parent and or Subsidiary do not
properly reflect the tax position of Parent and or Subsidiary had it not been
part of the fiscal unity. Parent respectively Subsidiary will amend its tax
profits and loss account to reflect such final assessment. If tax profit and
loss accounts need to be restated, reconciliatory payments between Parent and
Subsidiary will take place within three months after the tax assessment has
become final.


 


Article 7                                               Termination


 


This Agreement may be terminated by either party given at least one
month’s prior written notice to the other party. In such event termination
shall take effect as per the tax year starting following the year in which the
written notice was given. In any event this Agreement shall terminate as per
the date the fiscal unity under article 15 of the Dutch Corporation Tax
Act 1969 shall terminate with respect to Parent and Subsidiary.


 


Article 8                                               Miscellaneous


 


This Agreement may be executed in two (2) or more counterparts,
all of which, taken together, shall be effective as if all signatures on the
counterparts were on a single copy of this Agreement.


 


Article 9                                               Applicable
law – Dispute Settlement


 


This Agreement is construed by and shall be governed in accordance with
the laws of the Netherlands.


 


Any dispute, controversy or claim arising under, out of, or relating
to, this Agreement, shall be referred to the competent court in Amsterdam, the
Netherlands.


 


THUS AGREED UPON AND, IN WITNESS WHEREOF, THE
PARTIES HERETO HAVE CAUSED THIS AGREEMENT TO BE EXECUTED ON MARCH 19, 2004
TO BE EFFECTIVE AS OF THE EFFECTIVE DATE.


 





















 


 


	
  ClearWave N.V.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Mr Kees van Ravenhorst

  	
   

  	
   

  
	
  Name:

  	
  Mr Kees van Ravenhorst

  	
   

  
	
   

  	
  Managing Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  MobiFon Holdings B.V.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ ClearWave N.V.

  	
   

  	
   

  
	
  Name:

  	
  ClearWave N.V.

  	
   

  
	
  Title:

  	
  Managing Director