* Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed separately with the Securities and
Exchange Commission.
AGREEMENT
dated 16 February 1998
between
TELECOM HOLDING COMPANY LIMITED
and
▇▇▇▇▇▇▇▇▇▇ COMPUTER AND COMMUNICATIONS PUBLIC COMPANY LIMITED
and
MIH LIMITED
and
INTERNATIONAL BROADCASTING CORPORATION
PUBLIC COMPANY LIMITED
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SHAREHOLDERS' AGREEMENT
RELATING TO
INTERNATIONAL BROADCASTING CORPORATION
PUBLIC COMPANY LIMITED
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Mallinicks
▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
TABLE OF CONTENTS
1. RECITALS ............................................................ 3
2. DEFINITIONS AND INTERPRETATION ...................................... 5
3. CONDITIONS .......................................................... 10
4. BUSINESS OF THE GROUP ............................................... 10
5. CORPORATE GOVERNANCE ................................................ 11
6. BUDGETS ............................................................. 20
7. ACCOUNTS ............................................................ 22
8. FINANCE ............................................................. 23
9. TRANSFER OF SHARES .................................................. 24
10. NON-COMPETE ......................................................... 28
11. DIVIDEND POLICY ..................................................... 29
12. INDEMNITY ........................................................... 30
13. SCOPE, DURATION AND TERMINATION ..................................... 31
14. CONFIDENTIALITY ..................................................... 32
15. WAIVERS ............................................................. 34
16. ASSIGNMENT .......................................................... 34
17. ENTIRE AGREEMENT .................................................... 34
18. NOTICES ............................................................. 35
19. ANNOUNCEMENTS ....................................................... 36
20. RELATIONSHIP OF THE SHAREHOLDERS .................................... 36
21. CONFLICT WITH OTHER DOCUMENTS ....................................... 36
22. GOVERNING LAW AND ARBITRATION ....................................... 37
23. COUNTERPARTS ........................................................ 39
SCHEDULE 1: FORM OF UNDERTAKING (CLAUSE 9.2.1)............................. 41
SCHEDULE 2: FORM OF UNDERTAKING (CLAUSE 9.8.1)............................. 42
2
SHAREHOLDERS' AGREEMENT
This agreement is made on 16 February 1998 between
(1) TELECOM HOLDING COMPANY LIMITED, with its registered office at Telecom
Tower, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("TH");
(2) ▇▇▇▇▇▇▇▇▇▇ COMPUTER AND COMMUNICATIONS PUBLIC COMPANY LIMITED, with its
registered office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("SHIN");
(3) MIH LIMITED, with its registered office at ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇ Street, Road Town, Tortola, British Virgin Islands ("MIH"); and
(4) INTERNATIONAL BROADCASTING CORPORATION PUBLIC COMPANY LIMITED, with its
registered office at ▇▇▇▇/▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ (the "Company").
1. RECITALS
1.1. The Company is incorporated in Thailand with registration
number Bor.Mor.Jor 444 and has entered into an agreement dated
17 April 1989 (as amended on 19 May 1994) with MCOT in terms
of which the Company is entitled to conduct subscription
television in Thailand. The shares of the Company are listed
on the SET.
1.2. At the Effective Date -
1.2.1. if TOT will have exercised its option to acquire
shares in UTV, the issued and outstanding Shares of
the Company will comprise 475,564,751 ordinary Shares
of Baht 10 each;
1.2.2. if TOT will not have exercised its option to acquire
shares in UTV, the issued and outstanding Shares of
the Company will comprise 480,782,376 ordinary Shares
of Baht 10 each;
3
1.2.3. SHIN and MIH will each own 84,176,550 of the issued
and outstanding Shares of the Company;
1.2.4. MCOT will own 3,000,000 of the issued and outstanding
Shares of the Company;
1.2.5. if TOT will have exercised its option to acquire
shares in UTV, TH will own 232,564,751 of the issued
and outstanding Shares of the Company;
1.2.6. if TOT will not have exercised its option to acquire
shares in UTV, TH will own 237,782,376 of the issued
and outstanding Shares of the Company;
1.2.7. the balance of the issued and outstanding Shares of
the Company will be owned by members of the public;
1.2.8. if TOT will have exercised its option to acquire
shares in UTV, the Company will own 222,864,600
(constituting 95.71 percent) of all the issued and
outstanding shares of UTV. The remaining issued and
outstanding shares in UTV will be owned by MCOT as to
5,000,000 (constituting 2.15 percent) and by TOT as
to 5,000,000 (constituting 2.15 percent);
1.2.9. if TOT will not have exercised its option to acquire
shares in UTV, the Company will own 227,864,600
(being 97.85 percent) of all the issued and
outstanding shares of UTV. The remaining 5,000,000
shares (constituting 2.15 percent of the total issued
and outstanding shares of UTV) will be owned by MCOT.
1.3. UTV has also entered into an agreement with MCOT dated 6 June
1994 (as subsequently amended on 7 September 1994 and 9
November 1994) in terms of which it is entitled to conduct
subscription television in Thailand.
1.4. The businesses of the Company and of UTV will be conducted
from the same registered head office premises and by the same
executive teams.
4
1.5. The purpose of this Agreement is to record the terms and
conditions regulating the relationship among TH, SHIN and MIH
as Shareholders inter se and with the Company.
2. DEFINITIONS AND INTERPRETATION
In this Agreement -
2.1. clause headings are inserted for convenience only and shall
not be taken into account in its construction;
2.2. unless the context clearly indicates a contrary intention, an
expression which denotes any one gender includes the other
genders, a natural person includes a juristic person and vice
versa, the singular includes the plural and vice versa and the
following expressions bear the meanings assigned to them below
and cognate expressions bear corresponding meanings -
"Affiliate" - in relation to any company,
any other company which
directly or indirectly, (i)
is a parent company of the
first mentioned company,
(ii) is a Subsidiary of the
first mentioned company, or
(iii) is a fellow
Subsidiary of the parent
company of the first
mentioned company;
"Agreed Proportion" - such proportion as equals,
at the relevant time, the
proportion (expressed as a
percentage) which the par
value of the Shares owned
by a Shareholder bears to
the combined total par
value of all the Shares
owned by all the
Shareholders taken as a
whole or where applicable,
the combined par value of
all the Shares of the
relevant Shareholders
taken as a whole;
"Agreement" - this agreement, the
schedules hereto and all
supplementary and amendment
agreements thereto from
time to time;
5
"Articles" - the Articles of Association
of any Group Company (as
applicable), as amended
from time to time;
"Auditors" - the auditors from time to
time of the Company, who
shall be appointed by a
general meeting of the
shareholders of the Company
and who shall comply with
all requirements, if any,
set for such auditors by
any applicable regulatory
and/or governmental
authorities;
"Board" - the board of directors of
the Company;
"Budgets" - the annual budgets for the
Group, as approved by the
Board from time to time in
accordance with this
Agreement;
"Business" the business of the Group
as set out in clause 4.1;
"Chairman" - the chairman of the Company
referred to in clause 5.16;
"Directors" - the members of the Board
from time to time elected
in accordance with this
Agreement;
"Effective Date" - the date on which Closing
(as defined in the Merger
Agreement) is completed in
accordance with clause 6 of
the Merger Agreement;
"Encumbrance" - includes, without
limitation, any pledge,
attachment, security
interest, the effect of
which is the creation of
security, and any option,
pre-emption, right of first
refusal or other such
right;
"Group" - the Company and its
Subsidiaries (including
UTV;
6
"Group Company" - a member of the Group;
"MCOT" - the Mass Communications
Organisation of Thailand or
its successor from time to
time;
"Merger Agreement" - the Merger Agreement,
bearing the same date as
this Agreement, between the
Company, TH and UTV;
"Pay-TV" - (i) the exhibition or
transmission, whether by
wire, telephone wire,
over-the-air, cable, optic
fibre, satellite, microwave
signals or any other means
of delivery now known or
hereafter developed or
discovered, of audio,
visual and/or audio visual
data, programming or
services substantially in
scrambled or encrypted
format, to a subscriber,
capable of being
unscrambled or decrypted by
individually addressable
decoders or equivalent
devices, where a fee is
payable by such subscriber
(in addition, if
applicable, to being
charged by the Person
transmitting the signal
incorporating such
programming, data or
services) for the right to
view and/or participate in
such data, programs and
services in unencrypted
format; (ii) the provision,
enabling and disabling of
decoders or equivalent
devices, the marketing and
sale of subscriptions and
the provision of
customer/subscriber support
services and/or know-how
relating thereto, and (iii)
in connection with the
above, the production,
compilation and scheduling
of such data, services,
programming, signal
distribution and other
related activities and
know-how;
7
"Permitted Transfer" - a Transfer of
Shares to a wholly owned
Subsidiary in accordance
with clause 9.2;
"Permitted Transferee" - a Person to whom Shares are
transferred in accordance
with clause 9.2;
"Person" - any individual, firm,
company, corporation,
government, State or agency
of a State or any joint
venture, partnership,
limited liability company
or other incorporated or
unincorporated body;
"SEC" - the Securities and Exchange
Commission of Thailand or
its successors from time to
time;
"SET" - the Stock Exchange of
Thailand or its successor
from time to time;
"Share" - subject to the provisions
of clause 13.1, an issued
and outstanding share in
the capital of the Company
of whatever class;
"Shareholders" - subject to the provisions
of clause 13, TH, SHIN, MIH
and their respective
Permitted Transferees and
any other Person to whom
Shares are from time to
time Transferred in
accordance with this
Agreement;
"Shareholder Loan" - any loan made by a
Shareholder or an Affiliate
of a Shareholder to the
Company;
"Subsidiary" - in relation to an
undertaking (the holding
company) any other
undertaking in which the
holding company (or persons
acting on its or their
behalf) for the time being,
directly or indirectly,
8
- holds or controls either:
(i) a majority of the
voting rights exercisable
at general meetings of the
members of that undertaking
on all, or substantially
all, matters; or
(ii) the right to appoint
or remove directors having
a majority of the voting
rights exercisable at
meetings of the board of
directors of that
undertaking on all, or
substantially all, matters;
and any undertaking which
is a Subsidiary of another
undertaking shall also be a
Subsidiary of any further
undertaking of which that
other is a Subsidiary;
"TOT" - the Telephone Organisation
of Thailand or its
successor from time to
time;
"Transfer" - in relation to any Share or
any interest in a Share,
includes (i) the sale,
transfer, lease,
assignment, grant,
renunciation, alienation,
or disposal of such Share
or of any right or interest
which a Person may have in
the Company as result of
such right or interest in
that Share; (ii) entering
into any agreement in
respect of the votes
attached to such Share;
(iii) creating or granting
any Encumbrance over or in
respect of such Share; and
(iv) any agreement (whether
or not subject to
conditions) to do or create
or grant any of the
foregoing;
"Transfer Terms" - the terms and conditions
set out in clause 9.8;
"UTV" - UTV Cable Network Public
Company Limited, with its
registered office at
Telecom Tower, ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇
▇▇▇▇▇▇▇▇;
"UTV Board" - the board of directors of
UTV.
3. CONDITIONS
3.1. This Agreement (except for the provisions referred to in
clause 3.2, which take effect on the date hereof) shall take
effect on the Effective Date.
3.2. If the Effective Date does not occur on or before 30 April
1998 (or such other date as the parties may agree on in
writing before 30 April 1998), this Agreement shall
automatically terminate on that date. In that event no party
shall subsequently have any rights or obligations under this
Agreement other than for breach of clause 14
(Confidentiality), clause 18 (Notices) and clause 22
(Governing Law and Arbitration).
4. BUSINESS OF THE GROUP
4.1. Notwithstanding anything to the contrary in any other
document, the Shareholders agree amongst each other and with
the Company that the principal objective of the Group shall be
to engage in all aspects of Pay-TV, primarily in Thailand, and
thereafter in ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇, Malaysia and Cambodia,
and if the Memorandum of Association of any Group Company does
not reflect this objective then the Shareholders shall use all
their shareholder rights to ensure that the applicable
Memorandum of Association is amended to reflect this
objective. In addition, the Group shall conduct such other
business as the Board may resolve from time to time.
4.2. The Shareholders acknowledge and agree that the Business shall
be conducted in accordance with the Memorandum of Association,
the Articles and the Budget from time to time in force and
each Shareholder shall use its best endeavours to ensure that
the Directors nominated by it vote in such manner as to ensure
that -
4.2.1. the Group operates in the most profitable manner
possible;
10
4.2.2. no Group Company carries on any business other than
the business set out or specified in the Budget from
time to time in force;
4.2.3. each Group Company complies with all its obligations
under all agreements to which it is expressed to be a
party and complies with the restrictions imposed upon
it under its constitutional documents;
4.2.4. each Group Company obtains and maintains all
authorisations necessary or desirable to carry on its
business;
4.2.5. each Group Company carries on its business on sound
commercial principles; and
4.2.6. the Group Companies carry on any business with
Shareholders and outside parties on arms' length
terms.
4.3. Notwithstanding anything to the contrary herein or in the
Articles, in relation to any resolution proposed to the board
of directors of any Group Company in terms whereof such Group
Company -
4.3.1. enters into, amends, varies, terminates, cancels or
determines the interpretation of any contract with
any Shareholder, or any director or officer of a
Shareholder or any Affiliate of a Shareholder (a
"Related Party"); or
4.3.2 takes, maintains or terminates any legal or
arbitration proceedings against a Related Party,
the Shareholder concerned shall use its best endeavours to
ensure that the Directors nominated by it pursuant to clause
5.4 abstain from voting and from participating in the
discussions on such resolution.
5. CORPORATE GOVERNANCE
5.1. The first Board shall comprise 14 members.
5.2. For as long as it is a shareholder in the Company and for so
long as it is legally
11
entitled, whether pursuant to a contractual right or
otherwise, to be represented on the Board, MCOT shall be
entitled to nominate such number of Directors (not exceeding
two) as the Shareholders, after consultation with MCOT, may
determine from time to time.
5.3. For so long as the Company is required in terms of any
applicable rule of the SET and/or SEC to have independent
Directors, the general meeting of shareholders of the Company
shall elect, in accordance with the provisions of clause 5.13
below, two such Directors on to the Board. A Director shall be
deemed to be independent if he qualifies as such in terms of
any applicable SEC and SET rules and regulations in force from
time to time.
5.4. Whilst a Shareholder is the registered holder of Shares
representing in aggregate -
5.4.1. 5% (five percent) or more but not exceeding 10% (ten
percent) of all Shares it shall be entitled to
nominate one person for election as a Director;
5.4.2. more than 10% (ten percent), but not more than 20%
(twenty percent) of all Shares, it shall be entitled
to nominate two persons for election as Directors;
5.4.3. more than 20% (twenty percent), but not more than 30%
(thirty percent) of all Shares, it shall be entitled
to nominate three persons for election as Directors;
5.4.4. more than 30% (thirty percent), but not more than 40%
(forty percent) of all Shares, it shall be entitled
to nominate four persons for election as Directors;
5.4.5. more than 40% (forty percent), but not more than 50%
(fifty percent) of all Shares, it shall be entitled
to nominate five persons for election as Directors;
5.4.6. more than 50% (fifty percent) of all Shares, it shall
be entitled to nominate six persons for election as
Directors.
5.5. Each Shareholder shall be entitled from time to time, by
notice in writing to the other Shareholders, to remove any of
the persons nominated by it for election as Directors and to
nominate a replacement to any nominee designated by it who
ceases or is
12
unable to serve on the Board for any reason.
5.6. Each Shareholder undertakes to the others to exercise all
voting rights exercisable by it as a holder of Shares, whether
at any annual or extraordinary shareholders' meeting or at a
Board meeting, to ensure that the persons nominated (including
all replacements) from time to time by each of the
Shareholders as Directors are duly elected as such and that
such Directors are duly appointed as Authorised Directors of
the Company.
5.7. If any Shareholder notifies the other Shareholders in writing
of its desire to remove any Director previously nominated by
it pursuant to clause 5.4 and such Director does not
voluntarily submit his resignation within 4 (four) days after
the date upon which such notice is served by the Shareholder
in question, each of the Shareholders shall exercise all
shareholder rights to ensure that the Board shall, within 14
(fourteen) days after the date on which the relevant
Shareholder served notice as aforesaid, convene a meeting of
the Shareholders to be held as soon as is legally possible
and, at such meeting, each Shareholder shall exercise all
shareholder rights so as to procure the removal of such
Director from the Board. In addition -
5.7.1. during the 14 (fourteen) or more day period following
such notice, the Shareholders shall use their best
endeavours to ensure that no action is taken by the
Board until such Director is removed, other than by a
unanimous vote of the Directors appointed pursuant to
clause 5.4, (excepting only the soon-to-be-removed
Director);
5.7.2. the Shareholders agree to refrain from exercising any
shareholder or other rights to procure the removal
from the Board of any Director without the consent of
the Shareholder which nominated such Director,
provided, however, that any Director may be removed
without such consent if such Director is placed under
guardianship, becomes bankrupt or subject to an order
prohibiting him from serving as a director of the
Company or is convicted of a serious criminal
offence. No such removal (under the provisions set
out above) of a Director nominated pursuant to clause
5.4 shall affect the rights of any Shareholder to
designate immediately a different individual pursuant
to such clause. A Shareholder which, pursuant to the
provisions of clause 5.4, has lost its right to
nominate one or more persons
13
for election as Directors (because the number of
Shares held by such Shareholder has fallen below the
threshold in question) shall (if required in order to
procure the removal of the Director in question),
immediately on the occurrence of such loss, be deemed
to have requested the Chairman to convene a
shareholders' meeting as aforesaid to remove from the
Board such Director nominated by such Shareholder.
5.8. A quorum at meetings of the Board shall be 75% (seventy five
percent) of the Directors, which 75% (seventy five percent)
shall comprise at least one Director nominated by each
Shareholder which, pursuant to the provisions of clause 5.4,
is entitled to nominate more than one Director. Should a
quorum not be present within 30 (thirty) minutes after the
time appointed for the commencement of any meeting of the
Board, that meeting shall stand adjourned for 72 (seventy two)
hours, at the same time and place. The adjourned meeting may
only deal with the matters which were on the agenda of the
meeting which was adjourned. Where a meeting has been
adjourned as aforesaid the Chairman shall use his best
endeavours to inform, in the most reasonably expeditious
manner, each of the Directors of the time, date and place to
which the meeting has been adjourned. If at any adjourned
meeting, a quorum is not present within 30 (thirty) minutes
after the time appointed for the commencement of such meeting,
then the Directors present shall constitute a quorum.
5.9. Meetings of the Board shall be held in Bangkok (or such other
place as all Board members may agree on from time to time) and
at such times as the Board shall determine, provided that,
unless otherwise agreed between the Shareholders, a meeting of
the Board shall be held at least once every month. Not less
than 14 (fourteen) days notice (or such other period of notice
as may be agreed from time to time by at least a majority of
the Directors) of each meeting of the Board specifying the
date, time and place of the meeting and the business to be
transacted thereat shall be given to all Directors by the
Chairman. In addition, the Board shall also meet within 14
(fourteen) days after receipt by the Company and all Directors
of a written request to this effect from any two or more
Directors. The written request shall set out such information
(referred to above) as the Chairman would have been obliged to
provide if he had called the meeting. If, notwithstanding the
above provisions, a Director fails to receive full and proper
notice of a meeting, but nevertheless is present at such
meeting, then such Director shall be deemed to have
14
waived the notice requirements and shall thus not be entitled
to reply on any failure to comply with the provisions set out
above.
5.10. The Board shall establish an executive committee ("Executive
Committee") for the Group, consisting of the four executives
of the Group referred to in clauses 5.17, 5.18 and 5.19 and
one representative from each Shareholder which is the
registered holder of Shares representing more than 10% (ten
percent) of all Shares and two representatives from each
Shareholder which is the registered holder of Shares
representing more than 20% (twenty percent) of all Shares. The
Executive Committee shall report to the Board. The Board may
delegate such functions to the Executive Committee as it
resolves from time to time. The Board shall, from time to
time, stipulate the operating procedures and voting majorities
required for resolutions of decisions of the Executive
Committee, provided that such majorities shall be consistent
with the balance between the Shareholders and between their
Board representatives established by the provisions of clauses
5.12 and 5.13. During the first year after the Effective Date,
the Executive Committee shall meet weekly. Thereafter, the
Executive Committee shall meet at such times as the Board may
determine from time to time.
5.11. Notwithstanding anything to the contrary herein contained, but
subject to the following provisions being contained in the
Articles of the Company and such Articles being registered
with the appropriate authorities in Thailand, any resolution
signed by all the Directors shall be valid and effective as if
it had been passed at a meeting of the Board. Any such
resolution may consist of several counterparts, each of which
may be signed by 1 (one) or more Directors and shall be deemed
to have been passed on the date on which it was signed by the
last Director who signed it (unless a statement to the
contrary is made in that resolution).
5.12. Subject to the provisions of clause 5.11, all resolutions or
decisions of the Board shall require the affirmative vote of a
majority of the Directors present and voting at a Board
meeting, which majority shall include at least 75% (seventy
five percent) of the number of Directors nominated by the
Shareholders pursuant to clause 5.4 (but excluding the
Director(s) who, pursuant to any provision of this Agreement
or any other applicable law, rule or regulation, is(are)
obliged to abstain from voting on the resolution or decision
in question and excluding the Director(s) in respect of whom
15
the Shareholder which nominated him(them) for election
undertook in terms of this Agreement to use their best
endeavours to procure the abstention of such Director(s) from
voting). The Chairman shall not under any circumstances have
an additional or casting vote.
5.13. All resolutions or decisions of the shareholders of the
Company shall require the affirmative vote of shareholders of
the Company representing a majority of the votes then
exercisable by holders of all Shares carrying voting rights
who are present and voting at a meeting of shareholders of the
Company, which majority shall include Shareholders holding
Shares carrying voting rights representing at least 75%
(seventy five percent) of all Shares carrying voting rights
then held by Shareholders (but excluding the Shares of
Shareholders which pursuant to any provision in this Agreement
or any other applicable law, rule or regulation are obliged to
abstain from voting on the resolution or decision in
question).
5.14. The Shareholders shall procure that the Chairman ensures the
distribution of the agenda of any meeting of the Board or any
shareholders' meeting in advance of the meeting, and shall
call, by not less than 5 (five) days notice to the
Shareholders, a meeting (or such other form of consultation as
the Shareholders may agree) of the Directors nominated by the
Shareholders, to take place not less than 3 (three) business
days before the relevant meeting and determine the way in
which the representatives of the Shareholders, or the
Shareholders and their respective Affiliates, will vote at the
relevant Board or shareholders' meeting. If the Chairman for
any reason whatever fails to carry out any of his duties as
set out above, any two or more Directors may do so instead.
5.15. The remuneration of the Directors shall be determined by the
Shareholders, while any compensation payable to executives of
the Company, in addition to any remuneration which such
executive may receive by reason of being a Director, shall be
determined by the Board.
5.16. Whilst SHIN is the registered holder of Shares representing in
aggregate more than 10% (ten percent) or more of all Shares,
it shall be entitled -
5.16.1. to nominate one of the Directors nominated by it for
election as Chairman; and
16
5.16.2. to require the removal and replacement of such person
as Chairman.
Each Shareholder shall use its best endeavours to ensure that
the Directors nominated by it vote in such manner as to give
effect to the provisions set out above.
5.17. Whilst the Shareholding percentage of TH is larger than or
equal to the aggregate Shareholding percentage constituted by
the Shares held by SHIN and MIH together, or smaller by not
more than 5 percentage points, TH shall be entitled to
nominate (and to require the removal of) the Chief Executive
Officer from time to time of the Group ("CEO") and whilst it
is the registered holder of Shares representing more than
10%(ten percent) of all Shares, TH shall be entitled to
nominate (and require the removal of) the President from time
to time of the Group ("the President").
5.18. The Shareholders which each hold more than 10% (ten percent)
of all Shares shall be entitled, acting jointly and by
unanimous vote, to nominate the Chief Financial Officer from
time to time of the Group ("CFO").
5.19. Whilst MIH is the registered holder of Shares representing in
aggregate more than 10% (ten percent) of all Shares, MIH shall
be entitled to nominate (and to require the removal of) the
Chief Operating Officer from time to time of the Group
("COO").
5.20. If, at any time after a person has been appointed to one of
the positions referred to in clauses 5.16, 5.17, 5.18 or 5.19,
any * other than the Shareholder which nominated the person in
question) in the case of clauses 5.16, 5.17 or 5.19 or any *
in the case of clause 5.18, and/or any
*
17
5.21. *
Each Shareholder agrees that all losses,
claims, damages or liabilities (or actions in respect of) to
which the Company and/or such Shareholders, as the case may
be, may be subject, shall, insofar as such losses, claims,
damages or liabilities arise out of or are based upon the
removal in accordance with clauses 5.18 and *, of the Chairman
or any executive, as the case may be, be borne and paid for by
the Company.
5.22. The CEO -
5.22.1. shall be the top executive in charge of the
management and operations of the Business and affairs
of the Group and shall, subject to the provisions of
this Agreement, have authority to -
5.22.1.1. deal with the employees of the Group,
including with respect to delegation of
duties, promotions, transfers,
terminations and the fixing of
remuneration, subject to any directives
of the Board, if any, in this regard;
5.22.1.2. execute the implementation by the Group
of all policies and directives laid down
by the Board; and
18
5.22.1.3. conduct the Business in accordance with
the Budget from time to time in force.
5.22.2. shall, unless the Board decides to the contrary,
attend all Board meetings and report to the Board on
all activities and operations of the Group, provided
that the CFO, the President and the COO may also be
invited to attend Board meetings. The CEO, President,
CFO and COO shall not be entitled to vote at such
meetings in his/her capacity as CEO, President, CFO,
or COO (as the case may be), except that such a
person shall, of course, be entitled to attend all
Board meetings and to vote as a Director, if, in
addition to his/her position as an executive, he/she
has been appointed as a Director. For the avoidance
of doubt, TH shall have the right to nominate the
person whom it nominated as CEO and/or the President
for appointment to the Board pursuant to clause 5.4;
and
5.22.3. shall, subject to the provisions of clauses 5.17,
5.18, 5.19 and 5.23, appoint (and be entitled to
remove or terminate the employment of) the staff
members and officers of the Group as the Group;
5.22.4. shall report to the Board and the Executive
Committee, as appropriate, and comply with all
policies and directives (including such directives as
stipulate the authority of the CEO to bind a Group
Company) laid down by the Board;
The COO, CFO and President shall all report to and follow the
directives of the CEO and shall be accountable in relation to
their respective functions to the CEO. Unless the Board
decides to the contrary, the President shall be responsible
for all marketing and sales functions of the Group, the CFO
shall be responsible for all financial functions of the Group
and the COO shall be responsible for all operational
activities (other than the marketing and sales activities) of
the Group.
5.23. Subject to the provisions of clause 5.22, the day to day
management of the Group and its affairs shall be carried out
by the officers of the Company and all obligations and
responsibilities on the part of such officers shall be
performed under the direction of the Board, the Executive
Committee or the CEO (as appropriate).
5.24. The CEO shall represent the Company at all shareholders'
meetings of the Company's
19
Subsidiaries, which meetings shall appoint the auditors of
each such Subsidiary (which shall be the same as the Auditors)
and elect the board of directors of each such Subsidiary, as
determined by the Board, subject, in the case of the UTV
Board, to the provisions of clause 5.25. In the event of the
Directors failing to adopt a resolution, as contemplated in
clause 5.12, as to the composition of the board of any such
Subsidiary (other than UTV), the composition of any board of
any such Subsidiary shall be the same as the Board except that
MCOT shall have no representation thereon nor shall the
Directors elected pursuant to clause 5.3 be appointed as
directors of such Subsidiary.
5.25. The Company shall ensure, through the exercise of all voting
and other rights which it has as a shareholder in UTV, that
the UTV Board shall consist of the same persons who have been
elected as Directors pursuant to clause 5.4 and of
representatives of MCOT and, in this regard, the provisions of
clause 5.2 shall apply, mutatis mutandis, to the UTV Board. In
addition, if at any time during this Agreement, TOT is a
Shareholder in UTV, it shall be entitled to nominate such
number of directors (not exceeding two) as the Shareholders,
after consultation with TOT, may determine from time to time.
5.26. The provisions of clauses 5.5 through to 5.15, excluding 5.10,
shall apply, mutatis mutandis, to UTV.
5.27. If required in terms of any applicable law, rule or
regulation, the Company shall establish an audit committee
which shall operate in accordance with the provisions of all
applicable laws, rules and regulations.
6. BUDGETS
6.1. The initial Budget of and 3 (three) year financial and
business plan for the Group, being a budget in respect of the
1998 fiscal year (being the year commencing on 1 January 1998
and terminating on 31 December 1998) and a 3 (three) year
budget and financial and business plan shall be prepared by
the Company and submitted to the Board for its approval as
soon as possible after the Effective Date. Each Shareholder
shall use its best endeavours to ensure that, provided the
aggregate funding which in terms of such draft budget is to be
contributed by the shareholders of the Company
20
over the aforesaid 3 year period does not exceed the Peak
Funding Requirement referred to in clause 8.1, the Directors
nominated by such Shareholder shall approve the draft budget
and business plan within 30 days after its submission to the
Board.
6.2. The Shareholders shall use their best endeavours to ensure
that a budget in respect of each and every subsequent fiscal
year (which shall commence on 1 January and terminate on 31
December of each year) and, if required by the Board, a 3
(three) year financial and business plan, for the Group is
prepared by the CEO and CFO and submitted to the Directors for
their approval, not less than 30 (thirty) days prior to the
commencement of the fiscal year. If such budget is approved
(with or without amendment) by the Directors it shall
constitute the Group's Budget for the fiscal year (or shorter
period) in respect of which it was prepared. If any annual
budget shall not have been so approved by the Directors before
the start of the fiscal year of the Company to which it
relates, the Group shall, until the budget in question shall
have been so approved, continue to operate on a budget
equivalent, on a monthly basis, to the Budget then in force
with respect to the immediately preceding fiscal year with an
increase of 10% (ten percent) for all operating cost line
items specified in such Budget.
6.3. The Directors shall, at every Board meeting, review the
performance of the Group in the light of the Budget then in
force and shall be entitled, at any time during the fiscal
year in respect of which a Budget applies, to request the CFO
to prepare and submit to the Board for its approval a draft
revised budget for the Group. The approval procedure for a
draft budget set out in clause 6.2 shall apply, mutatis
mutandis, to such draft revised budget, provided that a copy
of such draft revised budget shall be supplied to each of the
Directors not less than 15 (fifteen) days prior to the Board
meeting at which such draft revised budget is to be
considered.
6.4. The Business shall be conducted in accordance with the Budget
in force from time to time. If, however, at any time the
income of the Group is materially less than anticipated in the
then current Budget, then the Board shall immediately take the
steps referred to in clause 6.3 and shall, until a revised
budget has been approved, take all reasonable steps to reduce
the expenditure of the Group.
21
ACCOUNTS
7.1 Each Group Company shall at all times keep and maintain at its
principal offices true and accurate accounting and other
financial records and other books and records of its affairs.
7.2 The annual financial and related statements of each Group
Company shall be made up at the completion of each fiscal year
in both the Thai and English languages and the Shareholders
shall ensure that within 4 months after the end of each fiscal
year -
7.2.1. there shall be prepared proper financial statements,
including consolidated balance sheets as at the end
of the Company's fiscal year and a profit and loss
account in respect of such financial year, in
accordance with the requirements of the SET and with
generally accepted accounting principles and
practices in Thailand, and that the same shall be
duly audited by the Auditors; and
7.2.2. such audited financial statements together with the
Chairman's report thereon, shall be submitted by the
Directors to the shareholders of the Company for
approval at the next meeting of such shareholders.
7.3. Without prejudice to clause 7.1, the Company shall prepare in
both the Thai and English languages and send to each of the
Directors within 21 (twenty-one) days of the end of each
calendar month consolidated unaudited management accounts (for
internal purposes) and cash flow statements of the Group for
that month in such form as may be required from time to time
by the Directors.
7.4. Without prejudice to any rights granted to directors of
companies under Thai law, each Director shall have for
himself -
7.4.1. the right to full and complete access to all
properties, assets, books and records of each Group
Company;
7.4.2. the right to examine all accounting records kept by
the Group Companies; and
22
7.4.3. the right to be supplied with all relevant
information, including operating statistics, budgets
and forecasts and such other trading and financial
information in such form as they may reasonably
require to keep each of them properly informed of the
financial and business affairs of the Group
Companies.
FINANCE
8.1. The Shareholders acknowledge and agree that the aggregate
capital expenditure, working capital and cash flow
requirements of the Group (but excluding all funds required to
repay the shareholders loans made to the UTV Business and the
IBC Business (as such terms are defined in the Merger
Agreement) between 30 September 1997 and the Effective Date)
for the first 12 months following the Effective Date shall be
Baht * unless otherwise agreed by the Shareholders (the "Peak
Funding Requirement").
8.2 If any Group Company requires any funds ("Funding") within the
Peak Funding Requirement and in terms of its then Budget to
carry out its Business -
8.2.1. each Shareholder shall, in the first place, use its
best endeavours to procure that the Funding is
financed, as far as practicable, from outside
sources, such as the financial and/or capital
markets, on terms acceptable to the Shareholders;
8.2.2. and the Company is unable, within a reasonable
period, to acquire any of the Funding in the manner
set out in clause 8.2.1, the Funding or the
unacquired portion thereof, as the case may be, shall
be funded by means of an increase in the share
capital of the Company and each Shareholder shall
(and each Shareholder shall use its best endeavours
to ensure that the Director(s) nominated by it
pursuant to clause 5.4 shall) vote in favour of all
resolutions required for such capital increase.
8.3. No shareholder shall be obliged to provide its pro rata
portion of any Funding ("Funding Contribution"). In the event
that any Shareholder does not provide its Funding Contribution
in whole or in part ("a Funding Non-Provider"), the provisions
23
of clause 8.4 shall apply in respect of such part of the
Funding as the Funding Non-Provider(s) has/have failed to
provide ("the Funding Shortfall"), but the Funding
Non-Provider shall have no obligation or liability to the
Company or otherwise in respect of the Funding Shortfall,
provided that if the funding is contributed by means of a
subscription for Shares then, to the extent that it does not
provide its Funding Contribution, its Shareholding shall be
diluted.
8.4. All Shareholders which are not Funding Non-Providers shall be
entitled to provide the Funding Shortfall in their Agreed
Proportions. If more than one Shareholder offers to provide
all of the Funding Shortfall, the Funding Shortfall shall be
so provided by each such Shareholder pro rata, as nearly as
may be, to their Agreed Proportions at the date on which the
Funding is to be provided.
8.5. Notwithstanding the other provisions of this clause 8, if any
of the Shareholders, with the prior written consent of all the
other Shareholders, issue any guarantees, indemnities,
suretyships or the like over their assets ("guarantees"), as
security for any Indebtedness of any Group Company, then
irrespective of whether such guarantees are issued by 1 (one)
or more or all of the Shareholders, or by any of them jointly,
or by any of them jointly and severally, each consenting
Shareholder hereby agrees to indemnify the others against
claims, actions, expenses, liabilities or losses which may be
suffered by the other pursuant to such guarantees, to the
extent that it is necessary to ensure that the loss shall be
shared equitably between the Shareholders in the Agreed
Proportions at the time that the loss is sustained.
8.6. The Shareholders undertake with each other to vote in favour
of (and to use their best endeavours to ensure that the
Directors appointed by them respectively vote in favour of)
all resolutions required to be passed for the issue of Shares
or the creation of Shareholders' Loans as contemplated in this
clause 8 and to do such other things as may be necessary in
order to give effect to the provisions of this clause 8.
9. TRANSFER OF SHARES
General Restriction on Transfers
9.1. The Shareholders agree and undertake that, except as may be
agreed between them pursuant to the provisions of clause 9.8,
no Transfer of any of their Shares or
24
Shareholder Loans may be made or registered (or purport to be
made or registered) at any time after the date hereof, save as
provided for in this clause 9 and subject always to compliance
with the Transfer Terms.
Permitted Transfers
9.2. A Shareholder may at any time and on any terms Transfer all
(but not part only) of its Shares to a wholly owned Subsidiary
provided that:
9.2.1. it shall be a condition precedent to any such
Transfer (and any registration thereof) that the
transferor and the transferee enter into a written
undertaking in favour of the other Shareholder(s) and
the Company in the form set out in Schedule 1; and
9.2.2. if the transferee ceases to be a wholly owned
Subsidiary of the transferor, then the transferor
shall procure that the transferee shall have
Transferred to the transferor or another wholly owned
Subsidiary of the transferor all its Shares and
Shareholder Loans prior to the date of such
cessation;
provided always that, notwithstanding such Transfer, the
transferor shall for all purposes remain primarily liable for
the due and proper performance of the transferee's obligations
hereunder.
Rights of First Refusal
9.3 Subject to the provisions of clauses 9.1 and 9.4, if at any
time a Shareholder (the "Offeror") wishes to Transfer any of
its Shares it shall, by notice in writing (the "Offer") to the
Company and to the other Shareholders (the "Offerees"), offer
to sell to the Offerees such Shares ("Sale Shares"), together
with such proportion of the Shareholder Loans made by the
Offeror and/or its Affiliates as is equal (as nearly as
practicable) to the proportion of Shares to be Transferred
("Sale Claims"), at the price and on the terms specified in
the Offer. The Offer shall specify the material terms and
conditions including, without limitation, the price at which
the Offeror is prepared to sell the Sale Shares and Sale
Claims and shall remain open for acceptance by any Offeree for
30 days from the date of the Offer (the "Offer Period"). The
price for the Sale Claims shall be the face value thereof and
the price
25
for the Sale Shares shall be that agreed upon between the
Offeror and the Offerees and failing agreement, shall be the
average weighted middle market price of the Company's Shares
quoted on the SET during the 30 trading days preceding the day
on which the Offer is made (such middle market price to be
determined by the Company's stockbrokers who shall act as
experts and not as arbitrators and whose decision shall be
final and binding on the parties).
9.4. All Offerees shall be entitled to accept an Offer in
proportion to their Agreed Proportions of Sale Shares and Sale
Claims.
9.5. Each Offeree desiring to purchase its Agreed Proportion or
more of the Sale Shares and Sale Claims shall, within the
prescribed period, give notice in writing to the Company, the
Offeror and the other Offerees accordingly, specifying the
maximum number of Sale Shares and Sale Claims it is willing to
purchase. If any Offeree does not wish to purchase any Sale
Shares and Sale Claims, the remaining Sale Shares and Sale
Claims shall be allocated to the accepting Offerees pro rata
in proportion to their Agreed Proportions, provided that
accepting Offerees shall not be required to purchase in excess
of the number of Sale Shares and Sale Claims specified in the
notice aforesaid.
9.6. Subject to compliance with the provisions of clauses 9.3, 9.4
and 9.5, if the accepting Offerees shall not have accepted an
Offer in respect of all of the Sale Shares and Sale Claims,
the Offeror shall be entitled, within 30 (thirty) SET trading
days after such non-acceptance, to sell to a bona fide third
party, but at a cash price which shall not be less than that,
and on terms and conditions which are not, taken as a whole,
more favourable to the third party purchaser than those, at
which the Offerees were entitled to purchase the Sale Shares
and the Sale Claims in terms of clause 9.3, provided that if
the Sale Shares are sold to a bona fide third party on the
SET, the Offeree shall be entitled to sell the Sale Shares
for the market price of the Company's Shares quoted on the
SET on the date of the sale, even if such price is less than
that at which such Sale Shares were offered to the Offerees.
If no such sale shall have been effected during such 30
(thirty) SET trading day period, then the Offeror shall not
be entitled to effect any Transfer of any or all of its
Shares and Shareholder Loans thereafter unless the
provisions of clauses 9.3, 9.4 and 9.5 shall again have been
complied with in respect of such Shares and Loans.
26
9.7. The Shareholders acknowledge that a proposed Transfer may
result in a mandatory offer of Shares under the SET and/or SEC
and/or any other applicable rules (the "Applicable Rules")
having to be made. The Shareholders agree that in the event of
there being any irreconcilable inconsistency between any
mandatory Applicable Rule and any provision of this clause 9
set out above, then the mandatory Applicable Rule shall apply
(but to the extend of the inconsistency only) as between the
Shareholders.
Transfer Terms
9.8 Any Transfer of Shares and/or Shareholder Loans shall be made
on the following terms:
9.8.1. unless the transferee is an existing Shareholder, any
other Shareholder may stipulate as a condition
precedent to any such Transfer (and any registration
thereof) that:
9.8.1.1. the transferee enters into a written
undertaking in favour of the Company and the
other Shareholder(s) in the form set out in
Schedule 2; and
9.8.1.2 the transferee notifies the Company and the
Shareholder(s) (other than the transferor)
of its address for service of all notices
and communications to be given or made under
this Agreement;
9.8.2. if the transferee is an existing Shareholder, the
transferee shall indemnify the transferor (in the
case of a partial Transfer, in the proportion of the
Shares so Transferred) against any claim made against
the transferor by virtue of its liability as surety
or guarantor for any Group Company's obligations;
9.8.3. if the transferor shall have sold all of its Shares,
it shall continue to be bound by clauses 10
(Non-Compete) and 14 (Confidentiality) following the
sale, but shall otherwise cease to be bound by this
Agreement (except in relation to any antecedent
breach);
9.8.4. if the transferee is an existing Shareholder, the
transferor shall sell the Sale Shares and assign the
Shareholder Loans the subject of the Transfer, free
and
27
clear of all Encumbrances, together with all rights
attaching thereto on or after the date of the
Transfer; and
9.8.5. if the transferee is an existing Shareholder, the
completion of the Transfer shall take place within 30
days after acceptance of the relevant Offer at the
registered office of the Company against delivery to
the transferee of duly executed transfer documents of
the Sale Shares and certificates therefor and
assignment of the Shareholder Loans to the
transferee.
10. NON-COMPETE
10.1. Subject to the provisions of clause 10.3, each of the
Shareholders undertakes to each other and the Group Companies
that while any Group Company carries on Business it shall not,
and shall procure that its Affiliates shall not, without the
prior written consent of the Company, either alone or in
conjunction with or on behalf of any other Person, or directly
or indirectly, do any of the following things while it or any
of its Permitted Transferees is a Shareholder and for a period
of 2 (two) years after it or its Permitted Transfers cease to
be a Shareholder -
10.1.1. carry on or be engaged or interested in any
Subscription Television Business in Thailand,
Myanmar, Laos, Malaysia, Vietnam or Cambodia (other
than as a holder of less that 5% (five percent) of
the stock of a corporation, the securities of which
are traded on a national securities exchange),
provided that if at any time it is proposed to the
Board that a Group Company should carry on or be
engaged or interested in a Subscription Television
Business in Myanmar, Laos, Malaysia, Vietnam or
Cambodia (as the case may be) and the Board fails for
any reason, to approve such proposal within 30 days
after the proposal was made, then the restriction on
Shareholders and their Affiliates not to carry on or
be engaged or interested in a Subscription Television
Business, as set out in this clause 10.1.1, shall, in
so far as it relates to the country in respect of
which the proposal was made, but not approved, lapse
and be of no further force or effect. For the purpose
of this clause 10.1.1, Subscription Television
Business means any business similar to that conducted
by UTV and IBC prior to the Effective Date (but
irrespective of the means of exhibition, distribution
or transmission of the
28
signals of the programmes, data and services of such
businesses) as well as pay-per-view services, video
on demand services, audio services and home shopping
services; or
10.1.2. solicit or entice away any employee of a Group
Company or, for a period of two years after the date
hereof, employ any existing or former employee or
officer of a Group Company, provided that a
Shareholder and/or any of its Affiliates shall be
entitled to employ any existing or former employee or
officer of a Group Company who had been seconded to a
Group Company by such Shareholder or any of its
Affiliates; or
10.1.3. use any business name, ▇▇▇▇ or style of any Group
Company which may suggest ownership thereof; or
10.1.4. assist any other Person to do any of the aforegoing
things.
10.2. It is agreed between the parties hereto that whilst the
restrictions set out in clause 10.1 are considered fair and
reasonable, if it should be found that any of the restrictions
are void or unenforceable and if by deleting part of the
wording or substituting a different geographical limit or a
more restricted range of activities for the geographical
limits or ranges of activities set out in clause 10.1 and it
would not be void then there shall be substituted such next
less extensive limit and/or activity or such deletions shall
be made as shall render clause 10.1 valid and enforceable.
10.3 The provisions of clause 10.1.1 shall not apply to Asia
Multimedia Company Limited and its Subsidiaries.
11. DIVIDEND POLICY
The Shareholders shall procure that the Company shall declare and pay
dividends equal to * of the distributable profits of the Company in
each of its fiscal years, which declaration and payment, if any, shall
be made within 150 days after the end of each fiscal year. The Company
may also declare and pay such interim dividends as the Shareholders may
agree to from time to time.
29
12. INDEMNITY
12.1. The Shareholders acknowledge that -
12.1.1. * may have certain claims against UTV and/or Cineplex
Company Limited ("Cineplex") arising from the
agreement between *
12.1.2. * has claimed Baht * in compensation from ▇▇▇▇▇▇▇▇▇▇
Satellite Public Company Limited ("SHIN"), Satellite
Service Company Limited ("SSV"), a Subsidiary of the
Company, and from the Company, arising from the
alleged *
12.1.3. litigation is pending (i) in the court of appeal of
the state of Washington, United States of America,
between CTVC and Dr ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, SHIN and the
Company, and (ii) in the civil court of Thailand
between ▇▇ ▇▇▇▇▇▇▇ Limonson and the Company (as well
as 17 other parties);
12.2. * agrees to pay and to indemnify fully, hold harmless and
defend * from and against any and all claims, and/or
liabilities, damages, penalties, judgements, assessments,
losses, costs and expenses (including, but not limited to,
reasonable lawyers' fees) (collectively "Damages") incurred by
* arising out of, relating to or based upon the agreement
12.3. Each of * agrees, jointly and severably, to pay and to
indemnify fully, hold harmless and defend * from and against
any and all Damages incurred by * arising out of, relating to
or based upon the claims of *
12.4. * agrees to pay and to indemnify fully, hold harmless and
defend all * against any and all Damages incurred by any * and
* arising out of, relating to or based upon the claims of *
30
12.5. The Shareholders which give(s) the indemnity referred to in
clause 12.2, 12.3 or 12.4 (as the case may be) (the
"Indemnifying Shareholder") shall pay to the Person in whose
favour the indemnity is given (the "Indemnified Person") the
amount of any and all Damages on the date on which such
Damages are incurred by the Indemnified Person (in the case of
loss or damages) and on the date on which the Damages are
discharged by the Indemnified Person (in the case of claims,
liabilities, penalties, judgements, costs and expenses).
12.6. If, pursuant to the litigation instituted by * and *
(collectively, the "Claimants") as referred to in clause * any
of the Claimants become legally entitled to enforce a
judgement of a competent court against any Group Company,
which enforcement would result in a material diminution in the
value of * then Shareholding in the Company and after full
exhaustion by * of all remedies which it may have in terms of
the indemnity granted to it in clause 12.4, such diminution is
not remedied, then * shall be entitled to request the other
Shareholders that the Merger Agreement as well as the
Ancillary Agreements referred to therein, be * as may be
appropriate. In the event of such request, the Shareholders
shall meet in order to discuss and investigate mechanisms for
such * and for restitution of all shares, businesses, assets,
liabilities, employees and monies which were transferred
pursuant to those Agreements. If the Shareholders agree on
such mechanisms, then the Shareholders shall take such steps
in accordance with the agreed mechanisms in order to
implement, to the extent practicable, the proposed
restitution.
13. SCOPE, DURATION AND TERMINATION
13.1. The parties acknowledge that notwithstanding the fact that the
term "Shares" comprises all the issued and outstanding shares,
of whatever class, of the Company, the provisions of this
Agreement shall apply to Shareholders only in respect of their
holdings of the following pool of Shares: (i) their Shares as
referred to in clauses 1.2.1 to 1.2.6, (ii) all further Shares
which a Shareholder may acquire from another Shareholder
pursuant to the provisions of clause 9, and (iii) to all other
Shares which a Shareholder may acquire on account of its
holding of the Shares referred to in
31
paragraphs (i) and (ii) above pursuant to a rights and/or
a capitalisation issue or a distribution in lieu of cash
dividends by the Company. The provisions of this Agreement
shall not apply to a Shareholder in respect of any Shares
acquired (before or after the date of this Agreement) by it on
the SET, and such Shares shall not be taken into account in
relation to or be subject to any of the provisions of this
Agreement.
13.2. Except as otherwise provided herein, this Agreement shall
continue in full force and effect without time limit until the
Shareholders agree in writing to terminate this Agreement.
Notwithstanding the foregoing, this Agreement shall cease to
have effect as regards any Shareholder who ceases to be the
registered holder of at least 5% (five percent) of all the
Shares save that such Shareholder shall continue to be bound
by the obligations (but shall not be entitled to the rights)
of Shareholders under clauses 9.1 to 9.3, 9.6, 9.7 and 9.8 and
save for any provisions hereof which expressly provide that
they shall continue regardless of the holding of any Shares by
any party hereto and for any provisions which are expressed to
continue in force thereafter. Any Person who ceases to hold
the aforesaid percentage of Shares shall, subject to the
aforegoing qualifications, upon such cessation, cease to be a
Shareholder hereunder.
14. CONFIDENTIALITY
14.1. Each party undertakes with the others that it shall use (and
shall procure that each of its Affiliates shall use) all
reasonable endeavours to keep confidential (and to ensure that
its officers, employees, agents and professional and other
advisers keep confidential) any information:
14.1.1. which it may have or acquire (whether before or after
the date of this Agreement) in relation to the
customers, business, assets or affairs of any Group
Company;
14.1.2. which, in consequence of the negotiations relating to
this Agreement or being a shareholder in the Company
or having appointees on the Board or the exercise of
its rights or performance of its obligations under
this Agreement, it may have or acquire (whether
before or after the date of this Agreement) in
relation to the customers, business, assets or
affairs of any of the other parties
32
or their respective Affiliates;
14.1.3. which relates to the contents of this Agreement (or
any agreement or arrangement entered into pursuant to
this Agreement).
No party shall use (and shall ensure that none of its
Affiliates uses) for its own business purposes or disclose to
any third party any such information ("Confidential
Information") without the prior written consent of the other
parties.
14.2. The obligation of confidentiality under clause 14.1 shall not
apply to:
14.2.1. the disclosure on a "need to know" basis to a company
which is another member of the relevant party's group
where such disclosure is for a purpose reasonably
incidental to this Agreement;
14.2.2. information which is independently developed by the
relevant party or acquired from a third party to the
extent that it is acquired with the right to disclose
the same;
14.2.3. the disclosure of information to the extent required
to be disclosed by law, any stock exchange regulation
or any binding judgment, order or requirement of any
court or other competent authority;
14.2.4. the disclosure of information to any tax authority to
the extent reasonably required for the purposes of
the tax affairs of the party concerned or any member
of its group;
14.2.5. the disclosure in confidence to a party's
professional advisers of information reasonably
required to be disclosed for a purpose reasonably
incidental to this Agreement;
14.2.6. information which becomes within the public domain
(otherwise than as a result of a breach of this
clause 14); or
14.2.7. any announcement made in accordance with the terms of
this Agreement.
33
14.3. The provisions of this clause 14 shall survive any termination
of this Agreement and shall continue to bind a party even if
it ceases to be a Shareholder hereunder pursuant to the
provisions of clause 13.
15. WAIVERS
15.1. No delay in exercising or failure to exercise any right or
remedy under this Agreement shall operate as a waiver thereof
not shall any single or partial exercise of any right or
remedy preclude either the further exercise thereof or the
exercise of any other right or remedy. The rights and
remedies provided by this Agreement are cumulative and do
not exclude any rights, powers or remedies provided by law,
at equity or otherwise.
15.2. In the event that any party shall expressly waive any breach,
default or omission hereunder, without the prior written
consent of the other Shareholders, no such waiver shall apply
to, or operate as, a waiver of similar breaches, defaults or
omissions or be deemed to be a waiver of any other breach,
default or omission hereunder.
16. ASSIGNMENT
No party hereto shall be entitled to transfer this Agreement or any of
the rights and obligations hereunder without the prior written consent
of the other parties, except to a transferee of Shares in accordance
with this Agreement.
17. ENTIRE AGREEMENT
17.1. This Agreement constitutes the entire agreement between the
parties and supersedes all prior agreements between the
parties or any of them concerning the subject matter hereof
and each of them confirms that there is no other agreement
between any two of the Shareholders which affects their
relationship as Shareholders. No amendment, change or
additions hereto shall be effective or binding on any party
unless reduced to writing and executed by all the parties.
17.2. Each of the parties acknowledges that in entering into this
Agreement it is not relying on any representation or other
statement which is not set out in this Agreement or the
34
other documents referred to herein.
17.3. This Agreement shall be binding upon and enure to the benefit
of the parties hereto and their respective successors and
permitted assigns. Subject to the immediately preceding
sentence, this Agreement shall not run to the benefit of or be
enforceable by any Person other than a party to this Agreement
and its successors and permitted assigns.
18. NOTICES
18.1. All notices and communications under this Agreement shall be
given in writing and shall be delivered to the relevant party
or sent by registered air mail or facsimile to the address of
that party or that party's facsimile number specified in
clause 18.2. Unless otherwise specified herein, each notice or
other communication shall be deemed effective (i) on the date
received, if personally delivered, (ii) 8 (eight) business
days after being sent, if sent by registered air mail, or
(iii) 1 (one) business day after being sent, if sent by
telecopier with confirmation of transmission.
18.2. Notices and communications shall be addressed as follows:
if to ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attn: Dr Vallobh Vimolvanich
Fax No: ▇▇▇▇ ▇▇▇ ▇▇▇▇
if to MIH ▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attn: Cobus Stofberg/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax No: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
MIH Asia, Admiralty Centre. Tower 2, 14th
Floor Office, 1406-07, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇
35
Attn: Ha1ns Hawinkels
Fax No: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
if to SHIN - ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇-▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attn: Mr Boonklee Plangsiri
Fax No: ▇▇▇▇ ▇▇▇ ▇▇▇▇
if to the Company - ▇▇▇▇/▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attn: The Chief Executive Officer
Fax No: ▇▇▇▇ ▇▇▇ ▇▇▇▇
or such other address of a party, person and/or fax number as
that party shall have notified in writing to all other parties
in accordance with clause 18.1.
18.3. All notices and communications shall be given and made in the
English language.
19. ANNOUNCEMENTS
No announcement or press release concerning this Agreement or the
transactions contemplated hereby shall be made by any party without the
prior written approval of the others, such approval not to be
unreasonably withheld or delayed.
20. RELATIONSHIP OF THE SHAREHOLDERS
It is expressly agreed that the relationship of the Shareholders shall
be that of joint venturers and not that of partners. Accordingly, the
Business shall be conducted as the business of the Group Companies and
no Shareholder shall represent to any person that such Shareholder is
authorised to act on behalf of any of the other Shareholder or that any
partnership, agency, employment or joint liability exists between the
Shareholders in respect of any person who is not a party to this
Agreement.
21. CONFLICT WITH OTHER DOCUMENTS
In the event of any conflict between the provisions of this Agreement
and the provisions of the Articles then, subject to the provisions of
the law of Thailand, the provisions of this
36
Agreement shall prevail as between the Shareholders and the
Shareholders shall exercise all voting and other rights and powers
legally available to them (whether as Shareholders or otherwise) to
give effect to the provisions of this Agreement. If there is an
irreconcilable conflict between a provision of this Agreement and a
mandatory provision of the law of Thailand, the parties shall use best
efforts to agree on an alternative mechanism or provision which is as
close as reasonably possible to the provisions of this Agreement and
the conflicting provision contained in this Agreement shall be invalid
(but only to the extent necessary), provided that such invalidity shall
not affect the other provisions of this Agreement.
22. GOVERNING LAW AND ARBITRATION
22.1. This Agreement shall be governed by and construed in
accordance with the law of Thailand.
22.2. If any dispute arises at any time between any of the parties
in connection with this Agreement including, without
limitation, the formation or existence of, the implementation
of or the interpretation or application of, the parties'
respective rights and obligations in terms of or arising out
of this Agreement or its breach or termination or the
performance or non-performance of any party's obligations
hereunder or which relates in any way to any matter affecting
the interests of the parties in terms of this Agreement, and
the parties are unable to resolve their dispute, any party may
refer the matter in dispute, in the first instance, to the
respective chief executive officers of the parties for
resolution.
22.3. If after having been referred under clause 22.2, the matter in
dispute shall not have been resolved within 21 (twenty one)
days of the matter having been so referred, any of the parties
may request by notice in writing to the other parties that an
attempt be made to resolve the dispute by way of mediation by
a mediator agreed to between the parties. If the parties are
unable to agree on a mediator within 21 (twenty one) days of
receipt by the other parties of the request for mediation, the
mediation shall not take place. If the mediation occurs, the
following procedures shall be adhered to -
22.3.1. 1 (one) representative of each party shall be
entitled to attend the mediation and no party shall
be entitled to any other representation;
37
22.3.2. the mediator shall in his absolute discretion
determine the nature and form of the mediation with
the sole aim of resolving the dispute by way of
negotiation as soon as possible;
22.3.3. the decisions of the mediator shall not be binding on
the parties;
22.3.4. the cost of the mediation as determined by the
mediator shall be borne by the parties in equal
shares.
22.4. If mediation does not take place because the parties cannot
agree on a mediator or, if, after mediation pursuant to clause
22.3, the dispute shall not have been resolved or the
mediation agreement shall not have been implemented within the
time agreed to or, if no time had been agreed to, within a
reasonable time after completion of the mediation, any party
may refer the matter in dispute for determination by final
arbitration in Bangkok in accordance with the Rules of the
Arbitration Institute of the Ministry of Justice of Thailand
in force at the date of the request for arbitration ("Rules"),
which Rules are deemed to be incorporated by reference into
this clause), by 3 (three) arbitrators (unless the parties
agree in writing to have a single arbitrator only), one of
whom shall be appointed by the party referring the matter to
arbitration, a further one of whom shall be appointed by the
opposing party and the third appointed by the 2 (two) so
chosen. In the event of either the referring party or the
opposing party failing to appoint an arbitrator within 30 days
after the formal commencement of the arbitration proceedings
and/or failing agreement between the 2 (two) arbitrators
within 14 (fourteen) days of their appointment, upon the
appointment of a third arbitrator, such arbitrator or
arbitrators shall be appointed by the relevant appointing
authority under the Rules on the written request of any of the
relevant parties. The arbitrators shall establish the
procedural rules applicable to the proceedings. The
arbitration shall be conducted in Thai and also, if so
requested by a party to the arbitration proceedings, in the
English language. The arbitrators, if so required by any of
the parties, shall order the parties to make discovery of all
documents relevant to the issues in the arbitration. Subject
to any applicable law, any award of such arbitration shall be
non-appealable, be finally binding upon the parties and may be
entered into and enforced by any court having jurisdiction.
The fees, costs and expenses of any arbitration in terms of
this clause 22 shall be payable in such proportions as the
arbitrators may determine or, in the absence of such
38
determination, shall be payable in accordance with the Rules.
22.5. This clause shall not preclude any party from obtaining
interim relief on an urgent basis from a court of competent
jurisdiction pending any decision of the arbitrator.
22.6. The provisions of this clause -
22.6.1. constitute an irrevocable consent by the parties to
any proceedings in terms hereof and no party shall be
entitled to withdraw therefrom or claim at any such
proceedings that it is not bound by such provisions;
22.6.2. are severable from the rest of this Agreement and
shall remain in effect despite the termination of or
invalidity for any reason of this Agreement.
23. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
parties on separate counterparts, each of which shall constitute an
original, but all the counterparts shall together constitute but one
and the same instrument.
SIGNED BY ) /s/ VEERAVAT KANCHANADUE
)
)
)
for and on behalf of ) /s/ VALLOBH VIMOLVANICH
TELECOM HOLDING COMPANY LIMITED )
SIGNED BY ) /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
)
)
)
for and on behalf of )
MIH LIMITED )
SIGNED BY ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
)
)
)
for and on behalf of ) /s/ BOONKLEE PLANGSIRI
▇▇▇▇▇▇▇▇▇▇ COMPUTER AND COMMUNICATIONS )
PUBLIC COMPANY LIMITED )
39
SIGNED BY ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
)
)
)
for and on behalf of ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
INTERNATIONAL BROADCASTING CORPORATION )
PUBLIC COMPANY LIMITED )
40
SCHEDULE 1: FORM OF UNDERTAKING (Clause 9.2.1)
To: Telecom Holding Limited
▇▇▇▇▇▇▇▇▇▇ Computer and Communications Public Company Limited
MIH Limited
International Broadcasting Corporation Public Company Limited
From: [insert name of permitted transferee] (the "Covenantor")
Date: [insert date]
Dear Sirs
SHAREHOLDERS AGREEMENT RELATING TO INTERNATIONAL BROADCASTING
CORPORATION PLC (the "Agreement")
1 It is recorded that the Covenantor is a Permitted Transferee (as
defined in the Agreement) of [insert name of transferor] and that
[insert name of transferor] wishes to Transfer all of its Shares to the
Covenantor pursuant to clause 9.2 of the Agreement.
2 The Covenantor hereby confirms that it has been supplied with a copy of
the Agreement and hereby undertakes to each of the Parties to the
Agreement, that it shall observe, perform and be bound by the terms and
conditions of the Agreement and all documents expressed to be
supplementary or ancillary thereto as if references therein to [insert
name of the transferor] were references also to the Covenantor.
3 Notwithstanding anything contained herein or the transfer of [the
transferor's] Shares to the Covenantor, nothing in this Form of
Undertaking shall in any way release, discharge or diminish the
liability of [the transferor] for the due and prompt performance of its
(or the Covenantor's) obligations under the Agreement or any document
expressed to be supplemental or ancillary thereto.
4 The Covenantor confirms that its initial details for the purposes of
clause 18 of the Agreement are as follows: [insert name, address and
fax number]
Yours faithfully,
-----------------------
For and on behalf of [insert name of Permitted Transferee]
41
SCHEDULE 1: FORM OF UNDERTAKING (Clause 9.8.1)
To: Telecom Holding Limited
▇▇▇▇▇▇▇▇▇▇ Computer and Communications Public Company Limited
MIH Limited
International Broadcasting Corporation Public Company Limited
From: [insert name of proposed transferee] (the "Covenantor")
Date: [insert date]
Dear Sirs
SHAREHOLDERS AGREEMENT RELATING TO INTERNATIONAL BROADCASTING
CORPORATION PLC (the "Agreement")
1 It is recorded that [insert name of transferor] wishes to Transfer
Shares to the Covenantor pursuant to clause 9 of the Agreement.
2 The Covenantor hereby confirms that it has been supplied with a copy of
the Agreement and hereby undertakes to each of the Parties to the
Agreement, that, following the Transfer of the Shares referred to in 1
above, it shall observe, perform and be bound by the terms and
conditions of the Agreement and all documents expressed to be
supplementary or ancillary thereto as a Shareholder.
3 The Covenantor confirms that its initial details for the purposes of
clause 18 of the Agreement are as follows:
[insert name, address and fax number]
Yours faithfully
--------------------------
For and on behalf of [insert name of proposed transferee]
42
AGREEMENT
Dated 20th May 1998
between
▇▇▇▇▇▇▇▇▇▇ COMPUTER AND COMMUNICATIONS
PUBLIC COMPANY LIMITED
and
TELECOM HOLDING COMPANY LIMITED
and
MIH LIMITED
and
INTERNATIONAL BROADCASTING CORPORATION
PUBLIC COMPANY LIMITED
SUPPLEMENTARY SHAREHOLDERS' AGREEMENT
Mallinicks
▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
SUPPLEMENTARY SHAREHOLDERS' AGREEMENT DATED 20TH MAY 1998
BETWEEN
(1) ▇▇▇▇▇▇▇▇▇▇ COMPUTER AND COMMUNICATIONS PUBLIC COMPANY LIMITED,
with its registered office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇-▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("SHIN");
(2) TELECOM HOLDING COMPANY LIMITED, with its registered office at
Telecom Tower, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ("TH");
(3) MIH LIMITED, with its registered office at 3rd Floor, Abbot
Building, Main Street, Road Town, Tortola, British Virgin
Islands ("MIH"); and
(4) INTERNATIONAL BROADCASTING CORPORATION PUBLIC COMPANY LIMITED,
with its registered office at ▇▇▇▇/▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "IBC" or "the Company").
1. RECITALS
1.1. IBC requires additional funding in order to finance its business
operations and MIH has agreed to provide such funding in the
form of equity finance by subscribing for an additional sixty
million shares in IBC in accordance with the terms of the
Subscription Agreement (defined below), which shares shall fall
within the ambit of the Shareholders' Agreement (defined below).
1.2. Completion of the Subscription Agreement, upon which date MIH
will provide the equity funding to IBC, cannot be achieved
before 12 June 1998. Inasmuch as IBC has an immediate
requirement for funding, MIH has agreed to make such funding
available to IBC by way of a short term loan in accordance with
the terms of the Loan Agreement (defined below), on the basis
that the loan shall be repaid in full out of the proceeds of the
said equity funding.
1.3. TH and SHIN, being substantial shareholders in IBC, have
undertaken to MIH and IBC, to exercise all of their voting and
other powers of control in relation to IBC
2
and do such other things as may be required, in order to
procure that IBC shall have the requisite authority to enter
into and perform all of its obligations under the Subscription
Agreement and the Loan Agreement.
1.4. This Agreement, which is supplementary to the Shareholders'
Agreement, records inter alia:
1.4.1. the terms of the undertaking by TH and SHIN referred to
in clause 1.3;
1.4.2. for the avoidance of any doubt, that the shares
subscribed for by MIH under the Subscription Agreement
will fall within the ambit of the Shareholders'
Agreement;
1.4.3. that TH, SHIN and MIH have agreed to take up, in full,
their pro-rata allocation of shares pursuant to a rights
issue undertaken by IBC in May\June 1998; and
1.4.4. that certain restrictions have been agreed to by TH,
SHIN and MIH in relation to the transferability of their
shares in IBC.
2. DEFINITIONS AND INTERPRETATION
In this Agreement-
2.1. clause headings are inserted for convenience only and shall not
be taken into account in its construction;
2.2. unless the context clearly indicates a contrary intention, an
expression which denotes any one gender includes the other
genders, a natural person includes a juristic person and vice
versa, the singular includes the plural and vice versa and the
following expressions bear the meanings assigned to them below
and cognate expressions bear corresponding meanings-
"Articles" the Articles of Association of IBC,
as amended from time to time;
3
"Baht" Thai Baht;
"Institutional Private the issue and allotment, by way of
Placement" private placement to various
institutions, of seventy million
common shares, ranking pari passu
with the existing issued common
shares in IBC;
"Loan Agreement" the agreement of that title between
MIH and the Company bearing the same
date as this Agreement and in terms
whereof MIH has agreed, subject to
certain conditions, to make a short
term Baht loan to the Company;
"Paribas Agreement" the agreement between MIH, IBC and
Paribas S.A. bearing the same date as
this Agreement (dealing inter alia
with the advance by Paribas S.A., on
behalf of MIH, of the subscription
monies for the Subscription Shares,
and the immediate application of such
monies towards discharge of the
indebtedness of IBC to MIH under the
Loan Agreement);
"Permitted Transferee" shall have the meaning ascribed
thereto in the Shareholders'
Agreement;
"Person" any individual, firm, company,
corporation, government, State or
agency of a State or any joint
venture, partnership, limited
liability company or other
incorporated or unincorporated body;
"Rights Issue" the issue and allotment by IBC, by 22
June 1998,
4
of one hundred and ten million common
shares, ranking pari passu with the
existing issued common shares in IBC,
by way of rights issue to Persons
registered as shareholders of IBC on
15 May 1998, pro-rata to their
shareholdings in IBC at the relevant
time, at a subscription price of
twenty Baht per Share;
"Shareholders' the agreement of that title between
Agreement" the parties hereto dated 16 February
1998;
"Subscription the share subscription agreement
Agreement" between MIH and IBC bearing the same
date as this Agreement in terms
whereof, inter alia, MIH shall
subscribe for and IBC shall, by
way of private placement, issue and
allot to MIH, the Subscription
Shares at a subscription price of
twenty five Baht per share;
"Subscription Shares" sixty million common shares of ▇▇▇▇
▇▇ (▇▇▇ ▇▇▇▇) each in the share
capital of the Company, ranking pari
passu in all respects with the
existing issued common shares of IBC;
"Transfer" shall have the meaning ascribed
thereto in the Shareholders'
Agreement;
"USD" United States Dollars.
5
3. VOTING AGREEMENT
3.1. Each of TH and SHIN undertakes to and in favour of MIH and
IBC, it being understood that such undertaking forms the basis
upon which MIH has agreed to enter into the Loan Agreement and
the Subscription Agreement, that each of TH and SHIN shall:
3.1.1. exercise all voting and other powers of control which
each has in relation to IBC and do such other things
as may be necessary, to procure that IBC shall have
the requisite authority to enter into and perform all
of its obligations under the Loan Agreement and the
Subscription Agreement;
3.1.1.1. in particular, but without derogating from
the generality of clause 3.1.1:
procure, in accordance with the Memorandum
and Articles of Association of IBC, that an
extraordinary general meeting of all the
shareholders of IBC is convened on 10 June
1998, for the purposes of passing a
resolution substantially in the following
form:
Resolution
"That sixty million common shares in the
authorized share capital of IBC, ranking
pari passu with the existing common shares
in the capital of IBC, be issued and
allotted by way of private placement to MIH
Limited at a subscription price of twenty
five Baht per share and that MIH Limited be
exempted from having to make a mandatory
tender offer to shareholders as a result of
such subscription by MIH Limited for shares
in IBC."
3.1.1.2. voted favour of the resolution specified in
clause 3.1.1.1 and procure that all
directors of IBC nominated by TH and SHIN
vote in favour of all necessary board
resolutions required to give effect to the
Loan Agreement and the Subscription
Agreement;
3.1.1.3. procure all necessary consents or other
permissions required in
6
order for the IBC to enter into and perform
all of its obligations under the Loan
Agreement, the Subscription Agreement and
the Paribas Agreement;
3.1.1.4. to the extent each party is able to do so,
facilitate the fulfilment of the conditions
precedent in the Loan Agreement and the
Subscription Agreement.
4. SCOPE OF SHAREHOLDERS' AGREEMENT
It is recorded and agreed that the Subscription Shares to be issued and
allotted to MIH under the Subscription Agreement, shall together with
any other shares in IBC howsoever acquired by MIH from time to time
after the date hereof, fall within the ambit of the Shareholders
Agreement and the Shareholders' Agreement shall apply in respect of
such shares. For example, in computing the shareholding of MIH in IBC
from time to time for the purposes of determining the rights of MIH
under the Shareholders' Agreement, the Subscription Shares shall be
added to MIH's holding of shares in IBC at the relevant time.
5. RIGHTS ISSUE
5.1. It is recorded that the shareholders of IBC have passed a
resolution that IBC undertake the Rights Issue by 22 June
1998. TH, SHIN and MIH undertake to exercise their powers of
control in relation to IBC to procure that the Rights Issue
shall be effected on such date.
5.2 TH, SHIN and MIH agree and each undertake in favour the other
and IBC that each shall take up its full pro-rata allocation
of shares under the Rights Issue as follows:
5.2.1. TH shall subscribe in cash for and IBC shall issue
and allot to ▇▇ ▇▇, ▇▇▇, ▇▇▇ (▇▇▇▇▇ four million four
hundred and twelve thousand four hundred and forty
three) common shares;
5.2.2. SHIN shall subscribe in cash for and IBC shall issue
and allot to SHIN 19, 246, 602 (nineteen million two
hundred and forty six thousand six hundred and two)
common shares;
7
5.2.3. MIH shall subscribe in cash for and IBC shall issue
and allot to MIH 19,246,602 (nineteen million two
hundred and forty six thousand six hundred and two)
common shares.
6. RESTRICTION UPON TRANSFER OF SHARES
6.1. Each of TH, SHIN and MIH agrees and undertakes in favour of
the other that it shall not, and shall procure that any
Permitted Transferee to whom it may Transfer or may already
have Transferred any shares in IBC shall not, during the
period commencing on the date hereof and ending on such date
falling six months after the date upon which IBC shall have
issued all of the aggregate number of 240,000,000 (two
hundred and fourty million) shares pursuant to the Rights
Issue, the Subscription Agreement and the Institutional
Private Placement, or such shorter period as may be agreed
to in writing between all the parties, Transfer any of its
shares in IBC to any Person Save That:
6.1.1. shares may be Transferred to Permitted Transferees
pursuant to the provisions of the Shareholders'
Agreement, subject to the Permitted Transferee
undertaking in writing to be bound by the aforegoing
restriction; and
6.1.2. TH shall have the right to Transfer in accordance
with the terms of the Shareholders' Agreement, up to,
but no more than, one hundred and eighty nine million
shares in IBC for the sole purposes of the placement
of such shares by Paribas S.A. with institutions
together with the shares in IBC offered under the
Institutional Private Placement.
7. INDEMNITY
TH and SHIN hereby indemnify and hold MIH harmless against any losses,
costs, charges, expenses or other liabilities of whatsoever nature and
howsoever arising which MIH and\or IBC may incur as a result of TH
and\or SHIN breaching any other of their obligations under this
Agreement. In the latter regard, TH and SHIN acknowledge and agree that
MIH has agreed to enter into the Loan Agreement on the basis that the
Loan will be repaid out of the proceeds of the subscription under the
Subscription Agreement. In other words, that the
8
conditions precedent in the Subscription Agreement will be fulfilled
and IBC shall perform all of its obligations thereunder and under the
Paribas Agreement so that the proceeds of the subscription will be
utilised only for the purpose of discharging the Loan.
8. FURTHER ASSURANCE
Each party shall do or procure to be done all such further acts and
things, and execute or procure the execution of all such other
documents, as the other may from time to time reasonably require, for
the purpose of giving the other parties the full benefit of all the
provisions of this Agreement.
9. CONFLICT WITH OTHER DOCUMENTS
In the event of any conflict between the provisions of the Agreement
and the provisions of the Shareholders' Agreement or the Articles then,
subject to the provisions of the law of Thailand, the provisions of
this Agreement shall prevail and the parties hereto shall exercise all
voting and other rights and powers legally available to them (whether
as shareholders or otherwise) to give effect to the provisions of this
Agreement. If there is an irreconsilable conflict between a provision
of the Agreement and a mandatory provision of the law of Thailand, the
parties shall use best efforts to agree on an alternative mechanism or
provision which will reflect as closely as possible the intention of
the parties as set out in this Agreement and the conflicting provision
contained in this Agreement shall be invalid (but only to the extent
necessary), provided that such invalidity shall not affect the other
provisions of this Agreement.
10. WAIVERS
10.1. No delay in exercising or failure to exercise any right or
remedy under this Agreement shall operate as a waiver thereof
nor shall any single or partial exercise of any right or
remedy preclude either the further exercise thereof or the
exercise of any other right or remedy. The rights and remedies
provided by this Agreement are cumulative and do not exclude
any rights, powers or remedies provided by law, at equity or
otherwise.
10.2. In the event that any party shall expressly waive any breach,
default or omission hereunder, without the prior written
consent of the other parties hereto, no such waiver shall
apply to, or operate as, a waiver of similar breaches,
defaults or
9
omissions or be deemed to be a waiver of any other breach,
default or omission hereunder.
11. NOTICES
All notices and communications under this Agreement shall be given in
accordance with the provisions of clause 18 of the Shareholders'
Agreement.
12. GOVERNING LAW AND ARBITRATION
12.1. This Agreement shall be governed by and construed in
accordance with the law of Thailand.
12.2. If any dispute arises at any time between any of the parties
in connection with this Agreement including, without
limitation, the formation or existence of, the implementation
of or the interpretation or application of, the parties'
respective rights and obligations in terms of or arising out
of this Agreement or its breach or termination or the
performance or non-performance of any party's obligations
hereunder or which relates in any way to any matter affecting
the interests of the parties in terms of this Agreement, and
the parties are unable to resolve their dispute, any party may
refer the matter in dispute, in the first instance, to the
respective chief executive officers of the parties for
resolution.
12.3. If after having been referred under clause 12.2, the matter in
dispute shall not have been resolved within 21 (twenty one)
days of the matter having been so referred, any of the parties
may request by notice in writing to the other parties that an
attempt be made to resolve the dispute by way of mediation by
a mediator agreed to between the parties. If the parties are
unable to agree on a mediator within 21 (twenty one) days of
receipt by the other parties of the request for mediation, the
mediation shall not take place. If the mediation occurs, the
following procedures shall be adhered to -
12.3.1. 1 (one) representative of each party shall be
entitled to attend the mediation and no party shall
be entitled to any other representation;
12.3.2. the mediator shall in his absolute discretion
determine the nature and form
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of the mediation with the sole aim of resolving the
dispute by way of negotiation as soon as possible;
12.3.3. the decisions of the mediator shall not be binding
on the parties;
12.3.4. the cost of the mediation as determined by the
mediator shall be borne by the parties in equal
shares.
12.4. If mediation does not take place because the parties cannot
agree on a mediator or, if, after mediation pursuant to clause
12.3, the dispute shall not have been resolved or the
mediation agreement shall not have been implemented within
the time agreed to or, if no time had been agreed to, within
a reasonable time after completion of the mediation, any
party may refer the matter in dispute for determination by
final arbitration in Bangkok in accordance with the Rules of
the Arbitration Institute of the Ministry of Justice of
Thailand in force at the date of the request for arbitration
("Rules"), (which Rules are deemed to be incorporated by
reference into this clause), by 3 (three) arbitrators
(unless the parties agree in writing to have a single
arbitrator only), one of whom shall be appointed by the
party referring the matter to arbitration, a further one of
whom shall be appointed by the opposing party and the third
appointed by the 2 (two) so chosen. In the event of either
the referring party or the opposing party failing to appoint
an arbitrator within 30 days after the formal commencement
of the arbitration proceedings and/or failing agreement
between the 2 (two) arbitrators within 14 (fourteen) days of
their appointment, upon the appointment of a third
arbitrator, such arbitrator or arbitrators shall be
appointed by the relevant appointing authority under the
Rules on the written request of any of the relevant parties.
The arbitrators shall establish the procedural rules
applicable to the proceedings. The arbitration shall be
conducted in Thai and also, if so requested by a party to
the arbitration proceedings, in the English language. The
arbitrators, if so required by any of the parties, shall
order the parties to make discovery of all documents
relevant to the issues in the arbitration. Subject to any
applicable law, any award of such arbitration shall be
non-appealable, be finally binding upon the parties and may
be entered into and enforced by any court having
jurisdiction. The fees, costs and expenses of any
arbitration in terms of this clause 12 shall be payable in
such
11
proportions as the arbitrators may determine or, in the
absence of such determination, shall be payable in accordance
with the Rules.
12.5. This clause shall not preclude any party from obtaining
interim relief on an urgent basis from a court of competent
jurisdiction pending any decision of the arbitrator.
12.6. The provisions of this clause -
12.6.1. constitute an irrevocable consent by the parties to
any proceedings in terms hereof and no party shall be
entitled to withdraw therefrom or claim at any such
proceedings that it is not bound by such provisions;
12.6.2. are severable from the rest of this Agreement and
shall remain in effect despite the termination of or
invalidity for any reason of this Agreement.
13. ENTIRE AGREEMENT
13.1. This Agreement (which for the avoidance of doubt is intended
to be supplementary to the Shareholders' Agreement) together
with the agreements referred to herein, constitute the entire
agreement between the parties and supersede all prior
agreements between the parties or any of them concerning the
subject matter hereof. No amendment, change or additions
hereto shall be effective or binding on any party unless
reduced to writing and executed by all the parties.
13.2. Each of the parties acknowledges that in entering into this
Agreement it is not relying on any representation or other
statement which is not set out in this Agreement or the other
documents referred to herein.
IN WITNESS WHEREOF this Agreement has been executed on the day and year first
above written.
SIGNED BY
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
duly authorised
for and on behalf of
▇▇▇▇▇▇▇▇▇▇ COMPUTER AND
COMMUNICATIONS PUBLIC COMPANY LIMITED
12
SIGNED BY
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
duly authorised
for and on behalf of
MIH LIMITED
[SEAL OF TELECOM HOLDING CO. LTD.]
SIGNED BY
/s/ Vallobh Vimolvanich /s/ Soopakij Chearavanont
duly authorised
for and on behalf of
TELECOM HOLDING COMPANY LIMITED
[SEAL OF INTERNATIONAL BROADCASTING CORP.]
SIGNED BY
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
duly authorised
for and on behalf of
INTERNATIONAL BROADCASTING CORPORATION
PUBLIC COMPANY LIMITED
13
Telecom Holdings Limited
Telecom Tower, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Computer and Communications Public Company Limited
▇▇▇▇/▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
MIH Limited
▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Dear Sirs
Amendment to Shareholders Agreement dated 16 February 1998
----------------------------------------------------------
The Shareholders in United Broadcasting Corporation Public Company Limited ("the
Company"), wish to have the ability to pledge their shares in the Company.
Accordingly, notwithstanding the provisions of the Shareholders Agreement to the
contrary, the parties hereby agree that a Shareholder shall be entitled to
pledge its Shares without first offering to sell such Shares to the other
Shareholders, provided that--
1. The pledgor shall immediately after entering into such pledge advise the
other Shareholders, in writing, of the identity and full address of the
pledgee; and
2. The pledgor shall have ensured that in terms of the agreement of pledge,
the pledgee shall not be entitled to Transfer any of the pledged Shares
except in accordance with the provisions of clauses 9.3 (save that the
pledgee will not be bound by the provisions as to the price of the Sale
Shares as set out in this clause), 9.4, 9.5, 9.6 and 9.7 of the
Shareholders Agreement. After the compliance with the foregoing sentence,
the pledgee shall be entitled to transfer without having to comply with
clauses 9.2 and 9.8.
Capitalised terms have the same meaning herein as in the Shareholders Agreement.
Yours sincerely
/s/ Soopakij Chearavanont
United Broadcasting Public Company Limited
We agree to the provisions set out above:
Signed by
/s/ Vallobh Vimolvanich
for and on behalf of Telecom Holding Company Limited Date: 25.9.98
Signed by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
for and on behalf of
▇▇▇▇▇▇▇▇▇▇ Computer and Communications Public Company Limited Date: 25.9.98
Signed by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
for and on behalf of MIH Limited Date: 25.9.98
