Exhibit 10.76
SHAREHOLDERS AGREEMENT
DATED
16 OCTOBER, 2000
BETWEEN
XXXXXXXXX TELECOMMUNICATIONS INVESTMENTS LIMITED
GMRP (THAILAND) LIMITED
TAWAN TELECOM COMPANY LIMITED
XX. XXXXXXX BOONSOONG
MR. VIRAT OVARARINT
AND
i-MOBILE HOLDINGS COMPANY LIMITED
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In respect of
i-MOBILE HOLDINGS COMPANY LIMITED
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CONTENTS
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
1.2 Interpretation
2. EFFECTIVE DATE
3. SHARE CAPITAL
3.1 Issued Share Capital
3.2 Shareholding Pattern
3.3 Thai Shareholders' Entitlement
4. DIRECTORS AND OFFICERS
4.1 Directors of the Company
4.2 Alternate Directors
4.3 Place and Calling of Board Meetings
4.4 Resolution by Circulation or by Telephone
4.5 Chairman
4.6 Executive Committee and Secretary
4.7 Quorum for Directors Meetings
4.8 Decisions by Majority Vote
4.9 Auditors
4.10 Accounting Year
5. MANAGEMENT
6. FUNDING AND CAPITAL
6.1 Funding Requirements
6.2 Xxxxxxxxx'x Funding Obligation
6.3 Loans to GMRP
6.4 Carried Liability
6.5 Payment of Existing Liabilities
6.6 Accrued Penalties and Clawback
7. TRANSFER OF SHARES AND DEFAULT
7.1 Restrictions on Thai Shareholders
7.2 Default of Thai Shareholders
7.3 Option to Purchase Pledged Shares on Default
7.4 Rights of First Refusal - Thai Shareholders Shares
7.5 Put and Call Option - GMRP Shares
8. FURTHER OBLIGATIONS OF THE PARTIES
8.1 Further Assurance
8.2 Exchange of Information
8.3 Cat Shares and Restructuring of the Group
8.4 Agreement Terminates on Winding Up or IPO
8.5 Obligations of the Company
9. DISPUTE RESOLUTION
9.1 Consultation
9.2 Referral to Courts
10. CONFIDENTIALITY
10.1 Agreement Confidential
10.2 Injunctive Relief
10.3 Survival
11. PRECEDENCE OF THIS AGREEMENT
12. NOTICES
13. MISCELLANEOUS
13.1 Legal and other costs
13.2 Complete Agreement
13.3 Unenforceable Provisions
13.4 No Partnership
13.5 Amendment in Writing
13.6 No Assignment
13.7 No Waiver
13.8 Counterparts
13.9 Governing Law
SCHEDULE A - FAIR VALUE
SCHEDULE B - THE AGREED PROPORTIONS
SCHEDULE C - THE RELATED PARTIES LIABILITIES
SCHEDULE D - FORM OF PLEDGE
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THIS SHAREHOLDERS AGREEMENT (this "Agreement") is made the 16th day of October
2000
BETWEEN:
X. Xxxxxxxxx Telecommunications Investments Limited, a company incorporated in
Mauritius whose registered office is at Les Cascade Building, Xxxxx Xxxxxx
Street, Port Louis, Mauritius ("Xxxxxxxxx");
B. GMRP (Thailand) Limited, a company incorporated in Thailand with its
registered office at 22nd-25th Floor, 990 Rama IV Road, Silom, Bangrak,
Bangkok, Thailand ("GMRP");
C. Tawan Telecom Company Limited, a company incorporated in Thailand with its
registered office at 000 Xxx 00 Xxxxxxxx Xxxx 3 Bldg., 19th FL.,
Bangna-Trad Rd., Km. 3.5 Xxxxxx, Xxxxxxx 00000 Xxxxxxxx represented by Xx.
Xxxx Pativechvong also known as "Xx. Xxxxxxx Pooiana", Mr. Anuwat
Laikijrung and Mr. Sukhato Poummalee (the"TTC");
D. Xx. Xxxxxxx Boonsoong holding an I.D. card no. 3 8399 00425 755 issued by
Phuket Province residing at 0/0 Xxxxxxxxx Xxxx, Xxxxxx Taladyai, Amphur
Muang, Phuket Province ("Xx. Xxxxxxx");
E. Mr. Virat Ovararint holding an I.D. card no. 3 1009 04705 39 4 issued by
residing at 00 Xxx Xxxxxxxxxx 00, Xxxxxxxxxx Xxxx, Xxxxxxx Xxxxxxxxx,
Xxx_ Suanluang, Bangkok ("Mr. Virat"); and
F. i-Mobile Holdings Company Limited, a company incorporated in Thailand whose
registered office is at 00xx Xxxxx, Xxxxxxxxxx Xxxxx, 000 Xxxx XX Xxxx,
Xxxxx, Xxxxxxx, Xxxxxx, Xxxxxxxx (the "Company").
Each of the aforesaid shall be referred to collectively as the "Parties" and
each as a "Party"; and
TTC, Xx. Xxxxxxx and Mr. Virat shall be referred to collectively as the "Thai
Shareholders" and each as a "Thai Shareholder".
WHEREAS:
A. The Company is a private company limited by shares, which has been
established by Xxxxxxxxx and GMRP to acquire the interest of certain of
the Thai Shareholders in Tawan Mobile Telecom Co., Ltd ("TMT").
B. The registered share capital of the Company as at the date hereof is Thai
Baht Ten Million (10,000,000) divided into 1,000,000 shares of par value
Baht 10 each 590,000 of which are designated as "A" Shares (as defined
below) and 410,000 are designated as "B" Shares (as defined below).
C. Each of the Parties, other than the Company, is or will be the registered
owner of Shares (as defined below).
D. This Agreement sets forth the arrangement between the Parties with respect
to the Company and the rights and obligations of the Shareholders (as
defined below).
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, the Parties hereby agree as
follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement unless the context otherwise requires or expressly
provides, the following words shall have the following meanings
respectively:
"Accrued penalties" means the penalties (including accrued interest) due
and payable to CAT by TMT in respect of the failure to obtain a minimum
number of subscribers under the Marketing Agreement;
""A" Share Advances" is defined in Clause 6.3 (b);
""A" Share Loan" means the aggregate of all "A" Share Advances made by
Xxxxxxxxx to GMRP under Clause 6.3;
""A" Shares" means the ordinary shares in the registered capital of the
Company carrying the voting and other rights set forth in the Articles;
"AGM" means an annual general meeting of the Company;
"Alternate Director" means a Director appointed pursuant to Clause 5.3;
"Agreed Proportions" means the proportions in which the Thai Shareholders
share the Thai Shareholders' Entitlement, as set out in Schedule B or as
may be otherwise agreed between the Thai Shareholders and notified in
writing by the Thai Shareholders to the Company from time to time;
"Articles" means the articles of association of the Company for the time
being;
""B" Shares" means the preference shares in the registered capital of the
Company carrying the voting and other rights set forth in the Articles;
"Board" means the board of directors of the Company;
"Business Day" means a day on which scheduled banks are open for business
in Thailand;
"CAT" means The Communications Authority of Thailand;
"CGP" means CGP Investments (Holdings) Limited;
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"Chairman" means the Chairman of the Board;
"Change in Control" means in relation to TTC;
(a) the sale of any shares in the capital of TTC to a Third Party;
(b) the grant of any Encumbrance over the share capital of TTC to a Third
Party;
For the purposes of this definition, "Third Party" means any person (other
than Xxxxxxxxx or its designated person) who is not registered holder of
shares in the capital of TTC as at the Effective Date;
"Clawback Amount" is defined in Clause 6.6;
"Clawback Proportion" is defined in Clause 6.6;
"Credit Support" means shareholder guarantees, indemnities or other credit
support satisfactory to third party lenders;
"Deemed Amount" means the amount payable by Xxxxxxxxxxx to TMT under Clause
6.3 of the Services Agreement;
"Determination Date" means the date on which CAT finally determines the
amount of the Accrued Penalties in writing to TMT;
"Director" means the director of the Company (including an Alternate
Director) from time to time;
"Effective Date" means the date on which Completion occurs under the Share
Purchase Agreement;
"EGM" means an extraordinary general meeting of the Company;
"Encumbrance" means any lien, claim, restriction, encumbrance, security
interest (including a pledge, mortgage, assignment in trust), option,
warrant or any other kind of right affecting legal or beneficial ownership;
"Fair Value" is defined in Schedule A;
"General Meeting" means an AGM or an EGM;
"GMRP Shares" means all Shares owned by GMRP from time to time (excluding
any Shares that GMRP will transfer to the Thai Shareholders on the Second
issue Date or any Shares acquired by GMRP under Clause 7.3);
"Group" means the Company and its Subsidiaries from time to time;
"Xxxxxxxxx Loan" is defined in Clause 6.3 (d);
"Initial Shares" means the Shares to be issued to the Thai Shareholders
under Clause 3.1, representing 75% of the Thai Shareholders Entitlement;
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"IPO" means the initial public offering of any member of the Group;
"Lock-up Period" means, in relation to a Thai Shareholder, the period
commencing on the Effective Date and ending on the later of (a) the third
anniversary of this Agreement and (b) date on which that Thai
Shareholder's Clawback Proportion has been fully extinguished;
"Marketing Agreement" means the agreement between TMT and CAT dated 14
August 1996, as amended on 1st April 1997 and on or about the date of this
Agreement, for the marketing of the Network;
"Network" means the CDMA 800 Band A mobile telecommunications network to be
used in connection with TMT's marketing activities;
"Pledge" means, with respect to any Thai Shareholder, the pledge granted by
that Thai Shareholder to Xxxxxxxxx in respect of its Shares in the form
attached hereto as Schedule D;
"Pledged Shares" means, with respect to a Thai Shareholder, all the Shares
owned by that Thai Shareholders during the Lock-up Period;
"Project" means the marketing by TMT of the Network on behalf of CAT under
the terms of the Marketing Agreement;
"Related Parties' Liabilities", means the liabilities of TMT to the Thai
Shareholders and their respective related companies set forth in Schedule
C;
"Relevant Period" means the period commencing on the Effective Date and
ending on the day before the date of the IPO;
"Second Issue Date" means the date on which GMRP will transfer to the Thai
Shareholders 25% of the Thai Shareholders' Entitlement which will be the
earlier of (a) the second anniversary of the Effective Date and (b) the day
before the date of the IPO;
"Services Agreement" means the agreement between Xxxxxxxxxxx International
Limited, Xx. Xxxxxxx, Mr. Virat and CGP dated on or about the date of this
Agreement for the provision of certain services by Xxxxxxxxxxx
International Limited, Xx. Xxxxxxx and Mr. Virat to CGP;
"Shareholder" means any of Xxxxxxxxx, GMRP, TTC, Xx. Xxxxxxx (or his
designee) or Mr. Virat Ovararint;
"Shareholder Loans" means loans advanced to a member of the Group by a
Shareholder;
"Share Purchase Agreement" means the agreement dated the date of this
Agreement between the Thai Shareholders, JB Power International Group
Limited, Telecom Connections Company Limited and the Company providing for
the acquisition by the Company of 975,000 shares in TMT;
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"Share" means a registered share (of any class) in the capital of the
Company from time to time;
"Subsidiaries" means TMT and any other company in which the Company holds
more than a 30% interest from time to time;
"Thai Shareholders' Entitlement" means (subject to Clause 3.2) an aggregate
of ten per cent of the registered share capital of the Company from time to
time during the Relevant Period, or any lesser percentage resulting from
the provisions of this Agreement.
"Valuers" is defined in Schedule A.
1.2 Interpretation
(a) Heading and bold typeface are only for convenience and shall be
ignored for the purpose of interpretation;
(b) Unless the context of this Agreement otherwise requires;
(i) words using the singular number also include the plural or
singular number, respectively;
(ii) the terms "hereof, "hereto" and derivative or similar words refer
to this entire Agreement or specified Clauses of this Agreement,
as the case may be;
(iii) the term "Clause" refers to the specified clause of this
Agreement;
(iv) reference to any legislation or law or to any provision thereof
shall include references to any such law as it may, after the
date hereof, from time to time, be amended, supplemented or
re-enacted, and any reference to statutory provision shall
include any subordinate legislation made from time to time under
that provision;
(v) reference to a Party shall include such Party's successor,
permitted assign and any person deriving title under it;
(vi) reference to the word "include" shall be construed without
limitation; and
(vii) the Schedules hereto shall constitute an integral part of this
Agreement.
2. EFFECTIVE DATE
This Agreement shall take effect on the Effective Date.
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3. SHARE CAPITAL
3.1 Issued Share Capital
On the Effective Date, the registered share capital of the Company shall be
Thai Baht Ten Million(10,000,000) divided into 1,000,000 Shares of par
value Baht 10 each.
Xxxxxxxxx shall procure that within two business days after the date on
which the shareholders of TMT approve the appointment of the Company's
nominated persons to the board of directors of TMT and the designation of
each such director as an authorized director (the "Final Completion Date")
that, subject to there being no material adverse change in TMT between the
Effective Date and the Final Completion Date other than on account of any
action on the part of the Company or Xxxxxxxxx, Shares shall be issued or
transferred to the Thai Shareholders and the registered share capital of
the Company shall be held as follows:
Shareholder No of Shares Class
----------- ------------ -----
Xxxxxxxxx and Individual Members 490,000 "A"
GMRP 410,000 "B"
The Thai Shareholders (in the Agreed Proportions) 75,000 "A"
GMRP 25,000 "A"
"Individual Members" means the persons specified in the register of
shareholders of the Company.
3.2 Shareholding Pattern
Subject to the provisions of this Agreement (including Clause 8.3):
(a) until the Second Issue Date, the Shareholders shall maintain the
shareholding ratio specified in Clause 3.1; and
(b) after the Second Issue Date until the expiry of the Relevant Period,
the registered share capital of the Company shall be held as follows:
Shareholder % Class
----------- -- -----
Xxxxxxxxx and Individual Members 49% "A" Ord.
GMRP 41% "B" Pref.
The Thai Shareholders (in the Agreed Proportions) 10% "A"
3.3 Thai Shareholders' Entitlement
Subject to the provisions of Clause 7, until the Second Issue Date, the
Thai Shareholders shall hold the Initial Shares in the Agreed Proportions
and GMRP shall hold the balance of the Thai Shareholders' Entitlement (the
"Balance"). On the Second Issue Date, GMRP or any person to whom the
Balance has been transferred under Clause 7.5 (f), shall transfer the full
legal and beneficial ownership of the
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Balance to the Thai Shareholders, in the Agreed Proportions in
consideration for an amount equal to the "A" Share Loan as at the Second
Issue Date (the "Transfer Price"). The cost of such transfer (including the
obligation to pay the Transfer Price and stamp duty if any payable in
respect thereof) shall be borne by the Vendors in the Agreed Proportions.
The Transfer Price shall be paid by the deemed repayment of the "A" Share
Loan, as provided in Clause 6.3 (e) or by Xxxxxxxxx if GMRP has transferred
the Balance under Clause 7.5 (f).
4. DIRECTORS AND OFFICERS
4.1 Directors of the Company
The Board shall comprise five (5) Directors, four (4) of whom shall be
nominated by Xxxxxxxxx and one (1) of whom shall be nominated by GMRP.
4.2 Alternate Directors
A Director (an "Original Director") may appoint another person (an
"Alternate Director") for and in place of the Original Director to attend
and vote at Board meetings on his behalf. The Alternate Director shall be
entitled to attend and vote at such meetings in place of the Original
Director.
4.3 Place and Calling of Board Meetings
Board meetings shall be held in Thailand or such other place as the Board
may determine. Fourteen days written notice (or such shorter period as the
majority of Directors may agree) of Board meetings shall be given to all
Directors.
Each notice of a meeting of the Board shall contain an agenda specifying in
reasonable detail the matters to be discussed at the relevant meeting and
shall be accompanied by all necessary written information. Where a Board
meeting is adjourned, it shall be reconvened on a day seven days from the
original date at the same place and time unless the Board decides
otherwise.
4.4 Resolution by Circulation or by Telephone
Resolutions of the Board may be passed by circulation signed by a majority
of the Directors. Such resolutions may be signed in counterparts.
Any Director shall be entitled to participate in any Board meeting by
telephone or video-conference and a Director participating in such manner
shall be counted in the quorum provided that he can hear and be heard by
the other Directors in the meeting.
4.5 Chairman
The Board shall nominate the Chairman. The Chairman shall preside as
chairman of each meeting of the Board at which he is present and in his
absence the Directors attending the meeting shall elect a Director from
amongst themselves to chair the meeting. The Chairman shall not have a
casting vote.
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4.6 Executive Committee and Secretary
The Board shall have the power to appoint an Executive Committee and
delegate the powers to such Committee for the day to day management of the
Company. The exercise of powers of management by the Committee shall be
subject to the overall supervision of the Board.
The secretary of the Company shall be such person as shall from time to
time be determined by the Board.
4.7 Quorum for Directors Meetings
The quorum for meetings of the Board shall be 3 (three) Directors. If a
quorum is not present, the meeting shall be adjourned for seven days at the
same place and time and if no quorum is then present the Directors present
shall form a quorum.
4.8 Decisions by Majority Vote
All decisions of the Board shall be taken by a majority of the Directors
present and voting at a meeting of the Board, or as the case may be, the
directors voting by way of a circular resolution.
4.9 Auditors
The auditors of the Company shall be PriceWaterhouseCoopers or such
international and reputable firm of accountants as shall from time to time
be recommended by the Board and approved by the Shareholders in General
Meeting.
4.10 Accounting Year
The accounting year of the Company shall end on 31st December each year or
such other date as the Company in general meeting shall resolve.
5. MANAGEMENT
The Board shall be responsible for the management of the business of the
Company and determining the overall policies and objectives of the Company.
The Board shall delegate responsibility for managing the day to day
operations of the Company to the Executive Committee on such terms as the
Board deems desirable and subject always to the terms of this Agreement.
6. FUNDING AND CAPITAL
6.1 Funding Requirements
Funds for the Company shall be provided by share capital, Shareholder Loans
and/or external borrowings, as determined by the Board.
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Except as provided in Clause 6.2 or as otherwise agreed in writing by the
Parties, Shareholder Loans, Credit Support and equity contributions for
the Company shall be provided by the Shareholders pro rata to their
respective interests in the capital of the Company. If any Shareholder (a
"Non-Subscribing Shareholder") does not provide its share of Shareholder
Loans, Credit Support or equity contributions:
(a) in the case of Shareholder Loans or Credit Support: the Shareholders
who have agreed to provide their share of Shareholder Loans or Credit
Support (the "Participating Shareholders") shall be entitled to
require the calling of a Shareholders' meeting to approve a share
capital increase and the allotment and issue of new Shares, at par,
among the Participating Shareholders in an aggregate amount equal to
the Shareholder Loan or Credit Support that the Non-Participating
Shareholder, failed to provide (the "Capital Increase"). The new
Shares created pursuant to the Capital Increase shall be allotted
among the Participating Shareholders, thus diluting the shareholding
of the Non-Participating Shareholder. If there is more than one
Participating Shareholder, the Capital Increase shall be allotted
among the Participating Shareholders in proportion to their
respective shareholding in the Company (excluding the Shares held by
the Non-Participating Shareholder); or
(b) in the case of equity contributions: the Shareholders who have agreed
to subscribe for the equity contribution (the "Subscribers") shall be
entitled to subscribe for the Shares which the Non-Participating
Shareholder failed to take up, thus diluting the shareholding of the
Non-Participating Shareholder. The subscription price shall be the
price specified in the notice from the Company calling for the equity
contributions. If there is more than one Subscriber, the
Non-Participating Shareholder's equity contribution shall be
allocated among the Subscribers in proportion to their respective
shareholding in the Company (excluding the Shares held by the
Non-Participating Shareholder).
6.2 Xxxxxxxxx'x funding obligation
Xxxxxxxxx agrees that, during the Relevant Period, it will fund or procure
the funding of all the operating expenses, capital expenditure and any
other expenditure of the Company (including interest expenses) insofar as
such expenses and expenditure relate to the Project. In this regard,
Xxxxxxxxx shall
(a) provide or procure all the Company's debt funding, including
Shareholder Loans and Credit Support; and
(b) make funds available to GMRP and the Thai Shareholders for their
capital contributions and future capital increases of the Company in
the manner described in Clause 6.3 and 6.4.
6.3 Loans to GMRP
(a) Xxxxxxxxx agrees to make advances to GMRP to subscribe for its Shares,
as specified in Clause 3.1 and to maintain (and subject to Clause 8.3)
an aggregate 41% interest in the registered capital of the Company set
forth in
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Clause 3.2, if a call is made on the Shareholders for additional
Shares. In consideration of the foregoing, GMRP will pledge its
Shares (including the "A" Shares referred to in paragraph (b) of this
Clause) to Xxxxxxxxx (or a person designated by Xxxxxxxxx).
(b) Xxxxxxxxx shall also advance to GMRP amounts required for the
subscription of the "A" Shares to be held by GMRP and to be
transferred to the Thai Shareholders on the Second Issue Date, as
provided in Clause 3.3 (""A" Share Advances").
(c) Each advance made by Xxxxxxxxx under paragraphs (a) and (b) of this
Clause shall be made on an interest-free basis.
(d) The aggregate of all advances made to GMRP under paragraph (a) of this
Clause (the "Xxxxxxxxx Loan") shall be repayable on the transfer of
the GMRP Shares to Xxxxxxxxx (or its designated person) under Clause
7.5.
(e) The "A" Share Loan shall be repayable on the transfer of the Balance
(as defined in Clause 3.3) of the "A" Shares to the Thai Shareholders
under Clause 3.3 or, if earlier, on the transfer of such Shares to
Xxxxxxxxx (or its designated person) under Clause 7.5. Xxxxxxxxx
agrees that, if the Balance is transferred to the Thai Shareholders as
provided in Clause 3.3, the "A" Share Loan will be deemed to have been
repaid in full upon the completion of such transfer.
(f) Xxxxxxxxx shall keep complete records of each advance made by it under
this Clause, such records to be conclusive and binding on GMRP in the
absence of manifest error. Xxxxxxxxx shall provide GMRP with a copy of
such records on GMRP's written request.
6.4 Carried Liability
Subject to the provisions of this Agreement, Xxxxxxxxx shall provide on
behalf of the Thai Shareholders of all funds required for the Thai
Shareholders to maintain shareholding percentage of 7.5% in the Company or
10% in the Company at the Second Issue Date, in the Agreed Proportions
(including the Transfer Price referred to in Clause 3.3, which shall be
provided in accordance with the provisions of that Clause), until the
expiry of the Relevant Period. In consideration of the foregoing, the Thai
Shareholders shall enter into the Pledge.
If any Thai Shareholder breaches its obligations under this Agreement or
the Pledge, Xxxxxxxxx'x obligations to provide such funding on behalf of
the defaulting Thai Shareholder shall terminate and the Thai Shareholders'
Entitlement shall be reduced proportionately.
6.5 Payment of Related Parties' Liabilities
The Company agrees to procure that TMT will repay the Related Parties'
Liabilities to the Thai Shareholders and other creditors identified in
Schedule C, in the amounts identified as due to them in Schedule C (or as
may be otherwise notified to TMT in
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writing), within 15 Business Days of the Effective Date. The Related
Parties' Liabilities shall not accrue interest from the Effective Date.
Each of the Thai Shareholders shall not, and shall procure that their
respective related parties (as identified in Schedule C) shall not, make
any demands nor otherwise compel TMT to repay the Related Parties'
Liabilities prior to 15 Business Days after the Effective Date.
6.6 Accrued Penalties and Clawback
(a) The Thai Shareholders undertake to use their respective best efforts
to achieve a reduction of the Accrued Penalties to Baht 450 million or
less.
In consideration of such efforts, provided that the Accrued Penalties
are reduced to Baht 450 million or less, the Company agrees to pay the
Thai Shareholders an aggregate commission of Baht 20.897 million (the
"Commission"). The Commission shall be apportioned among the Thai
Shareholders as follows:
Virat Ovararint Baht 7,080,600
TTC Baht 13,816,400
The Commission will be paid within 5 Business Days of the
Determination Date.
(b) Each of the Thai Shareholders agrees that the difference between the
final determination of the Accrued Penalties as at the Determination
Date and Baht 300 million (the "Delta") less any amount paid after the
Effective Date to TMT under Clause 6.3 of the Services Agreement (the
"Clawback Amount") shall be a debt owed by them to the Company which
shall be paid in accordance with the provisions of this Clause.
(1) Subject to paragraph (2), the Clawback Amount shall be
apportioned among the Thai Shareholders as to 50% to TTC; 25% to
Xx. Xxxxxxx and 25% to Mr. Virat. Each Thai Shareholder's
proportion of the Clawback Amount shall be referred to in this
Agreement as a "Clawback Proportion".
(2) If, by virtue of a breach of the Services Agreement, TMT does not
receive the amount payable to it under Clause 6.3 of the Services
Agreement within 15 Business Days (as that term is defined in the
Share Purchase Agreement) of the Determination Date, the Clawback
Proportions shall be calculated as follows:
Xx. Xxxxxxx and Mr. Virat: 50% in aggregate of the Delta less the
Deemed Amount;
TTC: 50% of the Delta plus the Deemed
Amount.
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(3) Xxxxxxxxx shall not have any responsibility in connection with
the calculation or determination of the Deemed Amount.
(4) Each Thai Shareholder shall repay its Clawback Proportion to the
Company in one or more of the following ways until its Clawback
Proportion is repaid in full:
(i) on each occasion that dividends are declared by the Company,
by setting off the amount of such dividend payable to the
Thai Shareholders against an equivalent amount of the
Clawback Proportion (which amount will be deemed to have
been repaid by the Thai Shareholder). For the purpose of
this Clause, dividends attributable to Shares to be
transferred to the Thai Shareholder on the Second Issue Date
under Clause 3.3 shall be applied towards the reduction of
each Clawback Proportion; and/or
(ii) by the payment of all the outstanding Clawback Proportion
from the proceeds of sale of the Thai Shareholder's Shares
(other than a sale to Xxxxxxxxx under the terms of the
share pledge agreement and share purchase option agreement
executed between the relevant Thai Shareholders and
Xxxxxxxxx); and/or
(iii) by the payment of all the outstanding Clawback Proportion
from the Thai Shareholder's proceeds from the sale of its
Shares (or the Shares resulting from a restructuring of the
Company, referred to in Clause 8 (b)) on the IPO;
(iv) by any payment by a Thai Shareholder of all or part of its
outstanding Clawback Proportion.
On, each occasion that any part of the Clawback Proportion is
repaid or deemed to have been repaid (or partially repaid) the
Company shall send the relevant Thai Shareholder a receipt
evidencing the repayment of the amount of the Clawback Proportion
in question.
7. TRANSFER OF SHARES AND DEFAULT
7.1 Restrictions on Thai Shareholders
During the Lock-up Period, no Thai Shareholder may, without obtaining
written prior approval from the Board, transfer any of its Pledged Shares
or create any Encumbrance over any or the Pledged Shares other than
pursuant to the provisions of this Agreement and the Pledge.
Any transfer or Encumbrance (or purported transfer or Encumbrance) of or
over the Pledged Shares not made in accordance with the provisions of this
Agreement or the Pledge shall be null and void and shall entitle Xxxxxxxxx
to enforce the relevant Pledge.
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7.2 Default of Thai Shareholders.
A Thai Shareholder shall be in default for the purposes of this Agreement
if:
(a) in relation to TTC, a Change in Control occurs in relation to TTC
without the prior written consent of Xxxxxxxxx which shall not be
unreasonably withheld;
(b) it breaches Clause 7.1;
(c) pursuant to Clause 3.02 of the Share Purchase Agreement, within 180
days after the Effective Date, (a) PriceWaterhouseCoopers Limited,
Thailand certify that the Liabilities (as defined in the Share
Purchase Agreement) of TMT as at Completion exceed the Liabilities as
shown in the Audited Accounts and the Management Accounts provided
under the Share Purchase Agreement and Schedule 2 and the Attachment
to the Share Purchase Agreement as at Completion on account of the
failure by the Thai Shareholders (or any of them) to extinguish or
limit any Liability as required under the terms of the Share Purchase
Agreement or (b) the Company determines that any of the Assumed
Liabilities referred to in paragraphs (a) and (b) of Schedule 2 of the
Share Purchase Agreement are not supported by valid evidences of debt
satisfactory to the Company unless in either case the Thai
Shareholders or any of them extinguish such the liability in full
within 60 days of the date on which the liability is discovered and
notified to the Thai Shareholders;
(d) it deliberately takes any action, or deliberately refrains from taking
any action, which causes harm to the Project;
(e) it commits a breach of any provision of this Agreement, Share Purchase
Agreement or Pledge applicable to it and fails to remedy such breach
within 60 days (or such shorter period as is reasonable in the
circumstances) of being required in writing to do so by Xxxxxxxxx;
(f) any party (other than CGP) defaults in its obligations under the
Services Agreement;
(g) it or a majority shareholder in it (each a "Relevant Party") becomes
bankrupt or insolvent or stops payment to or makes an arrangement with
its creditors generally, or any resolution is passed for the winding
up or bankruptcy (other than a winding up for the purpose of
reconstruction or amalgamation) of a Relevant Party or any petition
or proceedings to wind up that Relevant Party has been admitted by a
competent court of law or it ceases to exist or there is an attachment
of or the levy of execution on a substantial part of the assets or
business of that Relevant Party, or an encumbrancer takes possession
of or a receiver, trustee, administrator or similar officer is
appointed over all or substantial part of its assets or business;
(h) it directly or indirectly enters into an arrangement that competes
with the business carried on by TMT.
13
7.3 Option to Purchase Shares on Default
If any Thai Shareholder is in default within the meaning of Clause 7.2 (the
"Defaulting Party") Xxxxxxxxx may, at any time after becoming aware of such
default purchase or designate a person to purchase, or call on GMRP to
purchase, the Defaulting Party's Pledged Shares at a price of Baht 1 per
Share. If GMRP purchases such Shares, Xxxxxxxxx will provide to GMRP the
purchase price (in Baht). Upon completion of such acquisition GMRP shall
hold the defaulting Thai Shareholder's Shares and shall transfer such
Shares to Xxxxxxxxx __ Xxxxxxxxx'x designated person (as notified by
Xxxxxxxxx to GMRP in writing) and shall otherwise deal with such Shares in
the manner specified by Xxxxxxxxx (or its designated person) in a written
notice to GMRP.
The rights of Xxxxxxxxx under this Clause shall be in addition to and
without prejudice to their rights to claim damages and other remedies
against the Defaulting Party.
For the avoidance of doubt a default by one Thai Shareholder shall not be
deemed to be a default by the others.
7.4 Rights of First Refusal - Thai Shareholders Shares
(a) If, at any time after the Lock-up Period a Thai Shareholder wishes to
transfer any Shares, it shall offer them to Xxxxxxxxx or its
designee, by serving a transfer notice ("Transfer Notice") on
Xxxxxxxxx stating the number of Shares ("Offer Shares") which it
proposes to sell and:
(i) the price and other terms, if any, at which it is willing to sell
the Offer Shares, such price not being higher or on terms more
onerous than those to any bona fide third person offering to buy
the Offer Shares (the "Prospective Purchaser");
(ii) details of the terms of any bona fide offer it has received from
the Prospective Purchaser;
(iii) the identity of the Prospective Purchaser and of its ultimate
parent company and beneficial owner and/or the true buyer (if
known to be different).
(b) Within 21 days after the Transfer Notice is given:
(i) if the Transfer Notice is accompanied by details of a bona fide
offer, Xxxxxxxxx may require the Thai Shareholder to produce to
it such further evidence as it may reasonably require to enable
it to establish the good faith of the offer by the Prospective
Purchaser;
(ii) if the Transfer Notice is not accompanied by details of a bona
fide offer, Xxxxxxxxx and the Thai Shareholder shall negotiate a
value for the Offer Shares in good faith. Failing agreement on
such value within 60 days of the date of the Transfer Notice,
Xxxxxxxxx may serve on the Thai Shareholder and the Company a
notice requiring the Fair Value of the Offer Shares to be
determined ("Valuation Notice").
14
(c) Within a period of 21 days after any Transfer Notice is given or
within a period of 7 days after the date of provision of such further
evidence or information as may be requested under Clause 7.4(b)(i)
(whichever is the later), Xxxxxxxxx shall be entitled to serve a
purchase notice ("Purchase Notice") on the Thai Shareholder stating:
(i) that it wishes to purchase the Offer Shares on the terms stated
in the Transfer Notice; or
(ii) that it declines the Offer Shares.
(d) If a Thai Shareholder has not received a Purchase Notice in respect of
the total number of Offer Shares, it may sell all (but not less than
all) of the Offer Shares not so purchased to the Prospective Purchaser
at not less than the price and on the terms no less onerous than those
set out in the Transfer Notice provided that such right shall lapse on
the 120th day after the date of the Transfer Notice.
(e) In the event that a Valuation Notice is served under the provisions of
Clause 7.4(b) (ii) then, the provisions of Schedule A shall apply. The
Company shall within 5 Business Days of receipt of the Valuers'
determination notify the Thai Shareholder and Xxxxxxxxx of the Fair
Value. Xxxxxxxxx shall have the option, exercisable within 14 days of
the Company's notice under this Clause, to serve a purchase notice on
the Thai Shareholder stating that it wishes to buy the Offer Shares.
7.5 Transfer of Free Shares by Xx. Xxxxxxx
Notwithstanding any provision of this Agreement, Xx. Xxxxxxx may transfer
all his Shares or rights to receive all such Shares to Mr. Virat, upon
giving 7 Business Day's written notice to Xxxxxxxxx (with a copy to the
Company and TTC). Upon such transfer Mr. Virat shall assume all of Xx.
Xxxxxxx'x obligations under this Agreement and shall enter into a pledge in
respect of such Shares.
7.6 Put and Call Option - GMRP Shares
(a) GMRP shall have the right to require Xxxxxxxxx to purchase, or procure
the purchase, of all or some of the GMRP Shares ("Put Option") at a
price determined in accordance with Clause 7.6(e).
(b) Xxxxxxxxx (or its designated person) shall have the right to purchase
all or some of the GMRP Shares ("Call Option") at a price determined
in accordance with Clause 7.6(e).
(c) The Put Option or the Call Option may be exercised at any time by a
written notice ("Option Notice") from the party exercising such option
to the other Party. The effective date of either such exercise shall
be the date of the Option Notice.
15
(d) Any transfer of the GMRP Shares pursuant to the exercise of an
option under this Clause shall, subject to any agreement between the
Parties to the contrary, be completed within a period of 30 days from
the date of the Option Notice.
(e) If the Put Option or Call Option is exercised then Xxxxxxxxx shall pay
GMRP an amount equivalent to the cost to GMRP of acquiring the GMRP
Shares which are the subject of an Option Notice. Such payment shall
be deemed to have been made by the cancellation of a proportionate
amount the Xxxxxxxxx Loan.
(f) If the Put or Call Option is exercised in respect of all of the GMRP
Shares, GMRP shall transfer to Xxxxxxxxx, or its designated person,
any Shares that it is obliged to transfer to the Thai Shareholders on
the Second Issue Date, as specified in Clause 3. The consideration for
such transfer shall be the cancellation in full of the "A" Share Loan.
Xxxxxxxxx shall bear the reasonable legal costs of GMRP in effecting
such transfer. GMRP shall not have any right to transfer any of such
Shares other than in accordance with the provisions of this Agreement.
(g) GMRP shall not have any right to transfer any of the GMRP Shares
other than pursuant to the Put Option or the Call Option.
8. FURTHER OBLIGATIONS OF THE PARTIES
8.1 Further Assurance
The Parties shall do and execute or procure to be done and execute all such
further acts, deeds, things and documents as may be necessary to give full
effect to the terms of this Agreement.
8.2 Exchange of Information
The Thai Shareholders shall promptly notify all Xxxxxxxxx and the Company
of any matters coming to its notice relating to the Project including any
threat to a member of the Group's title to or enjoyment of licences,
authorisations, assets or property or the conduct of its business.
8.3 CAT Shares and Restructuring of the Group
(a) The Parties acknowledge that CAT may require a legally binding arrangement
(the "CAT Option") under which CAT may, at any time during the Relevant
Period, exchange all or some of its shares in the capital of TMT for Shares
(the "Share Swap"). Each of the Parties recognizes that the CAT Option is
in the best interests of the Company and the Project, notwithstanding that
the Share Swap may dilute its legal or economic interest in the Company.
Accordingly, each Party agrees that, notwithstanding any other provision
of this Agreement, it accepts the terms of the CAT Option and that it will,
without raising any objection or challenge, take all action required to be
taken by the Shareholders to execute and perfect the Share Swap, when CAT
exercises the CAT Option.
16
(b) Each Party agrees to a restructuring of the Group or the acquisition by the
Group of an interest in another company or group of companies, provided
that such Party's interest in the restructured or enlarged entity is of at
least equivalent economic value as that Party's interest in the Company
immediately prior to such restructuring or acquisition. Xxxxxxxxx'x funding
obligation under Clause 6.2 shall apply to the Thai Shareholders' interest
in the restructured or enlarged entity, subject to the provisions of this
Agreement.
8.4 Agreement Terminates on Winding Up or IPO
(a) This Agreement shall terminate on the winding up or IPO of the Company
(the "Termination Date").
(b) This Agreement shall terminate with respect to a Party if that Party
ceases to have any legal and beneficial interest in any Shares (except
the provisions of Clause 10, which shall continue to bind such Party).
The provisions of this Clause shall be without prejudice to the rights of
the other Parties in respect of any breach of this Agreement prior to
termination or the withdrawal by a Party under paragraph (b).
8.5 Obligations of the Company
The Company undertakes that it will not register any person as a member of
the Company unless Shares have been issued or transferred to that person
in accordance with the provisions of this Agreement.
9. DISPUTE RESOLUTION
9.1 Consultation
In the case of any dispute or difference arising out of or in connection
with this Agreement or its performance, including any question regarding
its existence, validity or termination (a "Dispute"), the Parties shall
first endeavour to reach an amicable settlement through mutual
consultations and negotiations. If the Parties cannot reach an amicable
settlement within 45 Business Days from the date on which the Dispute arose
(except as to any matter for which express provisions are made in this
Agreement), any of the Parties may refer the Dispute to in accordance with
Clause 9.2.
9.2 Referral to courts
(a) Any Disputes that cannot be settled under Clause 9.1 shall be
submitted to arbitration at the request of a Party upon written notice
to that effect to the other Party/Parties. Such arbitration shall be
conducted in accordance with the Rules of the International Chamber
of Commerce (the "ICC Rules").
17
(b) The Party submitting the Dispute to arbitration shall specify in its
notice to the other Parties the name of one arbitrator appointed by
it. Within 30 days of the receipt of notice, the other Parties shall
jointly appoint a second arbitrator. If those Parties are unable to
agree on the second arbitrator, the within such 30 day period, the
second arbitrator shall be appointed in accordance with the ICC
rules. The third arbitrator (who will act as the chairman) shall be
nominated by the arbitrators appointed as aforesaid or, failing such
nomination within 30 days of the appointment of the last arbitrator,
shall be appointed in accordance with the ICC Rules.
(c) The language of the arbitration shall be English. The venue of the
arbitration shall be London.
(d) The Parties agree that:
(i) the award of the arbitrators shall be final and binding upon
them; and
(ii) none of the Parties shall be entitled to commence or maintain any
action in a court of law upon any matter in dispute arising from
or in relation to this Agreement, except for the enforcement of
an arbitral award granted pursuant to this Clause if required or
as permitted under Clause 10.2.
10. CONFIDENTIALITY
10.1 Agreement Confidential
The Thai Shareholders and GMRP agree to keep secret and confidential and
not to disclose to any third party without the prior written consent of
Xxxxxxxxx any information (including the information as to the execution of
this Agreement) or documents (including this Agreement and other related
agreements, documents, material or correspondence that the Parties or any
of them may execute) relating to the operation of the business of the Group
or the Project.
Xxxxxxxxx shall be responsible for any press release or other public
announcement, written or oral, relating to this Agreement or the Project.
10.2 Injunctive Relief
The Thai Shareholders and GMRP acknowledge that no adequate monetary
compensation may be available in respect of a breach of this Clause.
Accordingly Xxxxxxxxx shall be entitled, in addition to any other right or
remedy available to it under this Agreement or at law, to injunctive relief
from appropriate legal bodies in the event of a breach or threatened breach
by the Thai Shareholders or GMRP of this Clause.
10.3 Survival
The rights, duties and obligations contained in this Clause shall survive
termination of this Agreement and shall continue to bind any Party who
withdraws from this Agreement under Clause 8.4 (b).
18
11. PRECEDENCE OF THIS AGREEMENT
If any provision of the Memorandum of Association of the Company or the
Articles at any time conflicts with any provision of this Agreement then,
to the extent permitted by law, as between the Parties the provisions of
this Agreement shall prevail.
12. NOTICES
Any notice to be given by any Party to this Agreement should be in writing
and shall be deemed duly served if delivered personally or sent by fax or
by prepaid registered post (airmail in the case of international mail) to
the addressee at the address or fax number set opposite its name below or
at such other address or fax number as the Party to be served may have
notified as its address or fax number for service:
Xxxxxxxxx
To: Xxxxxxxxx Telecommunications Investments Limited
18/F Two Harbourfront
00 Xxx Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxx,
Fax: (000)0000 0000
Attn.: The Group Managing Director
And
Xxxxxxxxx Whampoa Agency Limited
00xx Xxxxx, Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Fax: (000)0000 0000
Attn.: The Company Secretary
GMRP:
To : 00xx-00xx Xxxxx, 000 Xxxx XX Xxxx,
Xxxxx, Xxxxxxx, Bangkok
Attn: Mr. Wisit Kanjanopas
Tawan Telecom Company Limited
To: Tawan Telecom Company Limited
000 Xxx 00 Xxxxxxxx Xxxx 3 Bldg.,
19th Fl., Bangna-Trad Rd., Km. 3.5 Xxxxxx,
Xxxxxxx 00000 Xxxxxxxx
Attn: Mr. Anuwat Laikijrung
19
Mr. Virat Ovararint
To: 189 X.X. Xxxxx Xxxxxxxxx 00 Xxxx,
Xxxxxxxxxxxx, Xxxxxxx,
Xxxxxxx
Xx. Xxxxxxx Boonsoong
To: 189 X.X. Xxxxx Xxxxxxxxx 00 Xxxx,
Xxxxxxxxxxxx, Xxxxxxx,
Xxxxxxx
The Company
To: 22nd-25th Floor, 990 Rama IV Road,
Silom, Bangrak, Bangkok
Attn: Mr. Wisit Kanjanopas
With a copy to
To: Xxxxxxxxx Telecommunications International Limited
18/F Two Harbourfront
00 Xxx Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxx,
Fax: (000)0000 0000
Attn.: The Group Managing Director
And
Xxxxxxxxx Whampoa Agency Limited
00xx Xxxxx, Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Fax: (000)0000 0000
Attn: The Company Secretary
Any notice sent by fax shall be deemed served on confirmation of successful
transmission in the case of a fax, and any notice served by registered post
shall be deemed served 10 days after posting airmail. In proving the
service of any notice it will be sufficient to prove, in the case of
service by registered post, that such letter was properly stamped,
registered, addressed and placed in the post.
20
13. MISCELLANEOUS
13.1 Legal and other costs
Each Party shall be responsible for the legal fees, costs and expenses
incurred by it in the preparation, negotiation and execution of this
Agreement.
13.2 Complete Agreement
This Agreement and any agreements to be entered into pursuant hereto (the
"Relevant Agreements"), embody all the terms and conditions agreed upon
between the Parties. As from the Effective Date this Agreement and the
Relevant Agreements supersede and cancel in all respects all previous
correspondence, understandings and agreements between the Parties with
respect to the subject matter hereof, whether such be written or oral.
13.3 Unenforceable Provisions
In the event that any provision contained in this Agreement or any part
thereof shall for any reason be held to be invalid or unenforceable in
any respect under the laws of Thailand, such invalidity or unenforceability
shall not affect any other provisions of this Agreement or the remaining
parts thereof which shall then be construed as if such unenforceable
provision or part thereof had never been contained herein.
13.4 No Partnership
Nothing herein shall be taken to constitute or create a partnership among
any of the Parties. No Party shall be deemed to be the agent of the other
and none of the Parties shall have any authority to bind the other Party in
any way except as provided in this Agreement.
13.5 Amendment in Writing
This Agreement shall not be varied amended or supplemented, except by a
written instrument-signed by or on behalf of all the Parties to be bound.
13.6 No Assignment
No Party other than Xxxxxxxxx may transfer any of its rights or obligations
under this Agreement, except pursuant to a transfer of Shares permitted
under Clauses 3.3 and 7.
13.7 No Waiver
Failure of any Party at any time to require performance by any other Party
of any provision of this Agreement shall in no way affect the right of such
Party to require performance of that or any other provision. Any waiver by
a Party of any breach of this Agreement shall not be construed as a waiver
by such Party of any continuing or succeeding breach of such provision or a
waiver of the provision itself or of any other right under this Agreement.
21
13.8 Counterparts
This Agreement may be executed in several counterparts, and any single
counterpart or set of counterparts, signed in either case by all of the
Parties shall be deemed to be an original, and all taken together shall
constitute one and the same instrument.
13.9 Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of Thailand.
IN WITNESS WHEREOF this Agreement was executed by the Parties on the day and
year first above written.
Signed by
) [Signature]
) --------------------------
For and on behalf of )
Xxxxxxxxx Telecommunications )
Investments Limited in the )
presence of: )
[Signature]
---------------------
Signed by ) [Signature]
) --------------------------
)
For and on behalf of )
GMRP (Thailand) Limited )
in presence of: )
[Signature]
---------------------
Signed by [SEAL]
) [Signature]
) --------------------------
)
For and on behalf of )
Tawan Telecom Company Limited )
in the presence of: )
[Signature]
---------------------
Signed by ) [Signature]
/s/ Prayong Boonsoong ) --------------------------
--------------------- )
Xx. Xxxxxxx Boonsoong )
Signed by ) [Signature]
/s/ Virat Ovararint ) --------------------------
--------------------- )
Mr.Virat Ovararint )
Signed by ) [Signature]
) --------------------------
)
For and on behalf of )
i-Mobile Holdings Company Limited )
in the presence of: )
[Signature]
---------------------
22
SCHEDULE A - FAIR VALUE
Where Fair Value falls to be determined under this Agreement in relation to any
Shares, it shall be the average of the two valuations provided by the London or
New York offices of Xxxxxxx Sachs and Xxxxxx Xxxxxxx. The valuation by Xxxxxxx
Sachs and Xxxxxx Xxxxxxx ("the Valuers") shall be done in accordance with the
following provisions of this Schedule:
1. The Valuers shall be jointly instructed by the Shareholder whose Shares are
to be transferred ("Transferor") and Xxxxxxxxx to value the Shares on the
basis of an arm's length sale between a willing buyer with the funds to buy
and a willing seller.
2. The Valuers shall be directed to advise the Company, the Transferor and
Xxxxxxxxx of their determination of the fair value of the Shares within 45
days or as soon as practicable thereafter.
3. The decision of the Valuers shall be final and binding on the Transferor
and Xxxxxxxxx and they shall be deemed to act as experts and not as
arbitrators.
4. The costs of the Valuers shall be borne equally by the Tranferor and
Xxxxxxxxx.
5. The Transferor and Xxxxxxxxx shall each be entitled to make such written
submissions as the Valuers may accept and each of them and the Valuers
shall have such access to the books and records of the Company as shall be
reasonably required in connection with such determination.
23
Schedule B - The Agreed Proportions
1. The Initial Shares
Tawan Telecom Company Limited 3.75%
Mr. Virat 1.875%
Xx. Xxxxxxx 1.875%
Total: 7.5%
2. After the Second Issue Date
Tawan Telecom Company Limited 5%
Mr. Virat 2.5%
Xx. Xxxxxxx 2.5%
Total: 10%
24
Schedule C - The Related Parties Liabilities.
Amount
Related Party THB'000
------------- ---------
Tawan Far-East Telecom Co., Ltd. 26,231.7
Tawan Telecom Company Limited 99,595.9
Inter-Far East Co., Ltd. 9,913.9
MVO Iner-holding Co., Ltd. and Mr. Virat Ovararint 14,471.9
Total 150,213.4
=========
Less any amount repaid by TMT between 30 September 2000 and the Effective Date.
25
Schedule D - Form of Pledge
26
THIS SHARE PLEDGE AGREEMENT is made as of (date), 2000.
BETWEEN
(1) Tawan Telecom Company Limited, a company incorporated in Thailand with its
registered office at 000 Xxx 00 Xxxxxxxx Xxxx 3 Building, 19th Floor,
Bangna-Trad Road Km. 3.5, Bangna, Prakanong, Bangkok represented by Xx.
Xxxx Pativechvong also known as "Xx. Xxxxxxx Pootana", Mr. Sukhato
Poummalee and Mr. Anuwat Laikijrung (hereinafter called "Pledgor") and
(2) Xxxxxxxxx Telecommunications Investments Limited, a company incorporated in
Mauritius whose registered office is at Les Cascades Building, Xxxxx Xxxxxx
Street, Port Louis, Mauritius (hereinafter called the "Pledgee").
WHEREAS:
A. The Pledgor has or will have obligations to the Pledgee or its affiliates
and liabilities stipulated under the Shareholders Agreement,
B. On the date hereof the Pledgor holds the Initial Shares, and
C. The Pledgor has agreed to furnish the Pledgee with a security for the due
performance of the Obligations by way of a pledge of the Initial Shares,
Second Issue Shares and Further Shares.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, the Parties hereby agree as
follows:
1. Definitions and Interpretation
(1) In this Agreement, including the Recitals, (unless the context otherwise
requires) the following words and expressions shall have the following
meanings.
"Company" means i-Mobile Holdings Co., Ltd.;
"Event of Default" means any one of the events specified in clause 7.2 of
the Shareholders Agreement and includes a breach of this Agreement;
"Further Shares" means any shares, stock and/or debentures and/or cash
issued to the Pledgor, as described in Clause 2(3); during the term of this
Agreement;
"Initial Shares" means 37,500 shares in the Company, numbered from 490001
to 527500, held by the Pledgor on the date hereof, of which a copy of share
certificates is attached hereto as Schedule 1;
"Obligations" means the obligations and liabilities of the Pledgor under or
pursuant to the terms of the Shareholders Agreement during the Lock-up
Period;
-1-
"Second Issue Shares" means all the shares in the Company held by the
Pledgor from the Second Issue Date;
"Shareholders Agreement" means the shareholders agreement in respect of the
Company dated 16 October 2000 entered into among the Pledgee, GMRP
(Thailand) Ltd., Xx. Xxxxxxx Boonsoong and Mr. Virat Ovararint, the Company
and the Pledgor;
"TMT" means Tawan Mobile Telecom Co., Ltd.
(2) Unless the context otherwise requires or unless otherwise defined herein,
words and expressions defined in the Shareholders Agreement and used in
this Agreement shall bear the same meaning herein as that given to them in
the Shareholders Agreement.
(3) The headings used in this Agreement are inserted for convenience only and
shall not affect its construction or interpretation.
2. Pledge of the Shares
(1) As security for the Obligations, the Pledgor hereby pledges to the Pledgee
the Initial Shares and all rights and benefits attached thereto, and shall
on the Second Issue Date, and on any other date on which Further Shares are
issued to the Pledgor, pledge to the Pledgee the Second Issue Shares or
Further Shares (as the case may be) and all rights and benefits attached
thereto.
(2) The Pledgor undertakes to:
(a) immediately deliver to the Pledgee the share certificate(s) evidencing
the shareholding and ownership of the Initial Shares; and immediately
upon receiving the share certificates evidencing the shareholding and
ownership of the Second Issue Shares or Further Shares deliver the
same to the Pledgee;
(b) submit notices of the pledge of the Initial Shares, the Second Issue
Shares and the Further Shares to the Company in the form as set forth
in Schedule 2 forthwith upon the issue thereof to the Pledgor and
procure that the pledges of the Initial Shares, the Second Issue
Shares and the Further Shares are entered into the share register of
the Company forthwith upon the issue thereof to the Pledgor; and upon
demand by the Pledgee, and at the entire cost and expense of the
Pledgor, immediately make, execute, do and perform all such acts,
deeds, documents, instruments of transfer, matters and things that the
Pledgee or its legal advisers shall consider necessary, proper or
desirable to ensure that the Pledgee is duly registered as the pledgee
to the Initial Shares, the Second Issue Shares and the Further Shares;
and
(c) take all steps necessary at its own cost and expense, to execute and
deliver such further instruments and documents as the Pledgee may
require for the purpose of obtaining the full benefit of the security
intended to be conferred under this Agreement.
(3) If at any time by reason of amalgamation, takeover, bonus or rights issue
or for any other reasons whatsoever, the Initial Shares or the Second Issue
Shares are represented by additional or replacement share certificate(s),
shares or stocks, or any form of debentures and/or cash, or other shares
are to accrue to or be declared in
-2-
respect of the Initial Shares or the Second Issue Shares, ("Further
Shares"), such additional or replacement share certificate(s), shares and
stocks or debentures shall forthwith upon receipt by the Pledgor be
deposited with and pledged to the Pledgee.
3. Continuing Security
(1) The pledge under this Agreement shall be a continuing security and shall
remain in full force and effect until the later of (i) the date on which
the Obligations have been fully complied with or discharged to the
reasonable satisfaction of the Pledgee and (ii) the expiry of the Lock-up
Period, notwithstanding the insolvency, dissolution, liquidation or any
incapacity or change in the constitution or status of the Pledgor.
4. Representations, Warranties and Undertakings
The Pledgor expressly agrees, represents and warrants to and undertakes with
the Pledgee that during the term of this Agreement:-
(a) the Initial Shares, the Second Issue Shares and the Further Shares are or
will be owned by the Pledgor;
(b) the Initial Shares, the Second Issue Shares and the Further Shares are and
will be free from and clear of any pledge, charge or encumbrance whatsoever
other than the pledge as contemplated under this Agreement;
(c) the Pledgor has the full power and authority to pledge the Initial Shares,
the Second Issue Shares and the Further Shares to the Pledgee and to
execute this Agreement;
(d) all necessary authorisations, approvals and consents for the Pledgor to
pledge the Initial Shares, the Second Issue Shares and the Further Shares
and to execute this Agreement have been obtained; and
(e) the Pledgor shall not, without obtaining prior written approval from the
Pledgee, sell, transfer or otherwise dispose of the Initial Shares, the
Second Issue Shares and the Further Shares or any portion thereof other
than the transfer as contemplated under this Agreement.
5. Discharge of the Pledge
Upon the later of (i) the Expiry of the Lock-up Period and (ii) the date on
which the Obligations are fully satisfied (in the reasonable opinion of the
Pledgee), the Pledgee shall, at the cost and expense of the Pledgor, release the
pledge created hereunder.
6. Event of Default
(1) Upon an occurrence of an Event of Default and at any time thereafter the
Pledgee is entitled to take all necessary actions to enforce the pledge by
realizing the Initial Shares, the Second Issue Shares and the Further
Shares by public auction in accordance with the law. In the event that the
proceeds of the realization of such shares are insufficient to cover all
the Obligations owing to the Plegee, the Pledgor shall remain liable to
the Pledgee for any such insufficiency.
-3-
(3) The Pledgor shall provide to the Pledgee all documents required for the
transfer of the Initial Shares, the Second Issue Shares and the Further
Shares and the registration of the share transfer in the share register of
the Company, in order to ensure that the Initial Shares, the Second Issue
Shares and the Further Shares will be transferred to the person designated
by the Pledgee after enforcement of the pledge and in accordance with the
law and subject to the terms and conditions of this Agreement. In addition,
on the date hereof the Pledgor also provides the Pledgee with the
irrevocable share transfer document executed by the Pledgor, a copy of
which is attachment in Schedule 3 which shall be used by the Pledgee upon
the enforcement of the pledge hereunder. On the Second Issue Date and each
date on which Further Shares are issued to the Pledgor, the Pledgor shall
provide the Pledgee with an irrevocable share transfer document, executed
by the Pledgor, in respect of the Second Issue Shares and Further Shares.
7. Indemnity
The Pledgor shall indemnify the Pledgee in full on demand against all actions,
suits, claims, demands, losses, liabilities, damages, costs and expenses
whatsoever which the Pledgee may sustain or incur for or in connection with the
enforcement of the pledge created under this Agreement.
8. General
(1) No failure or delay by the Pledgee to exercise any right, power or
privilege under this Agreement, or any other document contemplated under
this Agreement shall operate as a waiver thereof nor shall any single or
partial exercise or such right, power or privilege preclude any further
exercise thereof.
(2) The illegality, invalidity or unenforceability of any provision of this
Agreement under the law of any jurisdiction shall not affect its legality,
validity or enforceability under the law of any other jurisdiction nor the
legality, validity or enforceability of any other provision of this
Agreement.
9. Governing Law
This Agreement and the rights and obligations of the parties hereunder shall be
governed by and interpreted and construed in all respects in accordance with the
laws of the Kingdom of Thailand.
10. Stamp Duty and Expenses
All stamp duties, fees and expenses incurred in connection with this Agreement
shall be for the account of the Pledgor and the Pledgor shall promptly upon
demand reimburse the Pledgee in full for costs expended or the same.
-4-
IN WITNESS WHEREOF this Agreement was executed by the Parties on the day and
year first above written.
Signed by )
)
)
For and on behalf of )
Tawan Telecom Company Limited )
in the presence of: )
Signed by )
)
)
For and on behalf of )
Xxxxxxxxx Telecommunications Investments Limited )
in the presence of: )
-5-
Schedule 1
COPY OF SHARE CERTIFICATES OF INITIAL SHARES
-6-
Class A Shares
Certificate Number 9 Shares 37,500
i-Mobile Holding Co., Ltd. [SEAL]
(Incorporated under the Laws of the Kingdom of Thailand)
Registered Capital : 10,000,000 Baht in 590,000 Ordinary Shares of 10 Baht each
410,000 Preference Shares
This is to Certify that Tawan Telecom Co., Ltd 000 Xxx 00, Xxxxxxxx Xxxx 3
Building, 19th Floor, Bangna-Trad Road, Khwaeng Bangna, Khet Bangna, Bankok
Metropolis is the registered holder of 37,500 Shares numbered from 490001 to
527500 both inclusive) of Baht 10 each in the above Company, subject to the
Memorandum and Articles of Association, and that the sum of Baht 10 has been
paid on each of the said Shares.
GIVEN under the seal of the Company this 16 day of October __, 2000
Transfer or sale of shares represented by this
share certificate is subject to the
restrictions contained in the Articles of
Association of the company
The seal of the Company was hereunto affixed in presence of
[Signature] DIRECTOR [SEAL]
-----------------------------
Schedule 2
NOTICE OF PLEDGE OF SHARES
October 2000
------
To: i-Mobile Holdings Co., Ltd.("Company")
We, Tawan Telecom Company Limited a limited company incorporated under the laws
of Thailand, with its registered office at 000 Xxx 00 Xxxxxxxx Xxxx 3 Building,
19th Floor, Bangna-Trad Road Km. 3.5, Bangna, Prakanong, Bangkok (hereinafter
called "Pledgor"), agrees to pledge the shares of the Company, described below,
to Xxxxxxxxx Telecommunications Investments Limited, a company incorporated in
Mauritius whose registered office is at Les Cascades Building, Xxxxx Xxxxxx
Street, Port Loius, Mauritius, (hereinafter called "Pledgee") to secure the
Pledgor's obligations to the Pledgee under the Share Purchase Agreement dated 16
October 2000 and the Shareholders Agreement in respect of the Company dated 16
October 2000.
List of pledged shares
----------------------------------------------------------------------------------------
Par Value Money paid on
Share certificate No. Number of shares Serial Number (Baht) each share (Baht)
----------------------------------------------------------------------------------------
9 37,500 490001-527500 10 10
----------------------------------------------------------------------------------------
By this Notice, we, the Pledgor, inform the Company of the pledge of the
abovementioned shares and request that it be entered in the Company's Share
Register. The pledge will stand until the Pledgee informs the Company that the
obligations have been fulfilled, the Pledgors have been released from the
obligations, or the obligations are cancelled and the Pledgee wants the Company
to nullify the entry in the Company's Share Register.
If the Pledgee surrenders the share certificate and shows satisfactory evidence
of enforcement of the pledge to the Company, we ask that the Company enter the
name of the person who is entitled to hold the shares by the said enforcement in
the Company's Share Register.
Yours faithfully,
For and on behalf of
Tawan Telecom Company Limited
----------------------------------------
(Xx. Xxxx Pativechvong also known as "Xx. Xxxxxxx Pooiana")
----------------------------------------
(Mr. Sukhato Poummalee)
----------------------------------------
(Mr. Anuwat Laikijrung)
-7-
Schedule 3
COPY OF SHARE TRANSFER DOCUMENT
-8-
SHARE TRANSFER DOCUMENT
I/We Tawan Telecom Company Limited
of 000 Xxx 00 Xxxxxxxx Xxxx 3 Building, 19th Floor, Bangna-Trad Road Km. 3.5,
Bangna, Prakanong, Bangkok
("transferor") holder of share(s) in i-Mobile Holdings Co., Ltd.
hereby transfer to
--------------------------------------------------------------
of
------------------------------------------------------------------------------
("transferee") a total of 37,500 share(s),
Nos. 490001 to 527500, par value per share
Baht 10, paid up 100%.
IN WITNESS WHEREOF each undersigned party sets its signature hereto in the
presence of witnesses.
TRANSFEROR TRANSFEREE
Signed on Signed on
---------------------------- -------------------------------
At Bangkok At
------------------------------------
Tawan Telecom Company Limited
------------------------------------- ----------------------------------------
(Xx. Xxxx Pativechvong also known as ( )
"Xx. Xxxxxxx Pootana")
------------------------------------- ----------------------------------------
(Mr. Sukhato Poummalee) ( )
------------------------------------- ----------------------------------------
(Xx. Xxxxxx Laikijrung) ( )
Witness Witness
------------------------------ ---------------------------------
PTO
-9-
THIS SHARE PLEDGE AGREEMENT is made as of (date) October 2000.
BETWEEN
(1) Xx. Xxxxxxx Boonsoong holding an I.D. card no. 3 8399 00425 755 issued by
Phuket Province residing at 0/0 Xxxxxxxxx Xxxx, Xxxxxx Xxxxxxxx, Xxxxxx
Muang, Phuket Province ("Xx. Xxxxxxx") and Mr. Virat Ovararint holding an
I.D. card no. 3 1009 04705 38 4 issued by Khet Suanluang residing at 00 Xxx
Xxxxxxxxxx 00, Xxxxxxxxxx Xxxx, Xxxxxxx Xxxxxxxxx, Xxxx Suanluang, Bangkok
("Mr. Virat")(Xx. Xxxxxxx and Mr. Virat hereinafter collectively called the
"Pledgor"), and
(2) Xxxxxxxxx Telecommunications Investments Limited, a company incorporated in
Mauritius whose registered office is at Les Cascades Building, Xxxxx Xxxxxx
Street, Port Louis, Mauritius (hereinafter called the "Pledgee").
WHEREAS:
A. The Pledgor has or will have obligations to the Pledgee or its affiliates
and liabilities stipulated under the Shareholders Agreement,
B. On the date hereof the Pledgor holds the Initial Shares, and
C. The Pledgor has agreed to furnish the Pledgee with a security for the due
performance of the Obligations by way of a pledge of the Initial Shares,
Second Issue Shares and Further Shares.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, the Parties hereby agree as
follows:
1. Definitions and Interpretation
(1) In this Agreement, including the Recitals, (unless the context otherwise
requires) the following words and expressions shall have the following
meanings -
"Company" means i-Mobile Holdings Co., Ltd.;
"Event of Default" means any one of the events specified in clause 7.2 of
the Shareholders Agreement and includes a breach of this Agreement;
"Further Shares" means any shares, stock and/or debentures and/or cash
issued to the Pledgor, as described in Clause 2(3), during the term of this
Agreement;
"Initial Shares" means 37,500 shares in the Company, numbered from 527501
to 546250 and from 546251 to 565000, held by the Pledgor on the date
hereof, of which a copy of share certificates is attached hereto as
Schedule);
"Obligations" means the obligations and liabilities of the Pledgor under or
pursuant to the terms of the Shareholders Agreement during the Lock-up
Period;
"Second Issue Shares" means all the shares in the Company held by the
Pledgor from the Second Issue Date;
"Shareholders Agreement" means the shareholders agreement in respect of the
Company dated 16 October 2000 entered into among the Pledgee, GMRP
(Thailand) Ltd., Tawan Telecom Company Limited, the Company and the
Pledgor;
"TMT" means Tawan Mobile Telecom Co., Ltd.
(2) Unless the context otherwise requires or unless otherwise defined herein,
words and expressions defined in the Shareholders Agreement and used in
this Agreement shall bear the same meaning herein as that given to them in
the Shareholders Agreement.
(3) The headings used in this Agreement are inserted for convenience only and
shall not affect its construction or interpretation.
2. Pledge of the Shares
(1) As security for the Obligations, the Pledgor hereby pledges to the Pledgee
the Initial Shares and all rights and benefits attached thereto, and shall
on the Second Issue Date, and on any other date on which Further Shares are
issued to the Pledgor, pledge to the Pledgee the Second Issue Shares or
Further Shares (as the case may be) and all rights and benefits attached
thereto.
(2) The Pledgor undertakes to:
(a) immediately deliver to the Pledgee the share certificate(s) evidencing
the shareholding and ownership of the Initial Shares; and immediately
upon receiving the share certificates evidencing the shareholding and
ownership of the Second Issue Shares or Further Shares deliver the
same to the Pledgee;
(b) submit notices of the pledge of the Initial Shares, the Second Issue
Shares and the Further Shares to the Company in the form as set forth
in Schedule 2 forthwith upon the issue thereof to the Pledgor and
procure that the pledges of the Initial Shares, the Second Issue
Shares and the Further Shares are entered into the share register of
the Company forthwith upon the issue thereof to the Pledgor; and upon
demand by the Pledgee, and at the entire cost and expense of the
Pledgor, immediately make, execute, do and perform all such acts,
deeds, documents, instruments of transfer, matters and things that the
Pledgee or its legal advisers shall consider necessary, proper or
desirable to ensure that the Pledgee is duly registered as the pledgee
to the Initial Shares, the Second Issue Shares and the Further Shares;
and
(c) take all steps necessary at its own cost and expense, to execute and
deliver such further instruments and documents as the Pledgee may
require for the purpose of obtaining the full benefit of the security
intended to be conferred under this Agreement.
(3) If at any time by reason of amalgamation, takeover, bonus or rights issue
or for any other reasons whatsoever, the Initial Shares or the Second Issue
Shares are represented by additional or replacement share certificate(s),
shares or stocks, or any form of debentures and/or cash, or other shares
are to accrue to or be declared in
-2-
respect of the Initial Shares or the Second Issue Shares ("Further
Shares"), such additional or replacement share certificate(s), shares and
stocks or debentures shall forthwith upon receipt by the Pledgor be
deposited with and pledged to the Pledgee.
3. Continuing Security
(1) The pledge under this Agreement shall be a continuing security and shall
remain in full force and effect until the later of (i) the date on which
the Obligations have been fully complied with or discharged to the
reasonable satisfaction of the Pledgee and (ii) the expiry of the Lock-up
Period, notwithstanding the insolvency, dissolution, liquidation or any
incapacity or change in the constitution or status of the Pledgor.
4. Representations, Warranties and Undertakings
The Pledgor expressly agrees, represents and warrants to and undertakes with
the Pledgee that during the term of this Agreement:-
(a) the Initial Shares, the Second Issue Shares and the Further Shares are or
will be owned by the Pledgor;
(b) the Initial Shares, the Second Issue Shares and the Further Shares are and
will be free from and clear of any pledge, charge or encumbrance whatsoever
other than the pledge as contemplated under this Agreement;
(c) the Pledgor has the full power and authority to pledge the Initial Shares,
the Second Issue Shares and the Further Shares to the Pledgee and to
execute this Agreement;
(d) all necessary authorisations, approvals and consents for the Pledgor to
pledge the Initial Shares, the Second Issue Shares and the Further Shares
and to execute this Agreement have been obtained; and
(e) the Pledgor shall not, without obtaining prior written approval from the
Pledgee, sell, transfer or otherwise dispose of the Initial Shares, the
Second Issue Shares and the Further Shares or any portion thereof other
than the transfer as contemplated under this Agreement.
5. Discharge of the Pledge
Upon the later of (i) the Expiry of the Lock-up Period and (ii) the date on
which the Obligations are fully satisfied (in the reasonable opinion of the
Pledgee), the Pledgee shall, at the cost and expense of the Pledgor, release the
pledge created hereunder.
6. Event of Default
(1) Upon an occurrence of an Event of Default and at any time thereafter the
Pledgee is entitled to take all necessary actions to enforce the pledge by
realizing the Initial Shares, the Second Issue Shares and the Further
Shares by public auction in accordance with the law. In the event that the
proceeds of the realization of such shares are insufficient to cover all
the Obligations owing to the Plegee, the Pledgor shall remain liable to
the Pledgee for any such insufficiency.
-3-
(2) The Pledgor shall provide to the Pledgee all documents required for the
transfer of the Initial Shares, the Second Issue Shares and the Further
Shares and the registration of the share transfer in the share register of
the Company, in order to ensure that the Initial Shares, the Second Issue
Shares and the Further Shares will be transferred to the person designated
by the Pledgee after enforcement of the pledge and in accordance with the
law and subject to the terms and conditions of this Agreement. In addition,
on the date hereof the Pledgor also provides the Pledgee with the
irrevocable share transfer document executed by the Pledgor, a copy of
which is attachment in Schedule 3 which Shall be used by the Pledgee upon
the enforcement of the pledge hereunder. On the Second Issue Date and each
date on which Further Shares are issued to the Pledgor, the Pledgor shall
provide the Pledgee with an irrevocable share transfer document, executed
by the Pledgor, in respect of the Second Issue Shares and Further Shares.
7. Indemnity
The Pledgor shall indemnify the Pledgee in full on demand against all actions,
suits, claims, demands, losses, liabilities, damages, costs and expenses
whatsoever which the Pledgee may sustain or incur for or in connection with the
enforcement of the pledge created under this Agreement.
8. General
(1) No failure or delay by the Pledgee to exercise any right, power or
privilege under this Agreement, or any other document contemplated under
this Agreement shall operate as a waiver thereof nor shall any single or
partial exercise or such right, power or privilege preclude any further
exercise thereof.
(2) The illegality, invalidity or unforceability of any provision of this
Agreement under the law of any jurisdiction shall not affect its legality,
validity or enforceability under the law of any other jurisdiction nor the
legality, validity or enforceability of any other provision of this
Agreement.
(3) The obligations of Xx. Xxxxxxx and Mr. Virat under this Agreement are joint
and several.
9. Governing Law
This Agreement and the rights and obligations of the parties hereunder shall be
governed by and interpreted and construed in all respects in accordance with the
laws of the Kingdom of Thailand.
10. Stamp Duty and Expenses
All stamp duties, fees and expenses incurred in connection with this Agreement
shall be for the account of the Pledgor and the Pledgor shall promptly upon
demand reimburse the Pledgee in full for costs expended or the same.
-4-
IN WITNESS WHEREOF this Agreement was executed by the Parties on the day and
year first above written.
Signed by )
)
)
Xx. Xxxxxxx Boonsoong )
in the presence of: )
Signed by )
)
)
Mr. Virat Ovararint )
in the presence of: )
Signed by
)
)
For and on behalf of )
Xxxxxxxxx Telecommunications Investments Limited )
in the presence of: )
-5-
Schedule 1
COPY OF SHARE CERTIFICATES OF INITIAL SHARES
-6-
Class A Shares
Certificate Number 10 Shares 18,750
i-Mobile Holding Co., Ltd. [SEAL]
(Incorporated under the Laws of the Kingdom of Thailand)
Registered Capital : 10,000,000 Baht in 590,000 Ordinary Shares of 10 Baht each
410,000 Preference Shares
This is to Certify that Mr. Virat Ovararint 00 Xxx Xxxxxxxxxxx 00, Xxxxxx
Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxxxxxx Metropolis is the registered holder 18,750
shares numbered from 527501 to 546250 (both inclusive) of Baht 10 each in the
above Company, subject to the Memorandum and Articles of Association, and that
the sum of Baht 10 has been paid on each of the said shares
GIVEN under the seal of the Company this 16 day of October __, 2000
Transfer or sale of shares represented by
this share certificate is subject to the
restrictions contained in the Articles of
Association of the Company
The seal of the Company was hereunto affixed in presence of
[Signature] DIRECTOR [SEAL]
-----------------------------
Class A Shares
Certificate Number 11 Shares 18,750
i-Mobile Holding Co., Ltd. [SEAL]
(Incorporated under the Laws of the Kingdom of Thailand)
Registered Capital : 10,000,000 Baht in 590,000 Ordinary Shares of 10 Baht each
410,000 Preference Shares
This is to Certify that Xx. Xxxxxxx Boonsoong 8/1 ____________ Road, Tambon
Taladyai, Amphoe Muang, Phuket Province is the registered holder 18,750 shares
numbered from 546251 to 565000 (both inclusive) of Baht 10 each in the above
Company, subject to the Memorandum and Articles of Association, and that the sum
of Baht 10 has been paid on each of the said shares
GIVEN under the seal of the Company this 16 day of October __, 2000
Transfer or sale of shares represented by
this share certificate is subject to the
restrictions contained in the Articles of
Association of the Company
The seal of the Company was hereunto affixed in presence of
[Signature] DIRECTOR [SEAL]
-----------------------------
Schedule 2
NOTICE OF PLEDGE OF SHARES
16 October 2000
To: i-Mobile Holdings Co., Ltd. ("Company")
We, Xx. Xxxxxxx Boonsoong holding an I.D. card no. 3 8399 00425-755 issued by
Phuket Province residing at 0/0 Xxxxxxxxx Xxxx, Xxxxxx Xxxxxxxx, Xxxxxx Muang,
Phuket Province ("Xx. Xxxxxxx") and Mr. Virat Ovararint holding an I.D. card no.
3 1009 04705 39 4 issued by Khet Suanluang residing at 00 Xxx Xxxxxxxxxxx 00,
Xxxxxxxxxxx Xxxx, Xxxxxxx Xxxxxxxxx, Xxxx Suanluang, Bangkok ("Mr.Virat") (Xx.
Xxxxxxx and Mr. Virat hereinafter collectively called "Pledgors"), agree to
pledge the shares of the Company, described below, to Xxxxxxxxx
Telecommunications Investments Limited, a company incorporated in Mauritius
whose registered office is at Les Cascades Building, Xxxxx Xxxxxx Street, Port
Louis, Mauritius (hereinafter called "Pledgee") to secure the Pledgors'
obligations to the Pledgee under the Share Purchase Agreement dated 16 October
2000 and the Shareholders Agreement in respect of the Company dated 16 October
2000.
List of pledged shares
------------------------------------------------------------------------------------
Share certificate Par Value Money paid on
No. Number of shares Serial Number (Baht) each share (Baht)
------------------------------------------------------------------------------------
10 18,750 527501-546250 10 10
11 18,750 546251-565000 10 10
------------------------------------------------------------------------------------
By this Notice, we, the Pledgors, inform the Company of the pledge of the
abovementioned shares and request that it be entered in the Company's Share
Register. The pledge will stand until the Pledgee informs the Company that the
obligations have been fulfilled, the Pledgors have been released from the
obligations, or the obligations are cancelled and the Pledgee wants the Company
to nullify the entry in the Company's Share Register.
If the Pledgee surrenders the share certificate and shows satisfactory evidence
of enforcement of the pledge to the Company, we ask that the Company enter the
name of the person who is entitled to hold the shares by the said enforcement in
the Company's Share Register.
Yours faithfully,
PLEDGORS
------------------------
(Xx. Xxxxxxx Boonsoong)
------------------------
(Mr. Virat Ovararint)
Schedule 3
COPY OF SHARE TRANSFER DOCUMENT
-8-
SHARE TRANSFER DOCUMENT
I/We Mr. Virat Ovararint of 00 Xxx Xxxxxxxxxx 00, Xxxxxxxxxx Xxxx, Xxxxxxx
Xxxxxxxxx, Xxxx Suanluang, Bangkok ("transferor") holder of share(s) in i-Mobile
Holdings Co., Ltd. hereby transfer to
------------------------------------------
of
-----------------------------------------------------------------------------
("transferee") a total of 18,750 share(s), Nos. 527501 to 546250, par value per
share Baht 10, paid up 100% The total of agreed transfer price is Baht .
--------
IN WITNESS WHEREOF each undersigned party sets its signature hereto in the
presence of witnesses.
TRANSFEROR TRANSFEREE
Signed on Signed on
------------------------------ ---------------------------
At Bangkok At
----------------------------------
------------------------------------- ----------------------------------
(Mr. Virat Ovararint) ( )
------------------------------------- ----------------------------------
( ) ( )
Witness Witness
-------------------------------- -----------------------------
PTO
-9-
SHARE TRANSFER DOCUMENT
I/We Xx. Xxxxxxx Boonsoong of 0/0 Xxxxxxxxx Xxxx, Xxxxxx Taladyai, Amphur Muang,
Phuket Province ("transferor") holder of share(s) in i-Mobile Holdings Co., Ltd.
hereby transfer to
-------------------------------------------------------------
of
-----------------------------------------------------------------------------
("transferee") a total of 18,750 share(s), Nos. 546251 to 565000, par value per
share Baht 10, paid up 100% The total of agreed transfer price is Baht .
--------
IN WITNESS WHEREOF each undersigned party sets its signature hereto in the
presence of witnesses.
TRANSFEROR TRANSFEREE
Signed on Signed on
------------------------------ ---------------------------
At Bangkok At
----------------------------------
------------------------------------- ----------------------------------
(Xx. Xxxxxxx Boonsoong) ( )
------------------------------------- ----------------------------------
( ) ( )
Witness Witness
-------------------------------- -----------------------------
PTO
-10-
Release Form
7 November 2000
Tawan Mobile Telecom Company Limited ("TMT")
000 Xxx 00 Xxxxxxxx Xxxx 3 Bldg.,
19th Floor, Bangna-Trad Road,
Bangna, Bangkok
i-Mobile Holdings Company Limited
22-25 Floor, 990 Rama IV Road,
Silom, Bangrak, Bangkok
Dear Sirs,
On the date hereof, we, Tawan Telecom Co., Ltd. received the amount of Baht
97,096,214.15 from TMT and agree that such amount be paid by way of check issued
by TMT to (1) Mr. Virat Ovararint in the amount of Baht 34,367,464.24; (2)
United Fareast International Co., Ltd. in the amount of Baht 2,500,000 and (3)
Tawan Telecom Co., Ltd. in the amount of Baht 58,079,180.35 (Baht 60,228,749.91
less the withholding tax of Baht 2,149,569.56).
We, Tawan Telecom Co., Ltd. hereby agree that TMT's payment under the first
paragraph are (i) the full repayment and discharge of TMT's loan obligation and
trade debt including interest, penalty or otherwise thereon ("Related Parties
Liabilities") owed by TMT to Tawan Telecom Co., Ltd. and (ii) the compliance of
i-Mobile Holdings Company Limited with Clause 6.5 of the Shareholders Agreement
in respect of i-Mobile Holdings Company Limited dated 16 October 2000.
The undersigned hereby release and discharge TMT and i-Mobile Holdings Company
Limited from any liabilities, obligations, duties, actions, lawsuits, causes of
action, interests, penalties, expenses, claims or demands in connection with
such Related Parties' Liability and also waive all rights and benefits related
to such Related Parties Liabilities.
Yours sincerely,
For and on behalf of Tawan Telecom Co., Ltd.
/s/ Tiensin Pootana
----------------------------
Tiensin Pootana
[SEAL] TAWAN TELECOM
/s/ Sukhato Poummalee
----------------------------
Sukhato Poummalee
/s/ Anuwat Laikijrung
----------------------------
Anuwat Laikijrung
Release Form
7 November 2000
Tawan Mobile Telecom Company Limited ("TMT")
000 Xxx 00 Xxxxxxxx Xxxx 3 Bldg.,
19th Floor, Bangna-Trad Road,
Bangna, Bangkok
i-Mobile Holdings Company Limited
22-25 Floor, 990 Rama IV Road,
Silom, Bangrak, Bangkok
Dear Sirs,
On the date hereof, we, Tawan Far East Telecom Co., Ltd. received the amount of
Baht 26,131,689.64 from TMT and agree that such amount be paid by way of check
issued by TMT to (1) Tawan Far East Telecom Co., Ltd. in the amount of Baht
11,400,425.98 and (2) FMA Group Co., Ltd. in the amount of Baht 14,731,263.66.
We, Tawan Telecom Co., Ltd. and Tawan Far East Telecom Co., Ltd. hereby agree
that TMT's payment under the first paragraph are (i) the full repayment and
discharge of TMT's loan obligation and trade debt including interest, penalty or
otherwise thereon ("Related Parties Liabilities") owed by TMT to Tawan Far East
Telecom Co., Ltd. and (ii) the compliance of i-Mobile Holdings Company Limited
with Clause 6.5 of the Shareholders Agreement in respect of i-Mobile Holdings
Company Limited dated 16 October 2000.
The undersigned hereby release and discharge TMT and i-Mobile Holdings Company
Limited from any liabilities, obligations, duties, actions, lawsuits, causes of
action, interests, penalties, expenses, claims or demands in connection with
such Related Parties' Liability and also waive all rights and benefits related
to such Related Parties Liabilities.
Yours sincerely,
For and on behalf of Tawan Far East Telecom Co., Ltd.
/s/ Worrawit Patiwejwong
-----------------------------
(Mr. Worrawit Patiwejwong)
[SEAL OF TAWAN FAREAST TELECOM CO., LTD.]
For and on behalf of Tawan Telecom Co., Ltd.
[SEAL OF TAWAN TELECOM]
/s/ Sukhato Poummalee /s/ Tiensin Pootana /s/ Anuwat Laikijrung
------------------------- ----------------------- -------------------------
(Mr. Sukhato Poummalee) (Xx. Xxxxxxx Pootana) (Mr. Anuwat Laikijrung)
Release Form
7 November 2000
Tawan Mobile Telecom Company Limited ("TMT")
000 Xxx 00 Xxxxxxxx Xxxx 3 Bldg.,
19th Floor, Bangna-Trad Road,
Bangna, Bangkok
i-Mobile Holdings Company Limited
22-25 Floor, 990 Rama IV Road,
Silom, Bangrak, Bangkok
Dear Sirs,
On the date hereof, we, Inter Fareast Engineering Public Company Limited
received the amount of Baht 9,913,902.69 from TMT and agree that such amount be
paid by way of check issued by TMT to Inter Fareast Engineering Public Company
Limited in the amount of Baht ________________ (Baht 9,913,902.69 less the
withholding tax of Baht 1,450).
We, Tawan Telecom Co., Ltd. and Inter Fareast Engineering Public Company Limited
hereby agree that TMT's payment under the first paragraph are (i) the full
repayment and discharge of TMT's loan obligation and trade debt including
interest, penalty or otherwise thereon ("Related Parties Liabilities") owed by
TMT to Inter Fareast Engineering Public Company Limited and (ii) the compliance
of i-Mobile Holdings Company Limited with Clause 6.5 of the Shareholders
Agreement in respect of i-Mobile Holdings Company Limited dated 16 October 2000.
The undersigned hereby release and discharge TMT and i-Mobile Holdings Company
Limited from any liabilities, obligations, duties, actions, lawsuits, causes of
action, interests, penalties, expenses, claims or demands in connection with
such Related Parties' Liability and also waive all rights and benefits related
to such Related Parties Liabilities.
Yours sincerely,
For and on behalf of Inter Fareast Engineering Public Company Limited
/s/ XXXXXX TAYCHACHAI WING [SEAL] /s/ SUKHATO POUMMALEE
-------------------------- ---------------------
XXXXXX TAYCHACHAI WING SUKHATO POUMMALEE
For and on behalf of Tawan Telecom Co., Ltd.
[Signature] [Signature] [Signature]
-------------------------- -------------------- ---------------------
[SEAL]
Release Form
7 November 2000
Tawan Mobile Telecom Company Limited ("TMT")
000 Xxx 00 Xxxxxxxx Xxxx 3 Bldg.,
19th Floor, Bangna-Trad Road,
Bangna, Bangkok
i-Mobile Holdings Company Limited
22-25 Floor, 990 Rama IV Road,
Silom, Bangrak, Bangkok
Dear Sirs,
On the date hereof, we, MVO Inter-holding Co., Ltd. received the amount of Baht
14,471,995.44 from TMT and agree that such amount be paid by way of check issued
by TMT to (1) MVO Inter-holding Co., Ltd. in the amount of Baht 12,971,995.44
and (2) Mr. Virat Ovararint in the amount of Baht 1,500,000.
We, MVO Inter-holding Co., Ltd., Telecom Connections Co., Ltd. and Mr. Virat
Ovararint hereby agree that TMT's payment under the first paragraph are (i) the
full repayment and discharge of TMT's loan obligation and trade debt including
interest, penalty or otherwise thereon ("Related Parties Liabilities") owed by
TMT to MVO Inter-holding Co., Ltd. and (ii) the compliance of i-Mobile Holdings
Company Limited with Clause 6.5 of the Shareholders Agreement in respect of
i-Mobile Holdings Company Limited dated 16 October 2000.
The undersigned hereby release and discharge TMT and i-Mobile Holdings Company
Limited from any liabilities, obligations, duties, actions, lawsuits, causes of
action, interests, penalties, expenses, claims or demands in connection with
such Related Parties' Liability and also waive all rights and benefits related
to such Related Parties Liabilities.
Yours sincerely,
For and on behalf of MVO Inter-holding Co., Ltd.
[Signature] [SEAL]
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For and on behalf of Telecom Connections Co., Ltd.
[Signature]
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For and on behalf of Mr. Virat Ovararint
[Signature] [SEAL]
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