Exhibit 4(zz)
Reach Shareholders
(Variation) Agreement No. 6
between
TELSTRA CORPORATION LIMITED
as Telstra
TELSTRA HOLDINGS (BERMUDA) NO 1 LIMITED
as Telstra Shareholder
TELSTRA HOLDINGS PTY LIMITED
as Telstra Holding
PCCW LIMITED
as PCCW
PACIFIC CENTURY CABLE HOLDINGS LIMITED
as PCCW Shareholder
and
REACH LTD.
as Reach
relating to
Reach Shareholders' Agreement dated 13 October ▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Kong Center ▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
T (▇▇▇) ▇▇▇▇ ▇▇▇▇ F (▇▇▇) ▇▇▇▇ ▇▇▇▇ DX 009121 Central 1
CONTENTS
1. INTERPRETATION.....................................................1
2. VARIATION OF ORIGINAL AGREEMENT....................................2
3. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT............................2
4. COUNTERPARTS.......................................................2
5. LAW AND JURISDICTION...............................................2
SCHEDULE ...................................................................3
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THIS AGREEMENT is dated 16 April 2005 and made
BETWEEN:
(1) TELSTRA CORPORATION LIMITED (ABN 33 051 775 556) of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ("Telstra");
(2) TELSTRA HOLDINGS (BERMUDA) NO 1 LIMITED of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ("Telstra Shareholder");
(3) TELSTRA HOLDINGS PTY LIMITED (ABN 45 057 808 938) of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ("Telstra Holding");
(4) PCCW LIMITED (formerly Pacific Century CyberWorks Limited) of ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ("PCCW");
(5) PACIFIC CENTURY CABLE HOLDINGS LIMITED of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ("PCCW Shareholder"); and
(6) REACH LTD. (formerly known as Joint Venture (Bermuda) No. 1 Limited) of
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ("Reach").
together the "Parties" and each a "Party"
Background:
(A) The Parties entered into the Reach Shareholders' Agreement dated 13
October 2000 ("Original Agreement"), pursuant to which Telstra and PCCW
agreed to form Reach as a joint venture into which Telstra and PCCW
combined their respective global wholesale businesses.
(B) The Original Agreement was varied pursuant to the IP Backbone Company
Shareholders (Variation) Agreement dated 31 January 2001, the IP Backbone
Shareholders (Variation) Agreement No. 2 dated 8 March 2001, the IP
Backbone Shareholders (Variation) Agreement No. 3 dated April 2002, the
Reach Shareholders (Variation) Agreement No. 4 dated 26 June 2002 and the
Reach Shareholders (Variation) Agreement No. 5 dated 15 April 2003
referred to in this Agreement as the "Previous Variation Agreements".
(C) The Parties now wish to further vary the terms of the Original Agreement
and have agreed to vary and restate the Original Agreement in the manner
provided for in this Agreement.
NOW IN CONSIDERATION FOR THE MUTUAL COVENANTS CONTAINED HEREIN IT IS HEREBY
AGREED as follows:
1. INTERPRETATION
1.1 Previously defined terms
Terms defined in the Original Agreement shall, save to the extent that the
context otherwise requires, bear the same respective meanings in this
Agreement.
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2. VARIATION OF ORIGINAL AGREEMENT
2.1 Variations
With effect from the date of this Agreement, the Original Agreement (as
amended by the Previous Variation Agreements) shall be amended and
restated as set out in the Schedule to this Agreement.
2.2 Original Agreement confirmed
Save as varied by this Agreement, the Original Agreement (as amended by
the Previous Variation Agreements) is confirmed and shall remain in full
force and effect.
3. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT
No person who is not a party to this Agreement shall have any rights under
the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Agreement.
4. COUNTERPARTS
4.1 Execution of counterparts
This Agreement may be executed in any number of counterparts which
together shall constitute one agreement. Each Party may enter into this
Agreement by executing a counterpart and this Agreement shall not take
effect until it has been executed by all Parties.
5. LAW AND JURISDICTION
5.1 English Law
This Agreement shall be governed by, and construed in accordance with,
English law.
5.2 Submission to jurisdiction
Each Party submits to the non-exclusive jurisdiction of the courts of
England and courts of appeal from them. Each Party waives any right it has
to object to an action being brought in those courts including, without
limitation, by claiming that the action has been brought in an
inconvenient forum or that those courts do not have jurisdiction.
IN WITNESS whereof the Parties have caused this Agreement to be duly executed
on the day and year first written.
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SCHEDULE
3
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Dated 2000
Reach Shareholders Agreement
-
Amended and Restated 16 April 2005
Telstra Corporation Limited
("Telstra")
Telstra Holdings Pty Limited
("Telstra Holding")
Telstra Holdings (Bermuda) No 1 Limited
("Telstra Shareholder")
PCCW Limited
("PCCW")
Pacific Century Cable Holdings Limited
("PCCW Shareholder")
Reach Ltd.
("Company")
Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Solicitors
Governor ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Tel: ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇▇
DX: ▇▇▇ ▇▇▇▇▇▇
Ref: DAW/LMW
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Contents Shareholders Agreement
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1 Interpretation 1
2 Commencement and Completion 14
3 [Intentionally blank] 14
4 Business of the Company Group 14
5 Board of Directors and management 16
6 Responsibilities of the Board 24
7 Management and operations 25
8 Capital and Funding 29
9 Restrictions on disposal of Shares etc. 32
10 Related Party Operations Principles and Arrangements 39
11 Performance and relationship 42
12 Related party agreements 44
13 Default 45
14 Regulatory issues 46
15 Constitution of Company and subsidiaries 46
16 Warranties and Undertakings 46
17 Indemnities 51
18 Company information 51
19 Confidentiality 55
20 Expiry 63
21 Severability 64
22 Entire agreement 64
23 No representations or warranties 64
24 No undisclosed principals or undisclosed trusts 64
25 No partnerships 65
26 Assignment 65
27 Notices 65
28 General 66
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29 Governing law 68
Schedule 1 [Intentionally blank] 70
Schedule 2 [Intentionally blank] 71
Schedule 3 [Intentionally blank] 72
Schedule 4 [Intentionally blank] 73
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Reach Shareholders Agreement - as amended
and restated on 16 April 2005
Date: 13 October 2000
Parties: TELSTRA CORPORATION LIMITED
(ABN 33 051 775 556) of
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ("Telstra")
TELSTRA HOLDINGS (BERMUDA) NO 1 LIMITED of
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ("Telstra Shareholder")
TELSTRA HOLDINGS PTY LIMITED (ABN 45 057 808
938) of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ("Telstra Holding")
PCCW LIMITED (formerly known as Pacific
Century CyberWorks Limited) of ▇▇/▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇, ▇▇▇▇ ▇▇▇▇ ("PCCW")
PACIFIC CENTURY CABLE HOLDINGS LIMITED of
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ("PCCW Shareholder")
REACH LTD. (formerly known as
Joint Venture (Bermuda) No 1
Limited) of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ("Company")
Recitals:
A. Telstra and PCCW have agreed to form the
Company as a joint venture into which Telstra
and PCCW will combine their respective global
wholesale businesses.
B. The Parties agree to regulate the management
of the Company and related operational issues
on the terms set out in this agreement.
Operative provisions:
1 Interpretation
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Definitions
1.1 In this agreement, these meanings apply
unless the contrary intention appears:
2005 Agreements means the Reach Debt and
Asset Restructure Deed together with the
agreements listed in clause 3 of that deed.
20% Shareholder means a Founder Shareholder
that holds 20% or more of the total issued
Shares.
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25% Shareholder means a Founder Shareholder
that holds 25% or more of the total issued
Shares and is not a defaulting Shareholder
(as defined in clause 13.1).
35% Shareholder means a Founder Shareholder
that holds 35% or more of the total issued
Shares and is not a defaulting Shareholder
(as defined in clause 13.1).
Agreed Scope, in relation to the Business,
means the scope and activities of the
Business set out in clause 4 as from time to
time changed by or in accordance with
resolutions of the Board made in conformity
with clause 5.31.
Agreed Uncommitted Capex is defined in the
Capacity Allocation Agreement.
Approved Business Plan is the Business Plan
that has most recently been adopted by the
Board pursuant to clauses 7.13 to 7.15 as
from time to time revised by the Board.
Associated Company of ▇▇ ▇▇ means a body
corporate where individually or collectively,
(a) PCCW, and/or
(b) ▇▇ ▇▇, and/or
(c) one or more Family Interests of ▇▇ ▇▇,
and/or
(d) one or more Trust Interests of ▇▇ ▇▇,
directly or indirectly:
(e) owns or own 35% or more of the
issued capital of,
(f) is or are entitled to 35% or more of
the economic interest in,
(g) can exercise or control the exercise
of 35% or more of the votes that may
be cast at general meetings of
members of, or
(h) can control the composition of a
majority of the board of directors
of,
the body corporate.
Associated Company of PCCW means a body
corporate where, individually
or collectively,
(a) PCCW, and/or
(b) ▇▇ ▇▇, and/or
(c) one or more Family Interests of ▇▇ ▇▇,
and/or
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(d) one or more Trust Interests of ▇▇ ▇▇,
directly or indirectly:
(e) owns or own 35% or more of the
issued capital of,
(f) is or are entitled to 35% or more of
the economic interest in,
(g) can exercise or control the exercise of
35% or more of the votes that may be cast
at general meetings of members of, or
(h) can control the composition of a majority
of the board of directors of,
the body corporate.
Associated Company of Telstra means a body
corporate where Telstra directly or
indirectly,
(a) owns 35% or more of the issued capital
of,
(b) is entitled to 35% or more of the
economic interest in,
(c) can exercise or control the exercise of
35% or more of the votes that may be cast
at general meetings of members of, or
(d) can control the composition of a majority
of the board of directors of,
the body corporate.
Associated Company of the Company means a
body corporate where the Company directly or
indirectly:
(e) owns 35% or more of the issued capital
of,
(f) is entitled to 35% or more of the
economic interest in,
(g) can exercise or control the exercise of
35% or more of the votes that may be cast
at general meetings of members of, or
(h) can control the composition of a majority
of the board of directors of,
the body corporate.
Authorised Officer means a person appointed
by a party to act as an Authorised Officer
for the purposes of this agreement.
Board means all or some of the Directors
acting as a board.
Budget in relation to a Financial
Year, means a detailed operating budget for
the Company Group for the Financial Year
containing:
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(a) projections as at the end of each month
of:
(i) consolidated income, expenses, cashflow
and balance sheet for the Company and
its subsidiaries ("reporting entity");
(ii) income, expenses, cashflow and balance
sheet of each Company Entity; and
(b) forecasts of capital expenditure and
working capital requirements for the
reporting entity and each Company Entity
during each month and whether any
additional funds will be required.
Business means the business carried on by the
Company Group at any time in accordance with
the terms of this agreement (as amended from
time to time).
Business Day means a day not being a
Saturday, Sunday or public holiday in Sydney
or Hong Kong.
Business Plan means, a business plan for the
conduct, operations, administration and
development of the Company Group and the
business, investments and affairs of the
Company Group.
Capacity Allocation Agreement means the
agreement entitled "Capacity Allocation
Agreement" between the Founders, Reach Global
Networks Ltd, and PCCW Communications
(Singapore) Pte Ltd.
CEO means the chief executive officer of the
Company.
CFO means the chief financial officer of the
Company.
Chairman means the Director who is chairman
of the Board and meetings of the members of
the Company.
Commencement Date means the date of this
agreement (13 October 2000).
Committed Capex is defined in the Capacity
Allocation Agreement
Companies Ordinance means the Companies
Ordinance, Chapter 32 of the Laws of Hong
Kong.
Company Entity means the Company or a
subsidiary of the Company.
Company Group means the Company and its
subsidiaries and a reference to the Company
Group includes a reference to any one or more
of the Company and its subsidiaries.
Company Information is information of any
kind (including financial data and
information that is Confidential Information
of the Company as defined in clause 19.1(f))
relating to or produced or used for or in
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connection with the Company Group or the
Business or assets, liabilities or other
affairs of the Company Group.
Completion means Completion as defined in the
Completion Agreement.
Completion Agreement means the Project Five
Star Completion Agreement between the
Founders and others dated the same day as
this agreement.
Completion Date or date of Completion is the
date on which Completion occurs.
Connectivity means capacity and connectivity
for the carriage of Telecommunications
Traffic.
Connectivity Infrastructure means
telecommunications networks, infrastructure
and facilities, and related systems for
providing Connectivity for Connectivity
Services.
Connectivity Service is a telecommunications
service that provides Connectivity.
Constitution means the memorandum of
association and bye laws of the Company.
controlled corporation of Telstra means a
body corporate where, individually or
collectively,
(a) Telstra, and/or
(b) one or more Associated Companies of
Telstra, and/or
(c) one or more Telstra Trust interests,
directly or indirectly:
(d) owns or own 35% or more of the issued
capital of,
(e) is or are entitled to 35% or more of the
economic interest in,
(f) may exercise or control the exercise of
35% or more of the votes that may be cast
at general meetings of members of, or
(g) may control the composition of the
majority of the board of directors of,
the body corporate.
controlled corporation of PCCW means a body
corporate, where individually or
collectively,
(a) PCCW, and/or
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(b) one of more Associated Companies of PCCW,
and/or
(c) one or more PCCW Trust Interests, and/or
(d) one or more Family Interests of ▇▇ ▇▇,
and/or
(e) one or more Associated Companies of ▇▇
▇▇,
directly or indirectly:
(f) owns or own 35% or more of the issued
capital of,
(g) is or are entitled to 35% or more of the
economic interest in,
(h) may exercise or control the exercise of
35% or more of the votes that may be cast
at general meetings of members of, or
(i) may control the composition of the
majority of the board of directors of,
the body corporate.
controlled corporation of ▇▇ ▇▇ means a body
corporate where, individually or
collectively,
(a) ▇▇ ▇▇, and/or
(b) one or more Family Interests of ▇▇ ▇▇,
and/or
(c) one or more Trust Interests of ▇▇ ▇▇,
and/or
(d) one or more Associated Companies of ▇▇
▇▇, and/or
(e) PCCW; and/or
(f) one or more Associated Companies of PCCW;
and/or
(g) one or more PCCW Trust Interests,
directly or indirectly:
(h) owns or own 35% or more of the issued
capital of,
(i) is or entitled to 35% or more of the
economic interest in,
(j) may exercise or control the exercise of
35% or more of the votes that may be cast
at general meetings of members of, or
(k) may control the composition of the
majority of the board of directors of,
the body corporate.
controlled corporation of the Company means a
body corporate where individually or
collectively:
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(a) the Company, and/or
(b) one or more Associated Companies of the
Company,
directly or indirectly:
(c) owns or own 35% or more of the issued
capital of,
(d) is or are entitled to 35% or more of the
economic interest in,
(e) can exercise or control the exercise of
35% or more of the votes that may be cast
at general meetings of, or
(f) can control the composition of the
majority of the board of directors of,
the body corporate.
COO means the chief operations officer of the
Company.
Corporations Law has the meaning it has in
the Corporations ▇▇▇ ▇▇▇▇ of the Commonwealth
of Australia.
Deputy Chairman means the Director who is the
deputy chairman of the Board and meetings of
members of the Company.
Director means a director of the Company.
direct wholly-owned subsidiary, in relation
to a body corporate, means a subsidiary of
the body corporate where none of the shares
(of whatever kind) in the subsidiary are held
by a person other than the body corporate or
are the subject of any Security Interest
except a Security Interest created and
subsisting as permitted pursuant to clause 9
for that subsidiary.
dispose of, in relation to a security, means
any dealing with the security including a
sale, transfer, assignment, creation of a
trust or option or Security Interest over or
in respect of or swap or alienation of all or
any part of the rights attaching to the
security, or any legal or equitable interest
in the security.
economic entity includes a body corporate,
trust, joint venture, partnership or other
economic entity.
Embargoed PCCW Shareholder Securities means
all PCCW Shareholder Securities except for
any that have been transferred in accordance
with clause 9.9 or 9.11.
Embargoed Telstra Shareholder Securities
means all Telstra Shareholder Securities
except for any that have been transferred in
accordance with clause 9.10 or 9.12.
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Existing Business means the existing business
entities, investments, assets and businesses
that are acquired by the Company Group upon
Completion pursuant to the Establishment
Agreements.
Family Interest of ▇▇ ▇▇ means ▇▇ ▇▇'▇ spouse
and/or any child or step-child under the age
of 18 years of ▇▇ ▇▇ or his spouse.
Financial Year is a period of 12 consecutive
months ending on 31 December, provided that
the first Financial Year will begin on the
Completion Date and end on 31 December 2001.
Founder means PCCW or Telstra.
Founder Group means Telstra Group or PCCW
Group.
Founder Shareholder means the PCCW
Shareholder or the Telstra Shareholder.
Government Agency means any Minister,
governmental, semi-governmental, regulatory,
administrative, fiscal, judicial or
quasi-judicial body, department, commission,
authority, tribunal, agency or official.
Hong Kong means the Hong Kong Special
Administrative Region of the Peoples Republic
of China.
A body corporate is Insolvent if:
(a) an order is made or an effective
resolution has been passed for it to be
wound up, or dissolved without winding-up
(otherwise than for the purposes of
reconstruction or amalgamation) and that
order or resolution has been in effect
for a continuous period of more than 30
days;
(b) a receiver, receiver manager, judicial
manager, liquidator, provisional
liquidator, official manager,
administrator, trustee or like official
has been appointed over the whole or any
material part of its undertaking or
property and the appointment has been in
effect for a continuous period of more
than 30 days;
(c) an encumbrancer or other holder of a
Security Interest has taken possession of
the whole or any material part of its
undertaking or property and has been in
possession for a continuous period of
more than 30 days;
(d) any distress, execution, sequestration or
other similar process has been levied or
enforced upon or sued out against the
whole or any material part of its
property and has remained undischarged
for a continuous period of more than 30
days;
(e) it has made an assignment for the benefit
of creditors (including a class of
creditors) generally;
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(f) it is subject to any arrangement,
assignment, moratorium or composition,
protected from creditors under any
statute or dissolved (in each case, other
than to carry out a reconstruction or
amalgamation while solvent on terms
approved in writing by the Founders); or
(g) a situation substantially analogous to
any of (a) to (f) exists in connection
with the body corporate under the law of
any jurisdiction.
Establishment Agreements means:
(a) the agreements included in the definition
of "Establishment Agreements" in the
Completion Agreement;
(b) the Completion Agreement; and
(c) any agreements entered into pursuant to
clause 10.10 or 10A (as those clauses
have operated from time to time)
▇▇ ▇▇ means ▇▇▇▇▇▇▇ ▇▇ Tzar Kai.
Party means a Founder, a Founder Shareholder
and in accordance with clauses 1.4 and 1.5,
the Company and Telstra Holding.
PCCW Entity means PCCW or a subsidiary of
PCCW.
PCCW Group means PCCW, and its subsidiaries
and a reference to the PCCW Group includes a
reference to any one or more of PCCW and its
subsidiaries but does not include a reference
to the Company or any of its subsidiaries.
PCCW Interest means,
(a) ▇▇ ▇▇,
(b) a controlled corporation of PCCW;
(c) a controlled corporation of ▇▇ ▇▇;
(d) a Family Interest of ▇▇ ▇▇, or
(e) a Trust Interest of ▇▇ ▇▇.
PCCW Parties means PCCW and the PCCW
Shareholder.
PCCW Shareholder Security means an issued
share in the capital, or other security, of
the PCCW Shareholder.
PCCW Shares means all Shares:
(a) held by the PCCW Shareholder at the time
of Completion; or
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(b) from time to time issued to the PCCW
Shareholder after Completion;
except Shares that the PCCW Shareholder has
transferred as provided in clause 9.5(a).
PCCW Trust Interest means the trustees,
acting in their capacity as trustees,
of a trust of which PCCW and/or an
Associated Company of PCCW:
(a) is a beneficiary, or
(b) in the case of a discretionary trust, is
a discretionary object.
PCCW's international assets are the economic
entities, businesses and assets that under
the Establishment Agreements will be
transferred on Completion from the PCCW
Group to the Company Group. To avoid doubt a
reference to PCCW's international assets
includes businesses and assets that are at
the time of Completion businesses and assets
of an economic entity that on Completion
becomes a PCCW Entity.
Process Agent means:
(a) for the Telstra Parties: Telstra Europe
Limited, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
(b) for the PCCW Parties: Simmlaw Services
Limited, c/o Simmons & ▇▇▇▇▇▇▇,
CityPoint, One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇;
(c) for the Company: Reach Europe Limited,
▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
Reach Debt and Asset Restructure Deed means
the deed entitled "Reach Debt and Asset
Restructure Deed" between, amongst others,
the Founders and Reach.
Reach Network Services Agreement means the
agreement entitled "Reach Network Services
Agreement" between certain members of the
Founder Groups and Company Group.
Representative of a person includes an
employee, agent, officer, director, auditor,
legal, accounting, tax or financial adviser
or other consultant of that person.
securities has the same meaning as in the
Securities and Futures Ordinance, Chapter 571
of the Laws of Hong Kong and includes Shares;
and "security" shall be construed
accordingly.
Security Interest, over a security or other
asset means, a mortgage, assignment, charge,
trust, pledge, lien, hypothecation, power,
title retention arrangement, or other
encumbrance or third party right over or in
respect of:
11
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(i) the security or asset,
(ii) a legal or equitable interest in the
security or asset, or
(iii) a right attaching to the security or
asset.
Share means an ordinary voting share in the
capital of the Company and Shareholding means
a holding of Shares.
Shareholder means a person that holds the
legal interest in a Share.
Tax means taxes (direct and indirect),
levies, imposts, deductions, charges,
withholdings and duties, together with any
related interest, penalties, fines and other
statutory charges whether accruing before or
after Completion.
Telecommunications Traffic is communications
of all descriptions including voice, data and
signals of all kinds and whether carried by
means of switched or unswitched telephony,
data transmission (including ATM or frame
relay), leased or dedicated lines, circuits
or satellite slots, over the Internet, or by
other means of transmission.
Telstra Entity means Telstra or a subsidiary
of Telstra.
Telstra Group means Telstra, and its
subsidiaries and a reference to the Telstra
Group includes a reference to any one or more
of Telstra and its subsidiaries but does not
include a reference to the Company or any of
its subsidiaries.
Telstra Parties means Telstra, Telstra
Holding and the Telstra Shareholder.
Telstra Shareholder Security means an issued
share in the capital, or other security, of
the Telstra Shareholder.
Telstra Shares means all Shares:
(a) held by the Telstra Shareholder at the
time of Completion; or
(b) from time to time issued to the Telstra
Shareholder after Completion,
except Shares that the Telstra Shareholder
has transferred as provided in clause 9.6(a)
or replacement clause 9.6(a).
Telstra Trust Interest means the trustees
acting in their capacity as trustees, of a
trust of which Telstra and/or an Associated
Company of Telstra:
(a) is a beneficiary, or
(b) in the case of a discretionary trust, is
a discretionary object.
12
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Telstra's international assets are the
economic entities, businesses and assets that
under the Establishment Agreements will be
transferred on Completion from the Telstra
Group to the Company Group. To avoid doubt a
reference to Telstra's international assets
includes businesses and assets that at the
time of Completion are businesses and assets
of an economic entity that on Completion
becomes a Telstra Entity.
Trust Interest of ▇▇ ▇▇ means the trustees,
acting in their capacity as trustees, of a
trust of which ▇▇ ▇▇ or an Associated Company
of ▇▇ ▇▇:
(a) is a beneficiary, or
(b) in the case of a discretionary trust, is
a discretionary object and in relation to
which ▇▇ ▇▇ and/or an Associated Company
of ▇▇ ▇▇ is involved in the management.
References to certain general terms
1.2 Unless the contrary intention appears, in
this agreement:
(a) a reference to a document (including this
agreement) includes any variation or
replacement of it;
(b) a reference to a clause, annexure or
schedule is a reference to a clause in or
annexure or schedule to this agreement;
(c) except in relation to the Corporations
Law and the Companies Ordinance a
reference to a statute, ordinance, code
or other law includes regulations and
other instruments under it and
consolidations, amendments, re-enactments
or replacements of any of them;
(d) the singular includes the plural and vice
versa;
(e) a reference to a "person" includes a
reference to an individual, a firm, a
body corporate, a partnership, joint
venture, an unincorporated body or
association, or any Government Agency;
(f) a reference to a particular person
includes a reference to the person's
executors, administrators, successors,
substitutes (including persons taking by
novation) and assigns;
(g) a reference to a
(i) subsidiary; or
(ii) holding company; or
(iii) a wholly owned subsidiary; or
(iv) ultimate holding company.
13
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of a body corporate, is to be construed
in accordance with the Corporations
Law.
(h) a reference to a "related entity" of a
body corporate is a reference to:
(i) a subsidiary of the body corporate;
(ii) a holding company of the body
corporate; or
(iii) another body corporate that is a
subsidiary of a holding company of
the body corporate,
other than the Company or a subsidiary of
the Company.
(i) a reference to a "related person" of a
Shareholder is a reference to a director,
officer, employee or other representative
of the Shareholder or of a related entity
of the Shareholder,
(j) an agreement, undertaking, warranty or
indemnity in favour of two or more
persons is for the benefit of them
jointly and each of them individually;
(k) an agreement, undertaking or warranty by
two or more persons binds them jointly
and each of them individually;
(l) a reference to a "share" or a "debenture"
is to be construed in accordance with the
Companies Ordinance;
(m) if a period of time dates from a given
day or the day of an act or event, it is
to be calculated exclusive of that day;
(n) a reference to a day is to be interpreted
as the period of time commencing at
midnight and ending 24 hours later;
(o) the words "include", "including", "for
example" or "such as" are not used as,
nor are they to be interpreted as, words
of limitation, and, when introducing an
example, do not limit the meaning of the
words to which the example relates to
that example or examples of a similar
kind;
(p) if an act under this agreement to be done
by a party (including the Company) on or
by a given day is done after 5.30pm on
that day, it is taken to be done on the
next day;
(q) if an event under this agreement must
occur on a stipulated day which is not a
Business Day then the stipulated day will
be taken to be the next Business Day;
(r) a reference to a month is to a calendar
month;
(s) all currency references are to lawful
currency of the United States of America;
14
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(t) a reference to the transfer of a Share is
a reference to the transfer of the Share
free of any Security Interest;
(u) to avoid doubt, a subsidiary
(i) of PCCW is a controlled corporation
of PCCW;
(ii) of Telstra is a controlled
corporation of Telstra; and
(iii) of the Company is a controlled
corporation of the Company.
Headings
1.3 Headings are for convenience only and do
not affect the interpretation of this
agreement.
Company/Telstra Holding as a Party
1.4 A reference to a "Party" or the "Parties"
includes a reference to the Company only in
and for the purposes of clauses 10, 10.A,
10.B, 14, 15 and 21 through 29.
1.5 A reference to a "Party" or the "Parties"
includes a reference to Telstra Holding for
the purposes of clauses 21 through 29.
2 Commencement and Completion
--------------------------------------------------------------------------------
Effect
2.1 This agreement takes effect and is
operative upon and from the Commencement
Date.
3 [Intentionally blank]
--------------------------------------------------------------------------------
4 Business of the Company Group
--------------------------------------------------------------------------------
4.1 [Intentionally blank]
Scope of the business of the Company
4.2 It is recognised that, prior to 1 March
2005, the Company Group was a supplier of
Connectivity Services to third parties such
as telecommunications carriers and service
providers, and Internet service providers.
4.3 Effective from 1 March 2005, the Business
was transformed to be one under which, for
the most part, the Company Group provides
services to the PCCW Group and the Telstra
Group pursuant to the 2005 Agreements. The
scope and activities of the Business are to
be within and in accordance with the
following description, business objectives
and parameters:
15
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(a) The principal objective of the Business
will be for the Company Group to be a
provider of data services to the PCCW
Group and the Telstra Group and voice,
satellite and data centre services to
third parties and the PCCW Group and the
Telstra Group.
(b) The Business will be operated as a global
business with its headquarters in Hong
Kong and a set of worldwide points of
presence.
(c) The Connectivity Services supplied by the
Business will provide Connectivity
through both terrestrial and
non-terrestrial delivery platforms.
(d) The focus of the Business and its
development in relation to Connectivity
Infrastructure will be on the
construction, ownership, management and
operation of Cross Border Connectivity
Infrastructure.
(e) Outside Australia and Hong Kong the
Connectivity Services supplied by the
Business will be predominantly city to
city services that provide Connectivity
between markets and networks rather than
simply between international gateways in
different countries.
(f) The commercial relationships between on
the one hand the Company Group and
Business and on the other hand:
(i) Telstra Entities and their
domestic wholesale and
retail operations in
markets in Australia; and
(ii) PCCW Entities and their
domestic wholesale and
retail operations in
markets in Hong Kong,
will be the subject of the
Establishment Agreements and the
2005 Agreements.
(g) The Business will be built on the base of
the relevant staff from both Telstra
Group and PCCW Group. Generally staff
entering the Company Groups service will
sever their ties with PCCW Group and
Telstra Group, with the exception of
staff with specific skills who may be
seconded from Telstra Group and PCCW
Group while permanent resources are being
found. Staff in headquarters functions
may be spread across various sites where
the Business is operated worldwide, to
ensure a balanced cultural and expertise
mix, but with the majority being located
in Hong Kong and Australia initially.
Management incentives will be flexibly
structured to reflect the priorities and
strategic direction set by the Board from
time to time, with particular emphasis on
enhancement of shareholder value.
16
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Definitions used in this clause 4
4.4 Certain capitalised terms used in this
clause 4 are defined in clause 10.15.
5 Board of Directors and management
--------------------------------------------------------------------------------
Scope
5.1 This clause 5 has effect from the
Commencement Date and is subject to clause
13.
Appointment of Directors
5.2 Each Founder Shareholder is entitled to
appoint Directors in accordance with this
clause 5, to remove any Director appointed by
it, and (subject to clauses 5.6 and 5.7) to
replace a Director appointed by it who dies,
resigns or is removed from or otherwise
vacates office.
5.3 Each appointment, removal or replacement
of a Director by a Founder Shareholder must
be made by notice to the Company and each of
the other Shareholders.
First Board
5.4 The Board will consist of the number of
Directors that the Founder Shareholders
between them are entitled to appoint pursuant
to this clause 5. The Board may act
notwithstanding any vacancy in its numbers.
5.5 Subject to clause 5.6, the Board will be
comprised as follows:
(a) 2 Directors appointed by the Telstra
Shareholder; and
(b) 2 Directors appointed by the PCCW
Shareholder.
Subsequent Boards
5.6 The number of Directors that each Founder
Shareholder may appoint will be determined in
accordance with the following table:
------------------------------------------------
Percentage of total Number of Directors the
issued Shares held by Founder Shareholder is
the Founder Shareholder entitled to appoint
Less than 15% 0
15% to less than 25% 2
25% to less than 35% 3
35% or more 4
------------------------------------------------
17
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5.7 If the number of Directors in office
appointed by a Founder Shareholder becomes
greater than the number that the Founder
Shareholder is entitled to appoint pursuant
to clause 5.6, the Founder Shareholder must
immediately remove as many of those Directors
as required to reduce their number to the
number that the Founder Shareholder is
entitled to appoint pursuant to clause 5.6.
Chairman
5.8 The Chairman:
(a) must be a Director,
(b) will be entitled to preside as Chairman
at meetings of the Board and of members
of the Company, and
(c) will not be entitled to a second or
casting vote at any meeting of the Board
or of members of the Company
Appointment of Chairman
5.9 Subject to clauses 5.11, 5.12 and 5.12A,
(a) from Completion the Chairman will be
appointed by the 35% Shareholders
alternately during successive periods of
2 years, and
(b) the Chairman for the first 2 years from
Completion will be appointed by the
Telstra Shareholder.
5.10 A 35% Shareholder has the right, after
consultation with the other Founder
Shareholder ("appointing Shareholder") to
remove a Chairman appointed by the appointing
Shareholder. If this occurs the appointing
Shareholder, if it is a 35% Shareholder, will
appoint another Chairman for the remainder of
the applicable period of 2 years.
5.11 If either Founding Shareholder ceases to
be a 35% Shareholder, the other Founder
Shareholder if it is a 35% Shareholder, will
be entitled to appoint the Chairman.
5.12 If neither of the Founding Shareholders
is a 35% Shareholder, the Chairman will be
appointed by the Board.
5.12A The term of office of a Chairman appointed by
a 35% Shareholder will terminate when that
Shareholder ceases to be entitled to appoint
the Chairman.
Deputy Chairman
5.13 The Deputy Chairman
(a) must be a Director,
(b) in the absence of the Chairman will be
entitled to preside as Chairman at
meetings of the Board and of members of
the Company, and
18
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(c) will not be entitled to a second or
casting vote at any meeting of the Board
or of members of the Company.
Appointment of Deputy Chairman
5.14 Subject to clauses 5.16 and 5.17, from
Completion, the 35% Shareholder that is not
the one by which the Chairman is to be
appointed will appoint the Deputy Chairman.
5.15 A 35% Shareholder has the right, after
consultation with the other Founding
Shareholder ("appointing Shareholder") to
remove a Deputy Chairman appointed by the
appointing Shareholder. If this occurs the
appointing Shareholder, if it is a 35%
Shareholder, will appoint another Deputy
Chairman.
5.16 If either Founding Shareholder ceases to
be a 35% Shareholder, the Deputy Chairman
will be appointed and removed by the Board.
5.17 The term of office of a Deputy Chairman
appointed by a 35% Shareholder will terminate
when that Shareholder ceases to be entitled
to appoint the Deputy Chairman.
5.17A In clauses 5.9 to 5.17:
(a) a reference to appointment of the
Chairman includes a reference to removal
or replacement of the Chairman; and
(b) a reference to appointment of the Deputy
Chairman includes a reference to removal
or replacement of the Deputy Chairman.
Alternate Director
5.18 A Director may appoint an alternate
director as provided in the Constitution
("alternate").
Quorum
5.19 Subject to clauses 5.20 and 12.4 the
quorum for a meeting of the Board will be
attendance of four Directors including at any
time when there is a 35% Shareholder at least
one Director appointed by each 35%
Shareholder.
5.20 At a meeting that has been postponed in
accordance with the Constitution on one
previous occasion for lack of a quorum the
attendance of any two Directors will be a
quorum.
Voting - General
5.21 Decisions of the Board are to be made by
a simple majority of votes.
5.22 Subject to clauses 5.23, 5.24 and 12.1
each Director will have one vote.
5.23 At any meeting of the Board at which any
Director appointed by a Shareholder is not in
attendance, if another Director appointed by
the Shareholder is in attendance that other
Director or if two or more other Directors
are appointed by the Shareholder are in
attendance those
19
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other Directors collectively, may exercise
the vote of the absent Director.
5.24 At any meeting of the Board held at a
time when there is a vacancy on the Board
that a Shareholder is entitled to appoint a
Director to fill, if a Director appointed by
the Shareholder is in attendance that
Director, or if two or more Directors
appointed by the Shareholder are in
attendance those Directors collectively, may
exercise the vote that a Director appointed
by the Shareholder to fill the vacancy would
be able to exercise.
Meetings - general
5.25 Unless and except as otherwise agreed
between the Founder Shareholders a meeting of
the Board may be called by any Director by
not less than 7 Business Days written notice
and whenever a meeting is postponed for lack
of a quorum the date to which it is postponed
must be at least 5 Business Days later
provided that the period of notice or
postponement may be abridged or waived with
the consent of at least one Director
appointed by each Shareholder that has
appointed one or more Directors.
5.26 Subject to clause 5.27 meetings of the
Board will be convened and held at such times
as may be determined by the Board, and in any
event not less than quarterly, in Hong Kong
or such other places as the Board from time
to time determines.
5.27 Board meetings may be held by telephone
or audio visual means provided each
participant can hear the other participants.
5.28 A resolution of the Board may be passed
by identical circular resolutions signed by
all Directors.
5.29 A resolution cannot be voted upon at a
Board meeting unless the general subject
matter of the resolution is set out in the
agenda sent with the notice of meeting, or
all Directors in attendance at the meeting
including at least one Director appointed by
each 35% Shareholder agree to the resolution
being considered and voted on at the meeting.
5.30 For the purpose of applying the
foregoing provisions of this clause:
(a) a reference to the attendance of a
Director at a meeting is a reference to
the Director being present or
participating by telephone or audiovisual
means in accordance with clause 5.27 in
person or by alternate; and
(b) any act that may be performed by a
Director may be performed in the
Director's absence by the Director's
alternate or representative.
Voting at Board meetings - special requirements
5.31 An act, matter or decision of any of the
following kinds may not be undertaken or made
except by or in accordance with a resolution
of the
20
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Board made by a majority of votes that
includes the affirmative vote of at least one
Director appointed by each 35% Shareholder:
(a) a material change to the Agreed Scope of
the Business (including any extension of
the Business beyond, or the Company Group
otherwise commencing or engaging in any
business or activities outside or not in
accordance with the scope and activities
of the Business set out in clause 4);
(b) a decision to approve a proposed Business
Plan;
(c) a decision materially revising an
Approved Business Plan including by
incorporating into the Approved Business
Plan any new or increased investment,
operating expenditure, capital raising or
borrowing during a Financial Year that
exceeds 20% of the annual amount for that
category for that Financial Year budgeted
in the Approved Business Plan;
(d) unless clause 12.1 applies the Company
Group entering into, extending, renewing,
terminating or materially amending an
agreement (other than the entry into of
an agreement entered into pursuant to and
in accordance with clause 10.10) with a
Shareholder, a Founder or a controlled
corporation of a Founder or a controlled
corporation of ▇▇ ▇▇ , where the amount
to be expended or received by the Company
Group under the agreement exceeds 2% of
the consolidated operating revenue of the
Company Group in the current Financial
Year as projected in the Approved
Business Plan;
(e) the Company Group incurring aggregate
indebtedness which is in excess of US$50
million other than in accordance with the
Approved Business Plan;
(f) the Company Group acquiring or disposing
of:
(i) a business or asset; or
(ii) through one transaction or a series
of similar transactions or two or
more transactions that are related,
businesses and assets in aggregate
having a book value exceeding 5% of
the book value of the consolidated
net assets of the Company Group;
(g) the Company Group incurring indebtedness
to a Shareholder, a Founder or a
controlled corporation of a Founder, or a
controlled corporation of ▇▇ ▇▇ other
than in accordance with the Approved
Business Plan;
(h) the Company Group acquiring or disposing
of securities of or any other economic
interest in the Company Group after
Completion except where the acquisition
or disposal is in accordance with the
Approved Business Plan;
21
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(i) the creation, offering or issue of Shares
or other securities of the Company Group
after Completion otherwise than in
accordance with the Approved Business
Plan;
(j) the listing of securities of the Company
on any stock exchange.
(k) in any month the Company Group incurring
capital expenditure other than Agreed
Uncommitted Capex or Committed Capex in
excess of $10,000 except to the extent
set out in an Approved Business Plan;
(l) in any month the Company Group incurring
expenses in connection with product
development in excess of $5,000 except to
the extent set out in an Approved
Business Plan; and
(m) a decision to approve a disaster recovery
plan in respect of the telecommunications
network operated by the Company Group.
Shareholder consents
5.32 Despite any contrary provision of this
agreement, an act, matter or decision of any
of the following kinds may not be undertaken
or made except with the prior consent of each
35% Shareholder:
(a) the Company Group conferring upon any
lender or prospective lender as a
condition or term of a loan or advance a
right to participate in the share capital
of the Company Group or any business of
the Company Group;
(b) reduction or return of capital of the
Company;
(c) a decision to put the Company Group into
voluntary liquidation;
(d) a change to the Constitution;
(e) merger or amalgamation of the Company
Group with any other person (except that
the consent of a 35% Shareholder will not
be required pursuant to this clause where
the 35% Shareholder or its related entity
has directly or indirectly in excess of a
5% economic interest in the person with
whom the Company Group proposes to merge
or amalgamate or a related entity of that
person);
(f) a call for the provision by the
Shareholders of additional equity capital
other than as specified in the Approved
Business Plan;
(g) the offering or issue of new Shares to a
person other than a Shareholder.
Disputes
5.33 The agenda for all meetings of the Board
shall include a discussion of all
disputes between: (A) the Company Group
and any member of a Founder Group and (B)
the Company Group and any other party
where
22
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the amount in dispute is in excess
of US$10,000 (or where such amount is
unquantifiable).
5AA Boards of subsidiaries
--------------------------------------------------------------------------------
Boards of subsidiaries
5AA.1 Subject to clause 13, from Completion,
the following provisions will apply and
will be given effect with respect to
each subsidiary of the Company unless
and except as otherwise mutually agreed
between the Founders before Completion,
or determined by the Board after
Completion:
(a) each Founder Shareholder will be entitled
to appoint to the board of directors of
the subsidiary (and replace) a number of
directors equal to the number of
Directors that it is entitled to appoint;
and
(b) the board of directors of the subsidiary
will consist of the number of directors
that collectively the Founders are
entitled to appoint; and
(c) the provisions of clauses 5.7 to 5.30
will apply mutatis mutandis.
5A Deadlock Procedures
--------------------------------------------------------------------------------
Vetoed resolutions
5A.1 Where:
(a) a resolution relating to the undertaking
or making of an act, matter or decision
of any of the kinds specified in clause
5.31 is proposed and considered by the
Board at a meeting of the Board; and
(b) all Directors except Directors appointed
by one 35% Shareholder ("dissenting 35%
Shareholder") vote in favour of the
resolution; and
(c) the proposed resolution is not made for
the reason that it requires and does not
receive the vote of at least one Director
appointed by a dissenting 35% Shareholder
the other Founder Shareholder may give to
the dissenting 35% Shareholder a notice
calling for the deadlock procedures set out
in clause 5A.3 to be applied in relation to
the subject matter of the proposed
resolution.
5A.2 Where:
(a) the undertaking or making of an act,
matter or decision of any of the kinds
specified in clause 5.32 is proposed; and
23
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(b) the undertaking or making of the proposed
act, matter or decision is not consented
to by a 35% Shareholder that is not a
defaulting Shareholder pursuant to clause
13 ("dissenting 35% Shareholder"),
the other Founder Shareholder may give to
the dissenting 35% Shareholder a notice
calling for the deadlock procedures set out
in clause 5A.3 to be applied in relation to
the subject matter of the proposal.
5A.3 From the time a notice pursuant to clause
5A.1 or 5A.2 is given, the following
dispute resolution procedures apply in
relation to the subject matter of the
proposed resolution ("Deadlock Subject
Matter"):
(a) within 5 Business Days, the chief
executive officers of the Founders (or
their respective nominees of appropriate
seniority) must, within 5 Business Days
of the expiry of that period, meet to
discuss the Deadlock Subject Matter and
endeavour in good faith to resolve the
Deadlock Subject Matter within 20
Business Days following their first
meeting;
(b) if the Deadlock Subject Matter is not
resolved within the 20 Business Days
referred to in paragraph (a) either
Founder may give a notice ("mediation
notice") to the other Founders referring
the Deadlock Subject Matter to mediation
in accordance with this clause 5A.3. Once
received, a mediation notice requires the
Founders to follow the mediation process
set out in paragraphs (c) to (f).
(c) The Founders must, within 5 Business Days
after a mediation notice is given,
jointly appoint a mediator from:
(i) if the meditation notice is given by
PCCW, the panel of mediators kept by
the Australian Commercial Disputes
Centre Limited; or
(ii) if the mediation notice is given by
Telstra, from the panel of mediators
kept by the Hong Kong International
Arbitration Centre;
(each a "Mediation Centre").
(d) If the Founders do not agree on a
mediator within 3 Business Days after the
expiry of the 5 Business Days referred to
in paragraph (c), then either Founder may
ask the applicable Mediation Centre to
appoint a mediator and determine the
mediator's remuneration. The appointment
of the applicable Mediation Centre will
be binding on the Founders.
24
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(e) If the Founders do not agree within 5
Business Days after the mediator is
appointed pursuant to paragraphs (c) or
(d), as to:
(i) the mediation procedures to be
adopted; and
(ii) the timetable for all steps in those
procedures,
the Mediation will be conducted in
accordance with the mediation
rules of the applicable Mediation
Centre.
(f) The mediation must take place in:
(i) if the mediation notice is given by
Telstra, Hong Kong; or
(ii) if the mediation notice is given by
PCCW, Sydney.
(g) The costs of mediation must be shared
equally by each Founder.
5A.4 To avoid doubt, a mediator appointed
pursuant to clause 5A.3 will act as a
mediator, not an arbitrator or expert, and
will have no power to make a decision that is
binding.
6 Responsibilities of the Board
--------------------------------------------------------------------------------
Business and affairs of the Company
6.1 Subject to this agreement, the Board is
to be responsible for directing and
supervising the management of the Company
Group including:
(a) determining the general corporate and
business policies of the Company Group;
(b) determining the strategic priorities and
objectives of the Company Group;
(c) determining the financial objectives and
accounting policies of the Company Group;
(d) determining the external communications
policies of the Company Group;
(e) determining matters of a major or unusual
nature which are not in the ordinary
course of business of the Company Group;
(f) reviewing, requiring revisions to and
adopting proposed Business Plans and
reviewing, revising the Approved Business
Plan and considering at least annually
the actual and projected cash position of
the Company and deciding how it may be
applied;
25
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(g) monitoring and reviewing the performance
and financial results of the operations
of the Company Group throughout and after
the end of each Financial Year;
(h) appointing, removing and determining the
remuneration and terms and conditions of
engagement of the CEO, CFO and COO;
(i) determining the management authorisations
and responsibilities of the CEO and other
executives of the Company Group including
in relation to the incurring of
expenditure and liabilities on behalf of
the Company Group;
(j) appointing directors of subsidiaries of
the Company and supervising and
establishing policies in relation to the
appointment, remuneration and performance
of senior executives and the conduct and
management of the businesses and affairs
of the Company Group; and
(k) determining the dividend policy of the
Company and declaring the payment of
dividends by the Company.
6.2 Each Party agrees to take all reasonable
steps within its power to procure that:
(a) the operations of the Company are
undertaken, developed and conducted in
conformity with this agreement and the
Establishment Agreements and the Approved
Business Plan; and
(b) there is a quorum at each duly convened
meeting of the Board.
6.3 Subject to clause 6.2, to the extent
permitted by law:
(a) a Director appointed by a Shareholder
(when exercising powers, performing
duties or otherwise acting in the
capacity of a Director); and
(b) a related person of a Shareholder holding
office as a director of a subsidiary of
the Company (when exercising powers,
performing duties or otherwise acting in
that capacity)
may represent and act in accordance with the
directions and requirements of the
Shareholder and consider and vote in the
interests of the Shareholder to the exclusion
of the interests of the Company Group.
6.4 The Founder Shareholders ratify and
approve the execution by the Company of those
Establishment Agreements executed on or prior
to the date of this agreement to which the
Company is a party.
26
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7 Management and operations
--------------------------------------------------------------------------------
Appointment of the CEO
7.1 The CEO will be appointed by the Board.
7.2 The CEO is to be responsible to the Board
for the management of the Company Group and
for coordinating and supervising the day to
day businesses operations and affairs of the
Company Group.
7.3 The CEO is to be empowered to incur and
authorise the incurring of expenditure and
liabilities on behalf of the Company Group
within the limits established by the Board.
7.4 The Board must require the CEO to
implement the Approved Business Plan and
endeavour to ensure that the businesses
operations and affairs of the Company Group
are managed and conducted so as to achieve
timely fulfilment of the business objectives
set out in and otherwise in all material
respects consistently with the Approved
Business Plan.
Senior executives and employees
7.5 The CFO and COO will be appointed by the
Board unless otherwise determined by the
Board.
7.6 The CFO is to be responsible to the CEO
and the Board for the implementation and
coordination of the fiscal and accounting
policies and financial administration of the
Company Group.
7.7 The COO is to be responsible to the CEO
and Board for the day to day implementation
of the operating policies and business
operations administration of the Company
Group.
7.8 [Intentionally blank]
Employee terms and conditions
7.9 The Board will determine and cause to be
implemented
(a) suitable terms and conditions for
employment of personnel of the Company
Group, and
(b) when appropriate an employees share
option/equity plan aimed at incenting
management behaviour towards achieving
the focus and objectives for the Business
set out in clause 4.
Business Plans
7.10 [Intentionally blank]
7.11 [Intentionally blank]
7.12 [Intentionally blank]
7.13 The Board must procure that:
(a)
27
--------------------------------------------------------------------------------
(i) the CEO prepares and submits to the
Board a proposed Business Plan for
the next Financial Year and the two
following Financial Years; and
(ii) the proposed Business Plan is
reviewed and revised in accordance
with the Board's requirements and is
then adopted by the Board on or
prior to 30 November in the year
preceding the first Financial Year
to which such plan relates;
(b) if for any reason a Business Plan for a
Financial Year and the two following
Financial Years ("requisite Plan") is not
adopted by the Board on or prior to 30
November in the year preceding the first
Financial Year to which such plan
relates, as provided in paragraph (a),
the requisite Plan is adopted by the
Board as soon as practicable thereafter
and in any event prior to the
commencement of the relevant Financial
Year;
(c) the CEO prepares and submits to the
Board:
(i) monthly management accounts and
reports relating to the Company
Group in the form and manner
required by the Board; and
(ii) promptly after the end of each
quarter in each Financial Year:
(A) reports detailing the
performance of the Company
Group for the quarter and for
the Financial Year to the end
of the quarter, compared with
the Approved Business Plan; and
(B) forecasts detailing the
projected quarterly performance
of the Company Group for the
remainder of the Financial
Year, compared with the
Approved Business Plan.
7.14 Each Approved Business Plan must incorporate:
(a) suitably detailed descriptions of the
current and planned activities and
objectives of the Company Group and
including:
(i) a detailed description of the
objectives and strategies of the
Business for each of the Financial
Years covered by the Approved
Business Plan,
(ii) a detailed description of the
operations which will be conducted
and the services it will offer in
each of those Financial Years,
28
--------------------------------------------------------------------------------
(iii) a detailed marketing plan including
pricing policies for at least the
first Financial Year covered by the
Approved Business Plan, and
(iv) a suitably detailed description of
the human resources policy for the
first 2 Financial Years covered by
the Approved Business Plan,
including the forecast numbers of
full time employees and part time
employees, and the number and the
proposed secondees from Telstra
Group and PCCW Group;
(b) a Budget for the first Financial Year
covered by the Approved Business Plan;
(c) forecasts in as much detail as
practicable for:
(i) capital expenditure;
(ii) operating expenditure;
(iii) other expenditure of any kind that
may be planned or required to be
provided for; and
(iv) cashflows
for each of the next two Financial
Years;
(d) a funding plan in as much detail as
practicable:
(i) setting out for each of the three
years covered by the Approved
Business Plan, the amount, timing
and kind of funding or credit
support required and proposed to be
procured to meet all expenditure
budgeted or forecast or otherwise
contemplated in the Approved
Business Plan; and
(ii) specifying any additional equity
capital that is to be contributed by
Shareholders in the first Financial
Year covered by the Approved
Business Plan including the amount
and timing of each contribution.
7.15 Unless otherwise determined by the Board, the
business objectives, projected activities and
funding proposals for the Company Group
(a) which are incorporated in each Business
Plan adopted by the Board pursuant to
this clause 7 must reflect and give
effect to the description of, and
business objectives and parameters for,
the Business which are outlined in clause
4, and
(b) [Intentionally blank]
(c) which are incorporated in each Business
Plan adopted by the Board pursuant to
clause 7.13, so far as they relate to the
first two Financial Years covered by the
Business Plan must also be
29
--------------------------------------------------------------------------------
substantially consistent with those that
immediately before the adoption of the
Business Plan are incorporated in the
Approved Business Plan.
Shareholders to procure performance
7.16 Without limiting the generality of clause 11,
each Shareholder agrees to take individually
and collectively with the other Shareholders,
all reasonable steps within its power to
procure that all of the requirements and
provisions of clauses 7.1 to 7.15 are duly
and fully performed, implemented and
observed.
8 Capital and Funding
--------------------------------------------------------------------------------
Gearing
8.1 [Deleted: Variation Agreement No.5]
8.2 [Deleted: Variation Agreement No.5]
8.3 [Deleted: Variation Agreement No.5]
8.3A [Deleted: Variation Agreement No.5]
8.3B [Deleted: Variation Agreement No.5]
8.3C [Deleted: Variation Agreement No.5]
Initial Capital
8.3D [Intentionally blank]
8.3E [Intentionally blank]
8.3F [Intentionally blank]
8.3G [Intentionally blank]
8.4 [Intentionally blank]
Dividend policy
8.5 [Intentionally blank]
Funding of Business Plans
8.6 The Company Group will arrange bank
facilities and other borrowings for working
capital, capital expenditure, acquisitions
and other funding requirements in the manner
and on the terms the Board approves and
authorises and nothing in this clause 8 will
restrict the freedom of the Company Group to
borrow funds from a financial institution, a
Shareholder, a Founder, a controlled
corporation of a Founder or other lender in
such manner and on such terms and conditions
as the Board may determine or authorise.
8.7 Except as expressly provided in this
agreement or an Establishment Agreement, no
Shareholder, Founder or subsidiary of a
Founder is obliged to provide any financial
accommodation to the Company
30
--------------------------------------------------------------------------------
Group or to guarantee or secure any
obligations of the Company Group.
8.8 From the Commencement Date Shareholders will
fund the Company by providing additional
equity capital:
(a) as specified in the Approved Business
Plan; and
(b) otherwise, if and to the extent that
calls for the provision of additional
equity have been authorised or approved
in accordance with clause 5.32(f),
and the provisions of clauses 8.9 to 8.12
will apply.
8.9 If, pursuant to clause 8.8, additional equity
capital is required to be provided then the
Board must give notice ("subscription
notice") to each Shareholder specifying:
(a) the total number of additional Shares
that are to be issued ("specified
number") and the amount per Share
(including any premium) that is to be
subscribed ("issue price");
(b) in respect of each Shareholder:
(i) the number of additional Shares
allocated for subscription by the
Shareholder ("allocated number")
being the number that bears to the
specified number the same proportion
as the Shareholder's existing
Shareholding bears to the total
number of issued Shares; and
(ii) the amount of additional capital
required to be provided by the
Shareholder ("required amount")
being the product of the allocated
number multiplied by the issue
price; and
(c) the date for payment by each Shareholder
of its required amount ("due date").
8.10 If each Shareholder provides to the Company
in cleared funds the whole of its required
amount of additional capital on or before the
due date then each Shareholder will be issued
its allocated number of additional Shares as
fully paid up Shares.
8.11 If any Shareholder ("declining Shareholder")
does not provide the whole of its required
amount to the Company in cleared funds on or
before the due date:
(a) the Board must promptly appoint a valuer
to determine the fair market price per
Share;
(b) the valuer is to complete the valuation
process within 30 days from appointment
and provide the valuation and supporting
reasons to the Company and each of the
Shareholders;
31
--------------------------------------------------------------------------------
(c) the price per Share determined by the
valuer will constitute the fair market
price unless within 14 days a declining
Shareholder requires a second valuer to
be appointed by the Board;
(d) if a second valuer is appointed the fair
market price will be the mean of the
price per Share determined by the first
valuer and the price per Share determined
by the second valuer;
(e) the declining Shareholder will be taken
to have subscribed for the number of
additional shares obtained by dividing
the fair market price into the amount of
additional capital (if any) that it has
provided;
(f) each Shareholder that has provided its
required amount of additional capital
("accepting Shareholder") will be taken
to have subscribed for the number of
additional Shares obtained by dividing
that required amount by the fair market
price and will be issued that number of
Shares as fully paid up Shares;
(g) each accepting Shareholder will also have
the right to apply for a further number
of additional Shares ("further number")
determined in accordance with the
following formula:
(R-S) 10
----- X -- = F
P 9
where
"R" is the required amount of
additional capital specified
for the declining Shareholder,
"S" is the amount of additional
capital (if any) that the
declining Shareholder has provided,
"P" is the fair market price, and
"F" is the further number
and at a discounted price per Share equal
to 90% of the fair market price
("discounted price"); and
(h) subject to clause 8.11(i), an accepting
Shareholder upon:
(i) applying; and
(ii) paying to the Company in cleared
funds, the subscription price,
calculated at the discounted price,
for the further number of
additional Shares pursuant to
paragraph (g), will be issued that
number of Shares as fully paid up
Shares; and
32
--------------------------------------------------------------------------------
(i) if two or more accepting Shareholders
apply pursuant to paragraph (g) for the
further number of additional Shares:
(i) the further number will be allocated
between those Shareholders
proportionately to their respective
existing Shareholdings; and
(ii) each of those Shareholders upon
paying to the Company in cleared
funds the subscription price,
calculated at the discounted price,
for the number of Shares so
allocated to it, will be issued that
number of Shares as fully paid up
Shares.
8.12 Without derogating from clause 8.11, if a
Shareholder is required to contribute a
required amount of additional equity capital
as provided in clauses 8.8, 8.9 and 8.10 and
does not do so, the Shareholder will not for
that reason be taken to be in breach of this
agreement.
9 Restrictions on disposal of Shares etc.
--------------------------------------------------------------------------------
Scope
9.1 This clause 9 has effect from Completion.
9.1A To avoid doubt, the Parties acknowledge and
agree that nothing in this clause restricts,
prohibits or otherwise affects the exercise
by Telstra of any of its rights pursuant to
the Establishment Agreement entitled
Equitable Mortgage of Shares.
General prohibition for Telstra
9.2 The Telstra Parties must procure that at all
times after Completion:
(a) all Telstra Shares are held by the
Telstra Shareholder;
(b) all Embargoed Telstra Shareholder
Securities are held by Telstra Holding;
and
(c) Telstra Holding is a direct wholly owned
subsidiary of Telstra.
General prohibition for PCCW
9.3 The PCCW Parties must procure that at all
times after Completion:
(a) all PCCW Shares are held by the PCCW
Shareholder; and
(b) all Embargoed PCCW Shareholder Securities
are held by PCCW.
General prohibition for Shareholders
9.4 Subject to clauses 9.5 and 9.6 (and without
limiting clause 9.2 or 9.3) a Shareholder
must not:
(a) dispose of or agree or attempt to dispose
of Shares that it holds; or
33
--------------------------------------------------------------------------------
(b) create or allow to subsist or agree or
attempt to create or to allow to subsist
any Security Interest over Shares that it
holds.
Permitted transfers and Security Interests for PCCW Shares
9.5 The PCCW Shareholder may:
(a) transfer Shares pursuant to and in
accordance with:
(i) clause 9.15;
(ii) clause 9.16;
(iii) clauses 9.19(c), (d) and (e); and
(iv) clause 9.19(f); and
(b) pursuant to and in accordance with clause
9.7 or 9.16 create and allow to subsist a
Security Interest over Shares that it
holds.
Permitted transfers and Security Interests for Telstra Shares
9.6 The Telstra Shareholder may:
(a) transfer Shares pursuant to and in
accordance with:
(i) clause 9.15;
(ii) clause 9.16;
(iii) clauses 9.19(c), (d) and (e); and
(iv) clause 9.19(f); and
(b) pursuant to and in accordance with clause
9.7 or 9.16 create and allow to subsist a
Security Interest over Shares that it
holds.
Permitted Security Interests
9.7 A Founder Shareholder ("Borrowing
Shareholder") may create and allow to subsist
a Security Interest over Shares that it holds
if:
(a) the Security Interest secures
indebtedness created pursuant to an arms
length bona fide arrangement with a
financial institution that is not a
related entity of that Founder
Shareholder; and
(b) if the Borrowing Shareholder is the PCCW
Shareholder the indebtedness is
indebtedness of the PCCW Group; or
(c) if the Borrowing Shareholder is the
Telstra Shareholder the indebtedness
is indebtedness of the Telstra
Group.
General Prohibition for PCCW Shareholder Securities and Telstra Shareholder
Securities
9.8 Subject to clauses 9.9, 9.10, 9.10A, 9.10B,
9.11 and 9.13:
34
--------------------------------------------------------------------------------
(a) PCCW must not:
(i) dispose of or agree or attempt to
dispose of any PCCW Shareholder
Security; or
(ii) create or allow to subsist or agree
or attempt to create or allow to
subsist any Security Interest over a
PCCW Shareholder Security that it
holds; and
(b) Telstra Holding must not:
(i) dispose of or agree or attempt to
dispose of any Telstra Shareholder
Security; or
(ii) create or allow to subsist or agree
or attempt to create or allow to
subsist any Security Interest over a
Telstra Shareholder Security that it
holds.
Disposals and creation of Security Interests for PCCW and Telstra Shareholder
Securities with consent
9.9 With the prior written approval of Telstra,
PCCW may:
(a) dispose of PCCW Shareholder Securities;
or
(b) create a Security Interest over PCCW
Shareholder Securities that it holds and
allow that Security Interest to subsist;
if the disposal of the PCCW Shareholder
Securities or creation and subsistence of the
Security Interest in all respects conforms
with the terms of the approval and any
conditions or requirements to which the
approval is stated to be subject are fully
performed or observed.
9.10 With the prior written approval of PCCW,
Telstra Holding may:
(a) dispose of Telstra Shareholder
Securities; or
(b) create a Security Interest over Telstra
Shareholder Securities that it holds and
allow that Security Interest to subsist;
if the disposal of the Telstra Shareholder
Securities or creation and subsistence of the
Security Interest in all respects conforms
with the terms of the approval and any
conditions or requirements to which the
approval is stated to be subject are fully
performed or observed.
9.10A Telstra Holding may create and allow to
subsist a Security Interest over Telstra
Shareholder Securities if the Security
Interest secures indebtedness of the Telstra
Group created pursuant to an arms length bona
fide arrangement with a financial institution
that is not a related entity of Telstra
Holding.
9.10B PCCW may create and allow to subsist a
Security Interest over PCCW Shareholder
Securities if the Security Interest secures
indebtedness of the PCCW Group created
pursuant to an arms length bona fide
35
--------------------------------------------------------------------------------
arrangement with a financial institution that
is not a related entity of PCCW.
Permitted disposal of less than 30% of PCCW Shareholder Securities after 12
months
9.11 PCCW may transfer PCCW Shareholder
Securities that are ordinary shares
having full voting rights ("PCCW
Shareholder voting shares") if:
(a) the transfer is after the first
anniversary of the Completion Date;
(b) the transfer is not by way of or in
connection with a public offering;
(c) the transferee is a body corporate that
is not a related entity or controlled
corporation of PCCW or a controlled
corporation of ▇▇ ▇▇;
(d) the transferee does not hold and is not
entitled to any Shares or any Security
Interest over any Shares; and
(e) the number of PCCW Shareholder voting
shares transferred does not exceed the
PCCW permitted number.
9.12 For the purpose of applying clause
9.11(e) in relation to a transfer of PCCW
Shareholder Securities, the PCCW permitted
number will be the value of "N" in the
formula:
( 30 )
(----- x S) - T =N
( 100 )
where:
"S" is the total number of issued PCCW
Shareholder voting shares;
"T" is the aggregate number of PCCW
Shareholder voting shares (if any) that PCCW
has previously transferred pursuant to clause
9.11; and
"N" is the PCCW permitted number.
Permitted disposal of less than 30% of Telstra Shareholder Securities after 12
months
9.13 Telstra Holding may transfer Telstra
Shareholder Securities that are ordinary
shares having full voting rights ("Telstra
Shareholder voting shares") if:
(a) the transfer is after the first
anniversary of the Completion Date;
(b) the transfer is not by way of or in
connection with a public offering;
36
--------------------------------------------------------------------------------
(c) the transferee is a body corporate that
is not a related entity or controlled
corporation of Telstra;
(d) the transferee does not hold and is not
entitled to any Shares or any Security
Interest over any Shares; and
(e) the number of Telstra Shareholder voting
shares transferred does not exceed the
Telstra permitted number.
9.14 For the purpose of applying clause 9.13(e) in
relation to a transfer of Telstra Shareholder
Securities, the Telstra permitted number will
be the value of "N" in the formula:
( 30 )
(----- x S) - T =N
( 100 )
where:
"S" is the total number of issued Telstra
Shareholder voting shares;
"T" is the aggregate number of Telstra
Shareholder voting shares (if any) that
Telstra has previously transferred pursuant
to clause 9.13; and
"N" is the Telstra permitted number.
Permitted transfers of Shares with consent
9.15 Each Founder Shareholder may transfer Shares
to the other Founder Shareholder on such
terms and conditions, including as to price,
as may be agreed between them.
9.16 A Founder Shareholder, with the prior
approval of the other Founder Shareholders
may or a Shareholder, with the prior approval
of the Founder Shareholders may:
(a) dispose of Shares; or
(b) create a Security Interest over Shares
that it holds and allow that Security
Interest to subsist,
if the disposal of the Shares or creation and
subsistence of the Security Interest in all
respects conforms with the terms of the
approval and any conditions or requirements
to which the approval is stated to be subject
are fully performed or observed.
Pre-emption regime
9.17 At any time after the first anniversary of
the Completion Date a Founder Shareholder
("intending transferor") proposing to
transfer Shares that it holds may give notice
in writing to the other Founder Shareholder
of its intention to do so ("transfer notice")
specifying:
(a) the number of Shares proposed to be
disposed of ("offered number") being a
number which does not exceed the
permitted number;
37
--------------------------------------------------------------------------------
(b) the price per Share (in cash) for which
and terms and conditions upon which the
intending transferor proposes to transfer
the Shares; and
(c) the identity of a person to whom the
intending transferor wishes to transfer
the Shares ("proposed transferee").
9.18 For the purpose of clause 9.17 the permitted
number will be determined in accordance with
the formula:
( 15 )
(----- x S) - T =N
( 100 )
where:
"S" is the total number of issued Shares.
"T" is the aggregate number of Shares (if
any) that the intending transferor has
previously transferred pursuant to clause
9.19 to persons other than Founder
Shareholders; and
"N" is the permitted number.
9.19 If a transfer notice is given in accordance
with clause 9.17:
(a) The transfer notice will constitute an
irrevocable offer by the intending
transferor to transfer to the other
Founder Shareholder at the price per
Share and upon the terms and conditions
specified, the offered number of Shares
("offer").
(b) The other Founder Shareholder may accept
the offer in respect of the offered
number (but not less than the offered
number) of Shares by giving to the
intending transferor within 30 days after
the transfer notice is given a notice in
writing ("acceptance notice") accepting
the offer.
(c) If the offer is accepted by the other
Founder Shareholder in accordance with
paragraph (b) then the intending
transferor must on payment of the
purchase price in cleared funds and
fulfilment of terms and conditions
specified in the transfer notice,
transfer the offered number of Shares to
the other Founder Shareholder;
(d) The completion of the transfer of the
offered number of Shares is to take place
on or before the 30th day after the
acceptance notice is given.
(e) If the intending transferor fails to
transfer the offered number of Shares
pursuant to paragraphs (c) and (d) then
the intending transferor is taken to have
appointed any of the Directors or the
secretary of the Company as agent to
receive the purchase price and execute
the transfer and on receipt of the
purchase price and execution of the
transfer to hold the purchase price in
38
--------------------------------------------------------------------------------
trust for the intending transferor. A
receipt given by a Director or the
secretary of the Company for the price is
good discharge to the Founder Shareholder
paying it and the Company is empowered to
enter the name of that Founder
Shareholder in the Company's
shareholders' register as the holder in
place of the intending transferor of the
offered number of Shares.
(f) Within 30 days after the end of the
period of 30 days referred to in
paragraph (b), if the proposed transferee
is an eligible transferee (but not
otherwise) and the offer has not been
accepted in accordance with paragraph (b)
within the period of 30 days referred to
in that paragraph, then the intending
transferee may transfer to the proposed
transferee the offered number (but not
more or less than the offered number) of
Shares provided that the offered number
does not exceed the eligible number and
at a price per Share that does not exceed
the price per Share specified in the
offer and on terms and conditions not
more favourable than the terms and
conditions specified in the offer.
(g) For the purpose of applying paragraph
(f):
(i) the proposed transferee will be an
eligible transferee if and only if
the proposed transferee is a body
corporate that is not:
(A) if the intending transferor is
the PCCW Shareholder, a related
entity or controlled
corporation of PCCW or a
controlled corporation of ▇▇
▇▇; or
(B) if the intending transferor is
the Telstra Shareholder, a
related entity or controlled
corporation of Telstra,
and
(ii) the eligible number will be a number
that does not exceed the whole
number nearest to the value of "N"
in the formula
( 15 )
(----- x S) - T =N
( 100 )
where "S" is the total number of
issued Shares; and
"H" is the aggregate of the number
of Shares (if any) which are held
by the proposed transferee plus
the number of Shares (if any) over
which the proposed transferee is
entitled to any Security Interests.
39
--------------------------------------------------------------------------------
10 Related Party Operations Principles and Arrangements
--------------------------------------------------------------------------------
10.1 [Intentionally blank]
10.2 [Intentionally blank]
10.3 [Intentionally blank]
10.4 [Intentionally blank]
10.5 [Intentionally blank]
10.6 [Intentionally blank]
10.7 [Intentionally blank]
10.8 [Intentionally blank]
10.9 [Intentionally blank]
10.10 [Intentionally blank]
10.11 [Intentionally blank]
10.12 [Intentionally blank]
10.12A The parties acknowledge that the Founders
and one or more members of the Company Group
have agreed to enter into the Capacity
Allocation Agreement and the Reach Network
Services Agreement.
10.13 [Intentionally blank]
10.14 [Intentionally blank]
10.15 In clause 4, these meanings apply unless the
contrary intention appears:
Cross Border Connectivity means Connectivity
for the carriage of Telecommunications
Traffic between a place in a territory and a
place outside the territory.
Cross Border Connectivity Infrastructure
means Connectivity Infrastructure providing
Cross Border Connectivity and includes
Cross-over Connectivity Infrastructure but
does not include Domestic Connectivity
Infrastructure that is not Cross-over
Connectivity Infrastructure. To avoid doubt
Cross Border Connectivity Infrastructure
includes:
(a) a Cross Border (submarine or land) cable,
a Cross Border satellite, a landing
station of a Cross Border cable or an
earth station of a Cross Border
satellite; and
40
--------------------------------------------------------------------------------
(b) Connectivity Infrastructure that is
comprised in or otherwise forms part of
the PCCW international assets or the
Telstra international assets.
Cross Border Connectivity termination point
means a switch, router or similar equipment
in a territory that is closely associated
with and physically located at or close to:
(a) the landing station in the territory of a
Cross Border cable; or
(b) an earth station in the territory of a
Cross Border satellite.
Cross Border Service is a Connectivity
Service providing Cross Border Connectivity
whether or not it also provides Domestic
Connectivity.
Cross-over Connectivity Infrastructure means
Connectivity Infrastructure in a territory:
(a) providing Connectivity between:
(i) the landing station in the territory
of a Cross Border cable, or
(ii) the earth station in the territory
of a Cross Border satellite, and
a Cross Border Connectivity
termination point in the territory
that is associated with and
physically located at or reasonably
proximate to (and distances of less
than 15 kilometres and not
significantly more than 15
kilometres are to be generally
regarded as reasonably proximate)
the landing station or earth
station, and
(b) consisting of:
(i) a line between the landing station
or earth station and the Cross
Border Connectivity termination
point that is used solely for the
purpose of providing Cross Border
Connectivity; and
(ii) switches, routers, multiplexing
equipment and other facilities that
are not lines and are located at or
in the immediate vicinity of the
Cross Border Connectivity
termination point and are reasonably
required in accordance with good
engineering practice for the
predominant purpose of providing
Cross Border Connectivity.
Domestic Connectivity means Connectivity for
the carriage of Telecommunications Traffic
between places in the same territory.
Domestic Connectivity Infrastructure means
Connectivity Infrastructure providing
Domestic Connectivity and includes Cross-
41
--------------------------------------------------------------------------------
over Connectivity Infrastructure. To avoid
doubt Domestic Connectivity Infrastructure
includes switches, routers and other
associated facilities and equipment used for
the purpose of or otherwise in connection
with providing Domestic Connectivity.
Domestic Service is a Connectivity Service
providing Domestic Connectivity and not
providing Cross Border Connectivity.
a reference to a "Cross Border cable" or
"Cross Border satellite" is a reference to a
cable or satellite providing Cross Border
Connectivity.
references to "line" and "facilities" have
the same meanings respectively as in the
Telecommunications ▇▇▇ ▇▇▇▇ of the
Commonwealth of Australia.
a reference to a "relevant entity" is a
reference to a corporation, trust,
partnership, or other economic entity that is
engaged or is involved in building, owning,
managing operating and/or investing in Cross
Border Connectivity Infrastructure.
territory means:
(a) each of mainland China and Hong Kong and
Taiwan (which for the purposes of this
agreement are different territories);
(b) Australia;
(c) any country that is not and not a part
of:
(i) Australia; or
(ii) mainland China, Hong Kong and
Taiwan.]
10.16 In this clause 10, a reference to Australia:
(a) includes a reference to:
(i) the geographic areas comprised in:
(A) the Commonwealth of Australia;
(B) the Territory of Christmas
Island ("Christmas Island");
and
(C) the Territory of Cocos Island
("Cocos Island"),
each as defined in the Acts
Interpretation ▇▇▇ ▇▇▇▇ of
Australia, at the date of this
agreement, and
(ii) the geographic areas comprised in
the Australian Antarctic Territory
("Antarctica") as defined in the
Antarctic ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ of
Australia at the date of this
agreement, and
42
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(b) also is to be taken to include a
reference to the geographic area known as
East Timor
to the intent that, for the purposes of
applying this clause 10, Connectivity for the
carriage of Telecommunications Traffic
between places in any one or more of those
geographic areas is to be taken:
(a) to be Domestic Connectivity, and
(b) not to be or include Cross Border
Connectivity.
and references to Domestic Connectivity
Infrastructure and Cross Border Connectivity
apply accordingly.
10A [Intentionally blank]
--------------------------------------------------------------------------------
10AA [Intentionally blank]
--------------------------------------------------------------------------------
11 Performance and relationship
--------------------------------------------------------------------------------
Performance
11.1 Telstra undertakes to the PCCW Parties:
(a) duly to perform and observe all of
Telstra's obligations under or arising
out of this agreement,
(b) to procure that the Telstra Shareholder
duly performs and observes all its
obligations under or arising out of this
agreement,
(c) to procure that Telstra Holding duly
performs and observes all its obligations
under or arising out of this agreement,
and
(d) to procure that all provisions and
requirements that under this agreement
are stated to be required to be performed
or observed on the part of Telstra Group
are duly performed and observed as so
stated.
11.2 PCCW undertakes to the Telstra Parties:
(a) duly to perform and observe all of PCCW's
obligations under or arising out of this
agreement,
(b) to procure that the PCCW Shareholder duly
performs and observes all its obligations
under or arising out of this agreement
,and
(c) to procure that all provisions and
requirements that under this agreement
are stated to be required to be performed
or observed on the part of PCCW Group are
duly performed and observed as so stated.
43
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11.3 The Telstra Shareholder undertakes to the
PCCW Parties:
(a) duly to perform and observe all of the
Telstra Shareholder's obligations under
or arising out of this agreement, and
(b) to procure that all provisions and
requirements that under this agreement
are stated to be required to be performed
or observed on the part of Telstra Group
are duly performed and observed as so
stated.
11.4 The PCCW Shareholder undertakes to the
Telstra Parties:
(a) duly to perform and observe all of the
PCCW Shareholder's obligations under or
arising out of this agreement;
(b) to procure that all provisions and
requirements that under this agreement
are stated to be required to be performed
or observed on the part of PCCW Group are
duly performed and observed as so stated.
11.4A Telstra Holding undertakes to the PCCW
Parties:
(a) duly to perform and observe all of
Telstra Holding's obligations under or
arising out of this agreement;
(b) to procure that all provisions and
requirements that under this agreement
are stated to be required to be performed
or observed on the part of Telstra Group
are duly performed and observed as so
stated.
11.5 Each Shareholder must except to any extent
not permitted by law:
(a) exercise its voting and other rights as a
Shareholder;
(b) procure that each Director appointed by
it (when exercising powers, performing
duties or otherwise acting in the
capacity of a Director) acts and votes;
(c) procure that any person appointed or
nominated by it and holding office as a
director of the Company Group (other than
the Company) (when exercising powers,
performing duties or otherwise acting in
that capacity) acts and votes; and
(d) generally take all reasonable steps
within its power,
so as to procure and ensure that the
provisions and requirements of this agreement
are observed and that the businesses,
operations and affairs of the Company Group
are undertaken, developed and conducted in
conformity with this agreement and the
Approved Business Plan.
11.6 Each Shareholder must, except to any extent
not permitted by law, at all times:
(a) exercise its voting power and other
rights as a Shareholder; and
44
--------------------------------------------------------------------------------
(b) generally take all reasonable steps
within its power
to procure and ensure that the provisions and
requirements of this agreement are observed.
Good faith
11.7 Each Party agrees and declares that it will
at all times act in good faith in relation to
the other Parties with respect to all matters
relating to the Company Group and this
agreement.
12 Related party agreements
--------------------------------------------------------------------------------
Rights and remedies
12.1 Subject to clause 12.4, if at any time a
right or remedy (including termination) under
or in connection with this agreement or
another Establishment Agreement or other
agreement or arising however at law is
exercisable or enforceable by the Company
Group against or in respect of a Shareholder
or a related entity of a Shareholder:
(a) clause 5.31 will not apply to and a
Director appointed by the Shareholder
("Interested Shareholder") may not vote
on any proposed resolution of the Board
relating to the exercise or enforcement
of the right or remedy by the Company
Group; and
(b) any director of a subsidiary of the
Company who is a related person of the
Interested Shareholder may not vote on
any proposed resolution of the board of
directors of the subsidiary relating to
the exercise or enforcement of the right
or remedy by the Company Group.
12.2 A Director referred to in clause 12.1(a) must
be given
(a) notice of; and
(b) the opportunity to attend and (subject to
that clause) participate in any meeting
of the Board at which a proposed
resolution of the kind referred to in
that clause is considered.
12.3 A director referred to in clause 12.1(b) must
be given:
(a) notice of; and
(b) the opportunity to attend and (subject to
that clause) participate in any meeting
of the board of directors of the
subsidiary at which the proposed
resolution is considered.
12.4 For the purpose of considering and voting on
a proposed resolution of the kind referred to
in clause 12.1(a), a quorum for a meeting of
the Board will be the attendance of two
Directors including, if a Shareholder that is
not the Interested Shareholder is a 35%
Shareholder, at least one Director appointed
by that 35% Shareholder.
45
--------------------------------------------------------------------------------
13 Default
--------------------------------------------------------------------------------
Event of Default
13.1 For the purposes of this Agreement, a
Shareholder is a "defaulting Shareholder" if
the Shareholder or a holding company of the
Shareholder is Insolvent.
Loss of rights
13.2 If a Shareholder becomes a defaulting
Shareholder:
(a) each Director appointed by the defaulting
Shareholder will automatically cease to
be a Director;
(b) each related person of the defaulting
Shareholder who is a director of a
subsidiary of the Company will
automatically cease to be a director of
that subsidiary;
(c) the defaulting Shareholder will not have
any rights pursuant to this agreement to
appoint:
(i) Directors pursuant to clause 5; or
(ii) directors of subsidiaries of the
Company pursuant to clause 5AA;
(d) a quorum for a meeting of the Board will
be the attendance of two directors;
(e) if the defaulting Shareholder is a
Founder Shareholder, clause 12 will not
apply;
(f) the defaulting Shareholder will not have
any rights under clause 18 (but, to avoid
doubt, without prejudice to any rights it
may have at law);
but otherwise this agreement will remain in
full force and effect in accordance with its
terms.
13.3 Clauses 13.2 (c), (d), (e) and (f) apply for
so long as the defaulting Shareholder or a
holding company of the defaulting Shareholder
is Insolvent.
13.4 If a Shareholder becomes a defaulting
Shareholder, a Founder Shareholder that is
not a defaulting Shareholder may notify the
secretaries of the Company Group that clauses
13.2(a) and (b) are in effect and, on receipt
of the notice, the secretaries must
immediately remove the names of the directors
affected by clauses 13.2(a) and (b) from the
registers of directors and officers of the
Company Group.
Holding Company
13.5 For the purposes of clause 13.1 and 13.3, a
holding company:
(a) of the PCCW Shareholder, does not include
any body corporate that is a holding
company of PCCW;
46
--------------------------------------------------------------------------------
(b) of the Telstra Shareholder, does not
include any body corporate that is a
holding company of Telstra.
14 Regulatory issues
--------------------------------------------------------------------------------
14.1 Each Party must take reasonable steps to
consult with the others and coordinate any
significant discussions with any Government
Agency in relation to a material aspect of
the Business or regulations or laws affecting
the Company. The Parties acknowledge that
nothing contained in this clause will prevent
any Party from having individual discussions
with a Government Agency.
15 Constitution of Company and subsidiaries
--------------------------------------------------------------------------------
Conforming constitutions
15.1 Subject to clause 15.1A, the Parties will
consult together in good faith to agree and
together and individually implement or cause
to be implemented as appropriate, all actions
that may be required or expedient to procure
that the Constitution and the constituent
documents of each subsidiary of the Company
at all times reflect and in all other
material respects are consistent with this
agreement as amended from time to time
(including clauses 5, 5AA and 13).
15.1A In any case where either Founder Shareholder
reasonably requires the constituent documents
of any subsidiary of the Company to be
amended in accordance with clause 15.1, such
documents will not be required to include
provisions corresponding to clauses 5.8 to
5.17A.
15.1B [Intentionally blank]
Inconsistency
15.2 The Parties intend that if an inconsistency
arises between:
(a) the Constitution and this agreement; or
(b) the constituent documents of a subsidiary
of the Company and this agreement,
this agreement prevails to the extent of the
inconsistency and each Shareholder agrees to
take any steps which for the time being are
within its power and are necessary to procure
that the Constitution or the constituent
documents of the subsidiary are promptly
altered to eliminate the inconsistency.
16 Warranties and Undertakings
--------------------------------------------------------------------------------
16.1 As at 13 October 2000, Telstra warrants to
PCCW that:
(a) the Company is duly incorporated by
registration and in existence under the
Companies ▇▇▇ ▇▇▇▇ of Bermuda,
47
--------------------------------------------------------------------------------
(b) since its registration the Company has
not traded or received any income or made
any gains or incurred losses or
liabilities in excess of US$10,000,
(c) the Company has no assets or liabilities
(whether actual, contingent or
otherwise),
(d) the issued and allotted share capital of
the Company consists of 12,000 fully
unpaid Shares of which:
(i) 6,000 Shares are duly registered in
the name of the PCCW Shareholder as
holder,
(ii) 6000 Shares are duly registered in
the name of the Telstra Shareholder,
and
(iii) and the Company has not issued or
created any other security,
(e) except for or as contemplated by the
Establishment Agreements there is no
agreement in force which grants the right
to any person to call for the issue or
allotment of any Share or to require the
issue or creation by the Company of any
other security,
(f) the Company has conducted and is
conducting its affairs (including the
establishment and maintenance of its
books and records and notifications to
the relevant authorities) in all respects
in accordance with all applicable laws;
(g) the Directors are:
(i) Alexander ▇▇▇▇▇▇▇ ▇▇▇▇▇ ; and
(ii) ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
(h) the secretary of the Company is ▇▇▇▇
▇▇▇▇.
16.2 Telstra indemnifies PCCW against all
liability and loss arising directly or
indirectly from, and any costs, charges and
expenses incurred in connection with, any
inaccuracy in or breach of any of the
warranties given by Telstra in clause 16.1.
16.3 As at 13 October 2000, PCCW warrants and
undertakes to the Telstra Parties that:
(a) PCCW:
(i) is a company duly incorporated by
registration and in existence under
the Companies Ordinance; and
(ii) has full corporate power to own
property; and
(b) the PCCW Shareholder:
48
--------------------------------------------------------------------------------
(i) is a company duly incorporated by
registration and in existence under
the Companies ▇▇▇ ▇▇▇▇ of Bermuda;
and
(ii) has full corporate power to own
property;
(c) PCCW Shareholder is and will be
immediately after Completion a direct
wholly owned subsidiary of PCCW;
(d) each of the PCCW Parties has the power to
enter into and perform this agreement and
has obtained or on or prior to Completion
will have obtained all necessary consents
to enable it to do so;
(e) the entry into and performance of this
agreement by the PCCW Parties or either
of them does not constitute a breach of
any obligation (including but not limited
to any statutory contractual or fiduciary
obligation) or default under any
agreement or undertaking by which either
of the PCCW Parties is bound;
(f) where a PCCW Entity is a party to an
Establishment Agreement:
(i) that PCCW Entity has the power to
enter into and perform that
Establishment Agreement and has
obtained or on or prior to
Completion will have obtained all
necessary consents to enable it to
do so; and
(ii) the entry into and performance of
that Establishment Agreement by that
PCCW Entity does not constitute a
breach of any obligation (including
but not limited to any statutory
contractual or fiduciary obligation)
or default under any agreement or
undertaking, by which that PCCW
Entity is bound;
(g) the PCCW Shareholder is the legal and
beneficial owner of the PCCW Shares and
no Security Interest has been created or
subsists in relation to any of the PCCW
Shares;
(h) immediately after Completion:
(i) the PCCW Shareholder will be the
legal and beneficial owner of the
PCCW Shares and no Security Interest
will have been created or subsist
over any of the PCCW Shares other
than:
(A) pursuant to and in accordance
with the Establishment
Agreement entitled Equitable
Mortgage of Shares; or
(B) a Security Interest that:
49
--------------------------------------------------------------------------------
(aa) secures indebtednesses
created pursuant to an arms
length bona fide
arrangement with a
financial institution that
is not a related entity of
the PCCW Shareholder; and
(ab) the indebtedness is
indebtedness of the PCCW
Group; and
(ii) PCCW will be the legal and
beneficial owner of all PCCW
Shareholder Securities and no
Security Interest will have been
created or subsist over any PCCW
Shareholder Securities other than a
Security Interest that:
(A) secures indebtednesses created
pursuant to an arms length bona
fide arrangement with a
financial institution that is
not a related entity of the
PCCW Shareholder; and
(B) the indebtedness is
indebtedness of the PCCW Group.
16.4 PCCW indemnifies the Telstra Parties against
all liability or loss arising directly or
indirectly from, and any costs, charges and
expenses incurred in connection with, any
inaccuracy in or breach of any of the
warranties and undertakings given by it in
clause 16.3.
16.5 As at 13 October 2003, Telstra represents and
warrants to the PCCW Parties that:
(a) Telstra:
(i) is duly incorporated and in
existence under the Corporations
Law;
(ii) has full corporate power to own
property; and
(b) each of the Telstra Parties has the power
to enter into and perform this agreement
and has obtained all necessary consents
to enable it to do so;
(c) the entry into and performance of this
agreement by the Telstra Parties or
either of them does not constitute a
breach of any obligation (including, but
not limited to, any statutory,
contractual or fiduciary obligation), or
default under any agreement or
undertaking, by which either of the
Telstra Parties is bound;
(d) where a Telstra Entity is a party to an
Establishment Agreement:
50
--------------------------------------------------------------------------------
(i) that Telstra Entity has the power to
enter into and perform that
Establishment Agreement and has
obtained all necessary consents to
enable it to do so; and
(ii) the entry into and performance of
that Establishment Agreement by that
Telstra Entity does not constitute a
breach of any obligation (including,
but not limited to, any statutory,
contractual or fiduciary
obligation), or default under any
agreement or undertaking, by which
that party is bound; and
(e) Telstra Holding:
(i) is duly incorporated by registration
and in existence under the
Corporations Law; and
(ii) is and will be immediately after
Completion a direct wholly owned
subsidiary of Telstra;
(f) the Telstra Shareholder:
(i) is a company duly incorporated by
registration and in existence under
the Companies ▇▇▇ ▇▇▇▇ of Bermuda;
and
(ii) is and will be immediately after
Completion a direct wholly owned
subsidiary of Telstra Holding;
(iii) the Telstra Shareholder is the
legal and beneficial owner of the
Telstra Shares and no Security
Interest has been created or
subsists over any of the Telstra
Shares;
(g) immediately after Completion:
(i) the Telstra Shareholder will be
legal and beneficial owner of the
Telstra Shares and no Security
Interest will have been created or
subsist over any of the Telstra
Shares (other than a Security
Interest that:
(A) secures indebtednesses created
pursuant to an arms length bona
fide arrangement with a
financial institution that is
not a related entity of the
Telstra Shareholder; and
(B) the indebtedness is
indebtedness of the Telstra
Group); and
(ii) Telstra Holding will be the legal
and beneficial owner of all Telstra
Shareholder Securities and no
Security Interest will have been
created or subsist over any
51
--------------------------------------------------------------------------------
Telstra Shareholder Securities
(other than a Security Interest that:
(A) secures indebtednesses created
pursuant to an arms length bona
fide arrangement with a
financial institution that is
not a related entity of the
Telstra Shareholder; and
(B) the indebtedness is
indebtedness of the Telstra
Group).
16.6 Telstra indemnifies the PCCW Parties against
all liability or loss arising directly or
indirectly from, and any costs, charges and
expenses incurred in connection with, any
inaccuracy in or breach of any of the
warranties given by it in clause 16.5.
17 Indemnities
--------------------------------------------------------------------------------
If for any reason an amount received by an
indemnified party under any of the
indemnities in this agreement is subject to
Tax, the other party agrees to pay the
indemnified party an additional amount so
that, after deducting from that amount all
Tax paid or payable in respect of the
receipt, the balance remaining is equal to
the amount due under the relevant indemnity.
18 Company information
--------------------------------------------------------------------------------
Accounting Records: Accounting Principles: Access
18.1 The Company must:
(a) make and keep books, records and
accounts, which, in reasonable detail,
accurately and fairly reflect the
transactions and dispositions of the
assets of the Company Group; and
(b) devise and maintain an adequate system of
internal accounting controls which shall,
among other things, be sufficient to
provide reasonable assurances that:
(i) transactions are executed in
accordance with management's general
or specific authorisation;
(ii) transactions are recorded as
necessary:
(A) to permit preparation of
financial statements in
conformity with the GAAP
requirements of each Founder
and US GAAP or any other
criteria applicable to such
statements; and
(B) to maintain accountability for
assets;
(iii) access to assets is permitted only
in accordance with management's
general or specific authorisation;
and
52
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(iv) the recorded accountability for
assets is compared with the existing
assets at reasonable intervals and
appropriate action is taken with
respect to any differences.
18.2 The financial accounts of the Company will be
closed at the end of each financial year. The
financial statements of the Company will be
audited each year by the auditor of the
Company to the extent:
(a) required by statute or regulation;
(b) required by the auditors of either
Founder Shareholder in order to report on
the financial statements of such Founder
Shareholder;
(c) necessary to meet either Founder
Shareholder's tax reporting requirements;
or
(d) mutually agreed by the Founder
Shareholders.
18.3 Each Founder Shareholder, for so long as it
is a 20% Shareholder, or its representatives
shall have the right to inspect any of the
properties and financial and other books and
records of the Company and make copies of
such financial and other books and records,
at reasonable times and upon reasonable
notice, as often as such Shareholder may
request. All expenses associated with such
inspections and copying will be at the
requesting Founder Shareholder's expense.
18.4 The Company must prepare and give to a
Founder Shareholder in a timely and accurate
manner on request all Company Information
that the Founder Shareholder or any related
entity of the Founder Shareholder must have
or reasonably requires for or in connection
with any of the following purposes:
(a) to prepare and lodge accurate and
complete tax returns and comply with all
applicable tax reporting requirements in
any relevant jurisdiction;
(b) to comply with disclosure or reporting or
other applicable requirements of:
(i) any stock exchange on which shares
of the Founder Shareholder or a
related entity of the Founder
Shareholder are listed or proposed
to be listed; or
(ii) any securities commission, stock
exchange or regulatory authority
concerning prospectus or other
requirements in relation to any
financing or capital raising to be
undertaken by a Founder Shareholder
or a related entity of the Founder
Shareholder; or
53
--------------------------------------------------------------------------------
(iii) any applicable statutory,
governmental or similar obligation
or direction to report or provide
information to a Government Agency;
(c) for purposes of this clause 18.4, Company
Information shall include, without
limitation:
(i) a financial reporting package
including a balance sheet, income
statement, other financial data
reasonably specified by a Founder
Shareholder, in a format necessary
for such Shareholder's reporting
requirements, on a monthly,
quarterly and annual basis, which
shall be prepared and submitted to
the Founder Shareholder within ten
business days after each month,
quarter or year end;
18.5 The Company shall give, within ten days after
first becoming aware thereof, written notice
to the Founder Shareholders of the following:
(a) any development that has resulted in, or
could reasonably be anticipated to result
in, a material adverse change or effect
on the Business;
(b) the filing or commencement of, or notice
of intention by any person to file or
commence, any material action, suit or
proceeding, whether at law or in equity
or before any governmental authority,
against the Company Group or any director
or executive officer thereof;
(c) all complaints, claims, or adverse
reactions arising from, or in connection
with, the manufacture, distribution,
handling, sale, administration or use of
the products and services provided by the
Company Group; and
(d) the receipt of any notice of any
violation of any environmental law or of
any potential responsibility for any
environmental liability.
18.6 The Company undertakes to Telstra to procure
that the Company Group gives to Telstra Group
and PCCW undertakes to Telstra to procure
that the PCCW Group gives to Telstra in each
case in a timely and accurate manner on
request all information relating to PCCW's
international assets, prior to Completion,
that the Company or PCCW (as the case may be)
has or is able to provide and Telstra must
have or reasonably requires for the purposes
of preparing disclosing or otherwise
providing historical proforma financial
statements and other historical or
reconstructed information in order to be able
to comply with any requirements of any
Government Agency or stock exchange
applicable to or in connection with offering
or issuing bonds, debentures or other debt or
equity securities or otherwise raising or
procuring debt or equity fundings.
54
--------------------------------------------------------------------------------
18.7 The Company undertakes to PCCW to procure
that the Company Group gives to PCCW Group
and Telstra undertakes to PCCW to procure
that Telstra Group gives to PCCW Group in
each case in a timely and accurate manner on
request all information relating to Telstra's
international assets, prior to Completion,
that the Company or
Telstra (as the case may be) has or is able
to provide and PCCW must have or reasonably
requires for the purposes of preparing
disclosing or otherwise providing historical
proforma financial statements and other
historical or reconstructed information in
order to be able to comply with
requirements of any government agency or
stock exchange applicable to or in
connection with offering or issuing
bonds, debentures or other debt or equity
securities or otherwise raising or
procuring debt or equity funding.
18.8 The Company Information to which clause 18.4
applies includes:
(a) in the case of the Telstra Shareholder,
information required by Telstra Group for
any of the following purposes:
(i) to enable Telstra to comply with the
continuous disclosure and other
applicable requirements of the
listing rules of the Australian
Stock Exchange Limited; and
(ii) to enable the Telstra Group to
prepare, lodge and process tax
returns and observe all applicable
requirements under the Australian
tax regime; and
(iii) to enable the Telstra Group to
observe any requirements of Division
3 of Part 2 of the Telstra
Corporation ▇▇▇ ▇▇▇▇; and
(iv) to enable the Telstra Group to
comply with the periodic and annual
reporting requirements and any
disclosure or prospectus
requirements of:
(A) the Securities and Exchange
Commission of the United States
or the New York Stock Exchange
under the Securities Act of
1933 or the Securities Exchange
Act of 1934; and
(B) any other stock exchange on
which its securities are
listed;
(b) in the case of the PCCW Shareholder,
information required by PCCW Group for
any of the following purposes:
(i) to enable PCCW Group to comply with
the disclosure and other applicable
requirements of:
(A) the listing agreement between
PCCW and The Stock Exchange of
Hong Kong Limited;
55
--------------------------------------------------------------------------------
(B) the disclosure and other
applicable requirements of any
stock exchange on which its
securities are listed;
(ii) to enable the PCCW Group to prepare,
lodge and process tax returns and
observe all applicable requirements
under the Hong Kong tax regime; and
(iii) to enable PCCW to comply with the
periodic and annual reporting
requirements and any disclosure or
prospectus requirements of the
Securities and Exchange Commission
of the United States or the New York
Stock Exchange under the Securities
Act of 1933 or the Securities
Exchange Act of 1934.
18.9 In addition to the other reporting
requirements set out in this clause 18, each
Founder Shareholder and the Company shall
provide all financial and other information
as is reasonably requested by the other
Founder Shareholder including information
relating to the other Shareholder, the
Company Group or intercompany transactions to
meet the requesting Shareholder's reasonable
requirements for such information for any of
the purposes set out in clauses 18.4 and
18.8.
18.10 Subject to law and the provisions of clause
19 a related person of a Founder Shareholder
may disclose to and discuss with the Founder
Shareholder and any related person of the
Founder Shareholder, any information,
including Company Information, obtained in
the course of acting or as otherwise in the
capacity of:
(a) a Director; or
(b) a director of a subsidiary of the
Company.
19 Confidentiality
--------------------------------------------------------------------------------
Definitions
19.1 For the purposes of this clause 19:
(a) a recipient of information is a person
that receives or obtains the information;
(b) a discloser of information is a person
from whom a recipient receives or obtains
the information;
(c) the permitted purposes are:
(i) with respect to Confidential
Information of the Company and/or
Confidential Information of a
Founder:
(A) the performance, observance,
implementation or enforcement
of rights or obligations
arising under this agreement
and/or an Establishment
56
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Agreement and/or any future
agreement between the Company
Group and the Founder Group;
(B) the direction, management
and/or conduct of the Company
Group and/or the Business;
(ii) also with respect to Confidential
Information of the Company that a
Founder Group or a Representative of
a Founder Group is given by the
Company or otherwise receives or
obtains from the Company Group or a
Representative of the Company Group:
(A) where the Founder Group is
Telstra Group, the purposes
referred to in clauses 18.4,
18.6 and 18.8(a) and 18.9; and
(B) where the Founder Group is the
PCCW Group, the purposes
referred to in clauses 18.4,
18.6 and 18.8(b) and 18.9;
(iii) also with respect to Confidential
Information of Telstra Group that
PCCW Group or Representative of PCCW
Group is given by the Company or
Telstra or otherwise receives or
obtains from, or from a
Representative of, the Company Group
or Telstra Group, the purposes
referred to in clauses 18.4, 18.6,
18.8(b) and 18.9; and
(iv) also with respect to Confidential
Information of PCCW Group that
Telstra Group or a Representative of
Telstra Group is given by the
Company or PCCW or otherwise
receives or obtains from or from a
representative of the Company Group
or PCCW Group, the purposes referred
to in clauses 18.4, 18.6, 18.8(a)
and 18.9.
(d) Discloser Group means:
(i) if the discloser is:
(A) the Company Group, or
(B) a Representative of the Company
Group,
the Company Group,
(ii) if the discloser is:
(A) a Founder Group, or
(B) a Representative of a Founder
Group,
that Founder Group.
(e) Receiver Group means:
57
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(i) if the receiver is:
(A) the Company Group, or
(B) a Representative of the
Company,
the Company Group,
(ii) if the receiver is:
(A) a Founder Group, or
(B) a Representative of a Founder
Group,
that Founder Group.
(f) Confidential Information of the Company
means Company Information in whatever
form, however provided or stored and in
whatever manner obtained or received
that:
(i) is confidential non public or
proprietary information, and
(ii) is not Excluded Information.
(g) Information of a Founder Group is
information of any kind (including
financial data and information) relating
to produced or used for or in connection
with the Founder Group the business
carried on by or assets liabilities or
other affairs of the Founder Group.
(h) Confidential Information of a Founder
Group is Information of the Founder Group
that:
(i) is confidential non public or
proprietary information in whatever
form, however provided or stored and
in whatever manner obtained or
received, and
(ii) is not Excluded Information.
(i) Excluded Information means information
that:
(i) is in or becomes part of the public
domain other than through breach of
this agreement or an obligation of
confidence owed to the Discloser
Group or another person; or
(ii) the Receiver Group can prove by
contemporaneous written
documentation was already known to
the Receiver Group at the time it
was received or obtained from the
discloser by the recipient (unless
such knowledge arose from disclosure
of information in breach of an
obligation of confidentiality).
58
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19.2 The Company must not and must procure other
Company Group Entities and Representatives of
Company Group Entities do not disclose or use
Confidential Information of a Founder Group
received and/or obtained from that Founder
Group or a Representative of that Founder
Group, except in accordance with clauses 19.3
and 19.4.
19.3 Confidential Information of Telstra Group
that the Company Group or a Representative of
the Company Group receives and/or obtains
from the Telstra Group or a Representative of
the Telstra Group:
(a) may be used by the Company Group and its
Representatives for or in connection with
permitted purposes; and
(b) for and in connection with permitted
purposes may be disclosed:
(i) between the Company, other Company
Entities and/or Representatives of
the Company Group; and
(ii) between the Company Group and
Representatives of the Company Group
and the Telstra Group and
Representatives of the Telstra
Group,
if and as the Company Group or
Representatives of the Company Group
in their discretion consider to be
expedient or desirable for or in
connection with permitted purposes;
(c) may be disclosed by the Company Group or
a Representative of the Company Group:
(i) to any person with the prior consent
of Telstra Group;
(ii) as required to enable the Company
Group to pursue or defend legal
proceedings or any arbitration;
(iii) to any person (including to or to a
Representative of PCCW Group) if and
to the extent that is necessary or
reasonably required for or in
connection with permitted purposes.
19.4 Confidential Information of PCCW Group that
the Company Group or a Representative of the
Company Group receives and/or obtains from
PCCW Group or a Representative of PCCW Group:
(a) may be used by the Company Group and its
Representatives for or in connection with
permitted purposes; and
(c) for and in connection with permitted
purposes may be disclosed:
(i) between the Company, other Company
Entities and/or Representatives of
the Company Group; and
59
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(ii) between the Company Group and
Representatives of the Company Group
and PCCW Group and Representatives
of PCCW Group,
if and as the Company Group or
Representatives of the Company Group
in their discretion consider to be
expedient or desirable for or in
connection with permitted purposes;
(d) may be disclosed by the Company Group or
a Representative of the Company Group:
(i) to any person with the prior consent
of PCCW Group;
(ii) as required to enable the Company
Group to pursue or defend legal
proceedings or any arbitration;
(iii) to any person (including to or to a
Representative of Telstra Group) if
and to the extent that is necessary
or reasonably required for or in
connection with permitted purposes.
19.5 The Company must use all reasonable
endeavours to procure that where the Company
Group or a Representative of the Company
Group discloses information that is
Confidential Information of a Founder Group
to any person as permitted under clause
19.3(c) or 19.4(c), the recipient does not
use or further disclose the information
except for or in connection with relevant
permitted purposes.
19.6 Telstra must not and must procure that other
Telstra Entities and the Representatives of
Telstra Entities do not disclose or use:
(a) Confidential Information of the Company
Group received and/or obtained from
either:
(i) the Company Group or a
Representative of the Company Group;
or
(ii) the PCCW Group or a Representative
of the PCCW Group; or
(b) Confidential Information of PCCW Group
received and/or obtained from either:
(i) the PCCW Group or a Representative
of the PCCW Group; or
(ii) the Company Group or a
Representative of the Company Group,
except in accordance with clauses 19.7 and
19.8.
19.7 Confidential Information of the Company Group
that Telstra Group or a Representative of
Telstra Group receives and/or obtains from
the Company Group or a Representative of the
Company Group:
60
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(a) may be used by Telstra Group and its
Representatives for or in connection with
permitted purposes; and
(b) for or in connection with the relevant
purposes may be disclosed:
(i) between Telstra, other Telstra
Entities and/or Representatives of
Telstra Group; and
(ii) between Telstra Group and
Representatives of Telstra Group and
the Company Group and
Representatives of the Company
Group,
if and as Telstra Group or
Representatives of Telstra Group in
their discretion consider to be
expedient or desirable for or in
connection with permitted purposes;
(c) may be disclosed by Telstra Group or a
Representative of Telstra Group:
(i) to any person with the prior consent
of the Company Group;
(ii) as required to enable Telstra Group
to pursue or defend legal
proceedings or any arbitration;
(iii) to any person (including to or to a
Representative of PCCW Group) if and
to the extent that is necessary or
reasonably required for or in
connection with permitted purposes.
19.8 Confidential Information of PCCW Group that
Telstra Group or a Representative of Telstra
Group receives and/or obtains from the PCCW
Group or a Representative of the PCCW Group
or the Company Group or a Representative of
the Company Group:
(a) may be used by Telstra Group and its
Representatives for or in connection with
permitted purposes; and
(b) for and in connection with permitted
purposes may be disclosed:
(i) between Telstra, other Telstra
Entities and/or Representatives of
Telstra Group; and
(ii) between Telstra Group and
Representatives of Telstra Group and
the Company Group and
Representatives of the Company
Group,
if and as Telstra Group or
Representatives of Telstra Group in
their discretion consider to be
expedient or desirable for or in
connection with permitted purposes;
61
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(c) may be disclosed by Telstra Group or a
Representative of Telstra Group:
(i) to any person with the prior consent
of PCCW Group;
(ii) as required to enable the Telstra
Group to pursue or defend legal
proceedings or any arbitration;
(iii) to any person if and to the extent
that is necessary or reasonably
required for or in connection with
any of the permitted purposes.
19.9 Telstra must use all reasonable endeavours to
procure that where Telstra Group or a
Representative of Telstra Group discloses
information that is Confidential Information
of the Company or of the PCCW Group to any
person as permitted under clauses 19.7(c) or
19.8(c), the recipient does not use or
further disclose the information except for
or in connection with relevant permitted
purposes.
19.10 PCCW must not and must procure that other
PCCW Entities and the Representatives of PCCW
Entities do not disclose or use:
(a) Confidential Information of the Company
Group received and/or obtained from
either:
(i) the Company Group or a
Representative of the Company Group;
or
(ii) the Telstra Group or a
Representative of the Telstra Group:
or
(b) Confidential Information of the Telstra
Group received and/or obtained from
either:
(i) PCCW Group or a Representative of
the PCCW Group; or
(ii) the Company Group or a
Representative of the Company Group;
except in accordance with clause 19.11 and
19.12.
19.11 Confidential Information of the Company that
PCCW Group or a Representative of PCCW Group
receives and/or obtains from the Company
Group or a Representative of the Company
Group:
(a) may be used by PCCW Group and its
Representatives for or in connection with
permitted purposes; and
(b) for and in connection with permitted
purposes may be disclosed:
(i) between PCCW, other PCCW Entities
and/or Representatives of PCCW
Group; and
62
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(ii) between PCCW Group and
Representatives of PCCW Group and
the Company Group and
Representatives of the Company
Group,
if and as PCCW Group or
Representatives of PCCW Group in
their discretion consider to be
expedient or desirable for or in
connection with permitted purposes;
(c) may be disclosed by PCCW Group or a
Representative of PCCW Group:
(i) to any person with the prior consent
of the Company Group;
(ii) as required to enable PCCW Group to
pursue or defend legal proceedings
or any arbitration;
(iii) to any person (including to or to a
Representative of Telstra Group) if
and to the extent that is necessary
or reasonably required for or in
connection permitted purposes.
19.12 Confidential Information of Telstra Group
that PCCW Group or a Representative of PCCW
Group receives and/or obtains from the
Telstra Group or a Representative of the
Telstra Group or the Company Group or a
Representative of the Company Group:
(a) may be used by PCCW Group and its
Representatives for or in connection with
permitted purposes; and
(b) for and in connection with permitted
purposes may be disclosed:
(i) between PCCW, other PCCW entities
and/or Representatives of PCCW
Group; and
(ii) between PCCW Group and
Representatives of PCCW Group and
the Company Group and
Representatives of the Company
Group,
if and as PCCW Group or
Representatives of PCCW Group in
their discretion consider to be
expedient or desirable for or in
connection with any of the permitted
purposes;
(c) may be disclosed by PCCW Group or a
Representative of PCCW Group:
(i) to any person with the prior consent
of Telstra Group;
(ii) as required to enable PCCW Group to
pursue or defend legal proceedings
or any arbitration;
63
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(iii) to any person if and to the extent
that is necessary or reasonably
required for or in connection with
permitted purposes.
19.13 PCCW Group must use all reasonable
endeavours to procure that where PCCW Group
or a Representative of PCCW Group discloses
information that is Confidential Information
of the Company or of Telstra Group to any
person as permitted under clause 19.11(c) or
19.12(c), the recipient does not use or
further disclose the information except for
or in connection with relevant permitted
purposes.
Announcements or releases
19.14 Neither Telstra Group, nor PCCW Group nor
the Company shall make press or other
announcements or releases relating to this
agreement or the transactions the subject of
this agreement without the approval of both
Founders to the form and manner of the
announcement or release unless and except to
the extent that the making of the
announcement or release is required by law or
by a stock exchange.
20 Expiry
--------------------------------------------------------------------------------
20.1 Upon a person that holds Shares transferring
all of its Shares and ceasing to be a
Shareholder in accordance with the terms of
this agreement ("cessation"), that person will
cease to have any rights and benefits as a
Shareholder or as a party to this agreement
and will cease to be bound by the obligations
and provisions applicable to it as a
Shareholder or as a party pursuant to this
agreement except that:
(a) all its obligations and liabilities to
other parties that have accrued and
subsist at the date of cessation will be
preserved and continue to be enforceable;
(b) it will continue to be bound by and
obliged to perform and observe its
obligations pursuant to clauses 18.9 and
19 as if it was still a Shareholder; and
(c) it will continue to have rights pursuant
to clause 18 for a period of 6 months
from the date of cessation as if it was
still a Shareholder; and
(d) it will continue to have rights pursuant
to clause 19 as if it was still a party.
20.2 If clause 20.1 applies to a Founder
Shareholder, then at the date of cessation,
the Founder that is a related entity of the
Founder Shareholder will cease to have any
rights and benefits as a party to this
agreement and will cease to be bound by the
obligations and provisions applicable to it
pursuant to this agreement except that:
(a) all its obligations and liabilities to
other parties that have accrued and
subsist at the date of cessation will be
preserved and continue to be enforceable;
and
64
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(b) it will continue to be bound by and
obliged to perform and observe its
obligations pursuant to clauses 10 and 19
as if it was still a party;
(c) it will continue to have rights pursuant
to clause 18 for a period of 6 months
from the date of cessation as if it was
still a party;
(d) it will continue to have rights pursuant
to clause 19 as if it was still a party.
21 Severability
--------------------------------------------------------------------------------
If the whole or any part of a provision of
this agreement is void, unenforceable or
illegal in a jurisdiction it is severed for
that jurisdiction. The remainder of this
agreement has full force and effect and the
validity or enforceability of that provision
in any other jurisdiction is not affected.
This clause has no effect if the severance
alters the basic nature of this agreement or
is contrary to public policy.
22 Entire agreement
--------------------------------------------------------------------------------
This agreement constitutes the entire
agreement of the Parties about its subject
matter and supersedes all previous
agreements, understandings and negotiations
on that subject matter.
23 No representations or warranties
--------------------------------------------------------------------------------
23.1 Each Party acknowledges that in entering into
this agreement it has not relied on any
representations or warranties about the
subject matter except as expressly provided by
the written terms of this agreement or any
other Establishment Agreement or a document
referred to in any Establishment Agreement.
23.2 A Party is not liable to another Party (in
equity, contract or tort, under the
Misrepresentation ▇▇▇ ▇▇▇▇ (UK) or in any
other way) for a representation that is not
set out in this agreement or any other
Establishment Agreement or a document referred
to in any Establishment Agreement.
23.3 Nothing in this clause 23 has the effect of
limiting or restricting any liability of a
Party arising as a result of fraud.
24 No undisclosed principals or undisclosed trusts
--------------------------------------------------------------------------------
Except as expressly stated in writing in this
agreement, no person enters into this
agreement as an agent for any other person or
as trustee of any trust or on behalf or for
the benefit of any other person.
65
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25 No partnerships
--------------------------------------------------------------------------------
Except as expressly stated in writing in this
agreement, nothing contained or implied in
this agreement constitutes a Party the
partner, agent, or legal representative of
another Party for any purpose or creates
any partnership, agency or trust, and
no Party has any authority to bind another
Party in any way.
26 Assignment
--------------------------------------------------------------------------------
A Party may not assign or otherwise deal with
its rights under this agreement or allow any
interest in them to arise or be varied in
each case, without the consent of the other
Parties.
27 Notices
--------------------------------------------------------------------------------
Form
27.1 Unless expressly stated otherwise in this
agreement, any notice, certificate, consent,
approval, waiver and other communication in
connection with this agreement
("Notification") must be in writing, signed by
the person by which it is given or issued
("sender") or an Authorised Officer of the
sender and marked for the attention of "the
Company Secretary" of each person to whom it
is given ("recipient") or, if a recipient has
notified otherwise, then marked for attention
in the last way notified.
Delivery
27.2 Each Notification must be:
(a) left at the address set out or referred to
below; or
(b) sent by prepaid ordinary post (airmail if
appropriate) to that address; or
(c) sent by fax to the fax number set out or
referred to in the below.
However, if a recipient has notified a
changed postal address or changed fax number,
then the Notification must be left or sent to
that address or number.
(a) For the Telstra Parties:
Address: Telstra Corporation Limited
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇
(b) For the Company:
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Address: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇
Bermuda
Fax: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
(c) For the PCCW Parties:
Address: ▇▇/▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
When effective
27.3 A Notification takes effect from the time it
is received unless a later time is specified.
Receipt - post
27.4 If sent by post, a Notification is taken to be
received three days after posting (or seven
days after posting if sent from a place in
Australia to a place outside Australia, or
from a place in Hong Kong to a place outside
Hong Kong).
Receipt - fax
27.5 If sent by fax, a Notification is taken to be
received at the time shown in the transmission
report as the time that the whole fax was
sent.
Receipt - general
27.6 Despite clauses 27.4 and 27.5, if received
after 5.00pm at the place of receipt or on a
non-Business Day, a Notification is to be
taken to be received at 9.00am on the next
Business Day.
28 General
--------------------------------------------------------------------------------
Discretion in exercising rights
28.1 A Party may exercise a right or remedy or give
or refuse its consent in any way it considers
appropriate (including by imposing
conditions), unless this agreement expressly
states otherwise.
Partial exercising of rights
28.2 If a Party does not exercise a right or remedy
fully or at a given time, the party may still
exercise it later.
No liability for loss
28.3 A Party is not liable for loss caused by the
exercise or attempted exercise of, failure to
exercise, or delay in exercising a right or
remedy under this agreement.
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Approvals and consents
28.4 By giving its approval or consent a Party does
not make or give any warranty or
representation as to any circumstance relating
to the subject matter of the consent or
approval.
Remedies cumulative
28.5 The rights and remedies provided in this
agreement are in addition to other rights and
remedies given by law independently of this
agreement.
Variation and waiver
28.6 A provision of this agreement or a right
created under it, may not be waived or varied
except in writing, signed by each Party to be
bound.
Indemnities
28.7 The indemnities in this agreement are
continuing obligations, independent from the
other obligations of the Parties under this
agreement and continue after this agreement
ends. It is not necessary for a Party to incur
expense or make payment before enforcing a
right of indemnity under this agreement.
Further steps
28.8 Each of the PCCW Parties agree to do anything
that any of the Telstra Parties reasonably
requests (such as obtaining consents, signing
and producing documents and getting documents
completed and signed):
(a) to bind any of the PCCW Parties and their
successors under this agreement;
(b) to give effect to the intentions of the
Parties and the objectives of this
agreement and the transactions
contemplated by it including, without
limitation, negotiating in good faith with
respect to any matters requested by any of
the Telstra Parties to this agreement, and
by the execution and delivery of documents
and other instruments; and
(c) to use its best endeavours to cause
relevant third persons to do likewise to
bind every Party intended to be bound
under this agreement.
28.9 Each of the Telstra Parties agree to do
anything that any of the Telstra Parties
reasonably requests (such as obtaining
consents, signing and producing documents and
getting documents completed and signed):
(a) to bind any of the Telstra Parties and
their successors under this agreement;
(b) to give effect to the intentions of the
Parties and the objectives of this
agreement and the transactions
contemplated by it including, without
limitation, negotiating in good faith with
respect to any matters requested by any of
the Telstra Parties to this agreement, and
by the execution and delivery of documents
and other instruments; and
68
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(c) to use its best endeavours to cause
relevant third persons to do likewise to
bind every Party intended to be bound
under this agreement.
Time of the essence
28.10 Time is of the essence in this agreement in
respect of an obligation of a Party to pay
money.
Construction
28.11 No rule of construction applies to the
disadvantage of a Party because that Party was
responsible for the preparation of, or seeks
to rely on, this agreement or any part of it.
Costs
28.12 Except as otherwise provided under this
agreement, the Parties agree to pay their own
legal and other costs and expenses in
connection with the preparation execution and
completion of this agreement and other related
documentation.
Supervening legislation
28.13 Any present or future legislation which
operates to vary the obligations of a Party in
connection with this agreement with the result
that another Party's rights, powers or
remedies are adversely affected (including, by
way of delay or postponement) is excluded
except to the extent that its exclusion is
prohibited or rendered ineffective by law.
Counterparts
28.14 This agreement may consist of a number of
copies, each signed by one or more Parties to
the agreement. If so, the signed copies are
treated as making up the one document and the
date on which the last counterpart is executed
will be the date of the agreement.
Third Party Rights
28.15 A person that is not a party to this agreement
has no rights under the Contract (Rights of
Third Parties) Act 1999 (UK) to enforce any
term or condition of this agreement.
29 Governing law
--------------------------------------------------------------------------------
Governing law
29.1 This agreement is governed by the law in force
in England.
Jurisdiction
29.2 Each Party submits to the non-exclusive
jurisdiction of the courts England and courts
of appeal from them. Each Party waives any
right it has to object to an action being
brought in those courts including, without
limitation, by claiming that the action has
been brought in an inconvenient forum or that
those courts do not have jurisdiction.
69
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Serving documents
29.3 Without preventing any other method of
service, any document in an action may be
served on a Party by being delivered or left
at that Party's address for the purposes of
clause 27 or with its Process Agent.
Process Agent
29.4 Each Party irrevocably appoint its Process
Agent as its process agent to receive any
document in an action in connection with this
agreement.
29.5 If for any reason a Process Agent of a Party
ceases to be able to act as a process agent,
that Party must promptly appoint another
person in England as its process agent.
29.6 Each Party agrees that the service of
documents on its Process Agent or any other
person appointed by it under this clause will
be sufficient service on it.
EXECUTED as an agreement
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Schedule 1 [Intentionally blank]
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71
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Schedule 2 [Intentionally blank]
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72
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Schedule 3 [Intentionally blank]
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73
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Schedule 4 [Intentionally blank]
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74
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Schedule 5 [Intentionally blank]
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75
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Schedule 6 [Intentionally blank]
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76
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Schedule 7 [Intentionally blank]
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77
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Execution page
--------------------------------------------------------------------------------
SIGNED by as an )
authorised representative of )
TELSTRA CORPORATION LIMITED in the )
presence of: )
)
........................................ )
Signature of witness )
)
........................................ )
Name of witness (block letters) )
)
........................................ )
Address of witness )
)
........................................ )
Occupation of witness )
)
SIGNED by )
as an authorised representative of )
AUSTRALIAN NETWORK COMPANY PTY LIMITED )
)
........................................ )
Signature of witness )
)
........................................ )
Name of witness (block letters) )
)
)
........................................ )
Occupation of witness )
)
78
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EXECUTION PAGE
SIGNED by ▇▇▇▇ ▇▇▇▇▇▇▇ )
as authorised representative )
for TELSTRA CORPORATION LIMITED )
in the presence of: )
)
........................................ )
Signature of witness )
)
........................................ )
Name of witness (block letters) )
)
........................................ )
Address of witness )
)
........................................ ) ...................................
Occupation of witness ) By executing this agreement the
) signatory warrants that the
) signatory is duly authorised to
) execute this agreement on behalf of
Telstra Corporation Limited
SIGNED by )
as authorised representative )
for TELSTRA HOLDINGS (BERMUDA) NO 1 )
LIMITED in the presence of: )
)
........................................ )
Signature of witness )
)
........................................ )
Name of witness (block letters) )
)
........................................ )
Address of witness )
)
........................................ ) ...................................
Occupation of witness ) By executing this agreement the
) signatory warrants that the
) signatory is duly authorised to
) execute this agreement on behalf of
Telstra Holdings (Bermuda)
No 1 Limited
79
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SIGNED by )
as authorised representative )
for TELSTRA HOLDINGS PTY LIMITED )
in the presence of: )
)
........................................ )
Signature of witness )
)
........................................ )
Name of witness (block letters) )
)
........................................ )
Address of witness )
)
........................................ ) ...................................
Occupation of witness ) By executing this agreement the
) signatory warrants that the
signatory is duly authorised to
execute this agreement on behalf of
Telstra Holdings Pty Limited
SIGNED by )
as authorised representative )
for PCCW LIMITED )
in the presence of: )
)
........................................ )
Signature of witness )
)
........................................ )
Name of witness (block letters) )
)
........................................ )
Address of witness )
)
........................................ ) ...................................
Occupation of witness ) By executing this agreement the
) signatory warrants that the
) signatory is duly authorised to
) execute this agreement on behalf of
PCCW Limited
80
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SIGNED by )
as authorised representative )
for PACIFIC CENTURY CABLE HOLDINGS )
LIMITED in the presence of: )
)
........................................ )
Signature of witness )
)
........................................ )
Name of witness (block letters) )
)
........................................ )
Address of witness )
)
........................................ ) ...................................
Occupation of witness ) By executing this agreement the
) signatory warrants that the
) signatory is duly authorised to
) execute this agreement on behalf of
Pacific Century Cable
Holdings Limited
SIGNED by )
as authorised representative for )
for REACH LTD. )
)
in the presence of: )
)
........................................ )
Signature of witness )
)
........................................ )
Name of witness (block letters) )
)
........................................ )
Address of witness )
) ...................................
........................................ ) By executing this agreement the
Occupation of witness ) signatory warrants that the
) signatory is duly authorised to
execute this agreement on behalf of
Reach Ltd.
Execution page
SIGNED by ▇▇▇▇▇ ▇▇▇▇▇▇▇ )
as an authorised representative of )
TELSTRA CORPORATION LIMITED )
in the presence of: )
)
.................................... )
Signature of witness )
)
▇▇▇▇▇▇ ▇▇▇▇ )
.................................... )
Name of witness (block letters) )
)
Melbourne )
.................................... ) .........................................
Address of witness ) By executing this agreement the signatory
) warrants that the signatory is duly
Solicitor ) authorised to execute this agreement on
.................................... ) behalf of Telstra Corporation Limited
Occupation of witness )
SIGNED by ▇▇▇▇▇ ▇▇▇▇▇▇▇ )
as authorised representative )
for TELSTRA HOLDINGS (BERMUDA) )
NO 1 LIMITED in the )
presence of: )
)
.................................... )
Signature of witness )
)
▇▇▇▇▇▇ ▇▇▇▇ )
.................................... )
Name of witness (block letters) )
)
Melbourne )
.................................... )
Address of witness )
)
Solicitor )
.................................... ) .........................................
Occupation of witness ) By executing this agreement the signatory
) warrants that the signatory is duly
) authorised to execute this agreement on
) behalf of Telstra Holdings (Bermuda) No 1
) Limited
4
SIGNED by ▇▇▇▇▇ ▇▇▇▇▇▇▇ )
as authorised representative )
for TELSTRA HOLDINGS PTY LIMITED )
in the presence of: )
)
.....................................)
Signature of witness )
)
▇▇▇▇▇▇ ▇▇▇▇ )
.....................................)
Name of witness (block letters) )
)
Melbourne )
.....................................)
Address of witness )
)
Solicitor )
.....................................) .........................................
Occupation of witness ) By executing this agreement the signatory
) warrants that the signatory is duly
) authorised to execute this agreement on
) behalf of Telstra Holdings Pty Limited
SIGNED by )
as authorised representative )
for PCCW LIMITED in the presence of:)
)
.....................................)
Signature of witness )
)
NIGEL ▇▇▇▇▇▇ ▇▇▇▇▇▇ )
.....................................)
Name of witness (block letters) )
)
▇▇▇▇▇▇▇ 2 ▇▇▇▇▇▇ )
.....................................)
Address of witness )
)
Solicitor, Hong Kong SAR )
.....................................)
Occupation of witness ) .........................................
) By executing this agreement the signatory
) warrants that the signatory is duly
) authorised to execute this agreement on
) behalf of PCCW Limited
5
SIGNED by )
as authorised representative )
for PACIFIC CENTURY CABLE HOLDINGS )
LIMITED )
in the presence of: )
)
.....................................)
Signature of witness )
)
NIGEL ▇▇▇▇▇▇ ▇▇▇▇▇▇ )
.....................................)
Name of witness (block letters) )
)
▇▇▇▇▇▇▇ 2 ▇▇▇▇▇▇▇ )
.....................................)
Address of witness )
)
Solicitor, Hong Kong SAR )
.....................................) .........................................
Occupation of witness ) By executing this agreement the signatory
) warrants that the signatory is duly
) authorised to execute this agreement on
) behalf of Pacific Century Cable Holdings
) Limited
SIGNED by )
as authorised representative for )
for REACH LTD. )
in the presence of: )
)
.....................................)
Signature of witness )
)
▇▇▇▇▇ ▇▇▇▇▇ )
.....................................)
Name of witness (block letters) )
)
▇▇▇▇▇ ▇▇, ▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇▇ )
.....................................)
Address of witness )
)
Lawyer )
.....................................) .........................................
Occupation of witness ) By executing this agreement the signatory
) warrants that the signatory is duly
) authorised to execute this agreement on
) behalf of Reach Ltd.
6
