1
THIS AGREEMENT is made on the day of 1996
BETWEEN
(1) CHINA TRAVEL XXX XXX (MACAU) LIMITED, whose registered office is at Xxx
Xx Xxxxx Xxxxxx, Xx. 00 Edificio Banco Comercial de Xxxxx, 00(xxxxxx)
Xxxxx, Xxxxx ("X");
(2) SINGASAT PTE LIMITED, whose registered office is at 00 Xxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx 000000, Republic of Singapore ("B");
(3) XXXXX XXX DEVELOPMENT & INVESTMENT LIMITED, whose registered office is
at 1608 Xxxxxxx Xxxxx, 0 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxx Xxxx ("C");
(4) XXXX XXX INTERNATIONAL TELECOMMUNICATION COMPANY LIMITED, whose
registered office is at 21/F., Far East Finance Centre, 00 Xxxxxxxx
Xxxx, Xxxx Xxxx ("X");
(5) CHINA TELECOMMUNICATIONS BROADCAST SATELLITE CORPORATION, whose legal
address is at Xx. 0, Xx Xx Xxxxx Xxxx, Xxxxxxx, Xxxxxx'x Xxxxxxxx of
China ("E");
(6) CHINA AEROSPACE CORPORATION, whose legal address is at 0 Xxxxxxx Xx,
Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxxx'x Xxxxxxxx of China ("F");
(7) CHINA SATELLITE LAUNCH & TRACKING CONTROL GENERAL, whose legal address
is at Xx. 0 Xxx Xxx Xxxx Xxxxx Xx, Xxxxxxx People's Republic of China
("G"); and
(8) APT SATELLITE INTERNATIONAL COMPANY LIMITED, whose registered office is
at Trident Xxxxxxxx, P.O. Box 146, Road Town, Tortola, British Virgin
Islands (the "Company").
WHEREAS:
(A) The Company is a private company limited by shares incorporated in the
British Virgin Islands under the International Business Companies Act,
1984 and as at the date hereof has an authorised capital of
US$50,000.00 divided into 50,000 ordinary shares of US$1.00 each. As at
the date hereof 700 of such shares have been issued and are fully paid
up and are beneficially owned as to 100 shares each by A, B, C, D, E, F
and G.
(B) The Shareholders (as defined herein) have agreed to enter into this
Agreement to set out the arrangements between them as to the management
and operation of the Company, through which they will hold a majority
shareholding interest in APT Satellite Holdings Limited ("Holdings"), a
company incorporated in Bermuda, the securities of which are to be
listed on The Stock Exchange of Hong Kong Limited (the "SEHK") and the
New York Stock Exchange, Inc. (the "NYSE").
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NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.01 In this Agreement, unless the context requires otherwise:
"Affiliate" means, in relation to any Shareholder, any subsidiary or
holding company of such Shareholder, any subsidiary of any such holding
company, any company in which such Shareholder or any such holding
company holds or controls directly or indirectly not less than 20% of
the issued share capital, and any partnership in which such shareholder
or any such holding company is a partner;
"APT" means APT Satellite Company Limited, a company incorporated in
Hong Kong with limited liability;
"APT Group" means the group comprising APT and its existing
subsidiaries and other companies in which APT has interests and,
following the listing of the securities of Holdings on the SEHK and the
NYSE, means the group comprising Holdings and its subsidiaries and
other companies in which it has interests;
"Articles of Association" means the articles of association of the
Company for the time being;
"Board" means the Company's board of directors as constituted from time
to time;
"Business" means the business described in Clause 3;
"Companies Act" means the International Business Companies Act, 1984,
as amended, of the British Virgin Islands;
"Director(s)" means director(s) of the Company;
"Holdings Share(s)" means share(s) of HK$0.10 each in the capital of
Holdings;
"Resolution" means the shareholders' resolution of the Company in the
form set out in Schedule 2, to be passed by the Shareholders pursuant
to Clause 2(a);
"Share(s)" means ordinary share(s) of US$1 each in the capital of the
Company; and
"Shareholders" means A, B, C, D, E, F, and G and the expression
"Shareholder" means A, B, C, D, E, F or G or any of them, as the
context shall require.
1.02 References to statutory provisions shall be construed as references to
those provisions as amended or re-enacted or as their application is
modified by other provisions (whether before or after the date hereof)
from time to time and shall include any provisions of which they are
re-enactments (whether with or without modification).
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1.03 References herein to Clauses and Schedules are to clauses in and the
schedules to this Agreement unless the context requires otherwise and
the Schedules to this Agreement shall be deemed to form part of this
Agreement.
1.04 The expressions "A", "B", "C", "D", "E", "F", "G", the "Shareholders"
and the "Company" shall, where the context permits, include their
respective successors and permitted assigns.
1.05 The headings are inserted for convenience only and shall not affect the
construction of this Agreement.
1.06 Unless the context requires otherwise, words importing the singular
include the plural and vice versa and words importing a gender include
every gender.
2. ORGANISATION OF THE COMPANY
As soon as practicable after the execution of this Agreement, the
Shareholders will procure that:
(a) the Resolution is passed to amend the existing Articles of
Association; and
(b) Ernst & Young are appointed the auditors of the Company.
3. ACTIVITIES OF THE COMPANY
The Shareholders shall procure that unless otherwise agreed, the
business of the Company shall be to invest in and hold shares or
securities of Holdings.
4. FURTHER CAPITAL
In the event that the Board resolves that the Company requires further
working capital then the Shareholders may (if they so agree) provide
the same but only in the respective proportions of their shareholdings
in the Company by way of capital injection or interest-free loans
(repayable on demand provided always that all repayments of such loans
shall be made to the Shareholders pro rata according to the respective
principal amounts outstanding to each Shareholder at the date of each
repayment) or such other form of financing as the Shareholders shall
agree.
5. MATTERS REQUIRING THE CONSENT OF ALL SHAREHOLDERS
The Shareholders shall exercise all voting rights and other powers of
control available to them in relation to the Company to procure that
the Company shall not (and the Company hereby agrees that it will not)
without the prior written approval of the Shareholders, which approval
may be given by the Shareholder or a Director appointed by it or his
alternate (and, for this purpose, each Director appointed by a
Shareholder and his alternate shall be deemed to have authority to bind
that Shareholder in relation to the
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provisions of this Clause unless that Shareholder shall have given
prior written notice to the other Shareholders that the relevant
Director does not have such authority):
(a) carry on any business other than the Business;
(b) except the receipt of Holdings Shares as a result of any
capitalisation issue of shares or distribution in specie by
Holdings, subscribe for, acquire or dispose of any Holdings
Shares (whether pursuant to a rights issue, a warrant issue, a
scrip dividend scheme or otherwise);
(c) change its name or its memorandum or articles of association;
(d) issue or agree to issue or grant any option over or right to
acquire any additional Shares or purchase or redeem any
Shares;
(e) vary any rights attaching to any Shares;
(f) consolidate, subdivide or convert any of its share capital;
(g) pass any resolution the result of which would be its winding
up, liquidation or receivership, or make any composition or
arrangement with creditors;
(h) make any recommendation or determination as to further working
capital, or declare or pay any dividend in cash or specie
except in accordance with the Articles of Association;
(i) incorporate any subsidiary or permit the disposal or dilution
of its interest, directly or indirectly, in any subsidiary or
acquire shares in any company or dispose of any shares in any
company or acquire or dispose of any loans or loan capital;
(j) consolidate or merge with or acquire any other business;
(k) enter into any partnership or joint venture arrangement;
(l) issue any debentures or other securities convertible into
shares or debentures of the Company;
(m) create any fixed or floating charge, lien (other than a lien
arising by operation of law) or other encumbrance over the
whole or any part of its undertaking or assets;
(n) borrow any sum other than by way of loans from its
Shareholders pursuant to Clause 4;
(o) make any loan or advance or give any credit;
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(p) give any guarantee or indemnity for or otherwise secure the
liabilities or obligations of any person;
(q) sell, transfer, lease, assign or otherwise dispose of any part
of its undertaking, property or assets (or any interest
therein) or contract so to do;
(r) purchase any property or asset (or any interest therein) or
contract so to do;
(s) make any capital expenditure;
(t) undertake anything which would require accounting treatment by
way of provision reserve or extraordinary item;
(u) grant any power of attorney or delegate Directors' powers;
(v) change its auditors;
(w) alter its financial year end;
(x) adopt the annual accounts or amend the accounting policies or
reporting practices previously adopted by it;
(y) elect, settle or compromise any major tax claims or elections;
(z) change its registered office;
(aa) commence, defend or settle any litigation, arbitration or
other proceedings;
(bb) make, amend or terminate any contract, loan, guarantee or
other arrangement with any Shareholder or any Affiliate of a
Shareholder except pursuant to Clause 4 or Clause 7.03;
(cc) make, amend or terminate any long-term, unusual or onerous
contract or take any action which could, as a consequence of
any action taken by another party, result in any of the same.
6. FURTHER OBLIGATIONS AND UNDERTAKINGS OF SHAREHOLDERS
6.01 Each of the Shareholders hereby covenants and undertakes in favour of
the other Shareholders that it will not transfer or permit to be
transferred any Holdings Shares held by such Shareholder directly or
indirectly (otherwise than through the Company), until the expiry of
the period ending six months from the date of commencement of dealings
of the Holdings Shares on the SEHK.
6.02 Each of the Shareholders shall itself be responsible and liable for all
of its own filing, reporting and other obligations to Holdings and/or
to the SEHK, the Securities and
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Futures Commission of Hong Kong ("SFC"), the NYSE, the Securities and
Exchange Commission of the United States ("SEC") and/or to any other
regulatory authority as may be applicable to such Shareholder in
respect of its interests or deemed interests in the securities of
Holdings under the Securities (Disclosure of Interests) Ordinance of
Hong Kong or any other applicable law or regulatory requirements.
6.03 The Shareholders shall procure that the Company shall comply with all
of its filing, reporting and other obligations to Holdings and/or to
SEHK, the SFC, the NYSE, the SEC and/or to any other regulating
authority as may be applicable to the Company in respect of its
interests or deemed interests in the securities of Holdings under the
Securities (Disclosure of Interests) Ordinance of Hong Kong or any
other applicable law or regulatory requirements.
6.04 The Company shall, and the Shareholders will procure that the Company
shall:
(a) keep true and accurate books of account and records in
accordance with usual accounting practices and procedures; and
(b) allow the Shareholders and their authorised representatives
the right during normal business hours to inspect its books
and accounting records, to make extracts and copies therefrom
at their own expense.
6.05 Each the Shareholders acknowledges and confirms that this Agreement is
entered into between them and will be performed in a spirit of mutual
co-operation, trust and confidence.
7. TRANSFERS OF SHARES
7.01 Subject to provisions hereof, no transfer of any Shares shall be made
by any Shareholder until the expiry of the period ending six months
from the date of commencement of dealings of the Holdings Shares on the
SEHK, and no transfer shall be made thereafter unless the provisions
contained in Schedule 1 are complied with in respect of such transfer
and no Shareholder shall otherwise sell, mortgage, charge, or otherwise
dispose of or encumber the whole or any part of its shareholding in the
Company or assign or otherwise purport to deal with the beneficial
interest therein or any right in relation thereto separate from the
legal interest. Without prejudice to the foregoing, no transfer of any
Shares shall be made by any Shareholder within the period of one year
from the date of commencement of dealings of the Holdings Shares on the
SEHK if such transfer would cause Holdings to be in breach of any
provisions of the Rules Governing the Listing of Securities on the SEHK
(in particular, but without limitation, rule 10.07 thereof).
7.02 Notwithstanding Clause 7.01, the Shareholders agree that a transfer of
Shares to a transferee which is and remains a wholly-owned subsidiary
of the ultimate holding company of the transferor Shareholder shall be
permitted provided that:
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(a) the obligations of the transferor Shareholder under this
Agreement will remain unaffected by the proposed transfer; and
(b) the Shares will be re-transferred to the transferor
Shareholder immediately upon the transferee ceasing to be a
wholly-owned subsidiary of such ultimate holding company.
7.03 It shall be a condition precedent to the right of any Shareholder to
transfer any Shares (including a transfer under Clause 7.02) that the
transferee (if not already bound by the provisions of this Agreement)
executes in such form as may be reasonably required by the other
Shareholders a deed of ratification and accession under which the
transferee shall agree to be bound by and shall be entitled to the
benefit of this Agreement as if an original party hereto.
7.04 The Shareholders will procure that the Directors shall register any
transfer of Shares which complies with the provisions of this Clause 7
and Schedule 1.
7.05 All transfers between the Shareholders, whether pursuant to this Clause
7 or any other provision of this Agreement shall be effected by the
transferor selling as beneficial owner free and clear of all liens
charges and encumbrances and together with all rights attaching
thereto. Upon completion, the transferor shall deliver to the
transferee duly executed transfers in respect of the Shares transferred
in favour of the transferee together with the relative share
certificates against payment by the transferee of the price due in
respect thereof. The Shareholders shall do or procure to be done all
such acts and things as may be necessary to give full effect to the
transfers and the registration thereof. If the transferor shall fail
duly to deliver such transfers, it hereby irrevocably appoints the
transferee its agent and attorney with full power to execute complete
and deliver in its name and on its behalf the necessary transfers upon
terms that forthwith upon execution and registration, the transferee
shall, make the payment or payments due in respect thereof to the
transferor.
8. DEFAULT
8.01 In the event that a Shareholder (in this Clause 8 referred to as the
"Defaulter") commits an act of default within the meaning of Clause
8.02 and written notice is given to it by the other Shareholders, then
the other Shareholders not in default shall have an option to purchase
all of the Shares of the Default in proportion to their respective
shareholdings in the Company or in such other proportion as the other
Shareholders may agree at any time during the period of two months from
the date of default. Upon expiry of such two-month period, the "call"
option in favour of the other Shareholders not in default shall lapse
if not previously exercised.
8.02 For the purposes of Clause 8.01, a Shareholder shall be deemed to have
committed an act of default:
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(a) if a petition is presented or a proceeding is commenced or an
order is made or an effective resolution is passed for the
winding-up, insolvency, administration, reorganisation,
reconstruction, dissolution or bankruptcy of the Defaulter or
for the appointment of a liquidator, receiver, administrator,
trustee or similar officer of the Defaulter or of all or any
part of its business or assets (except, in the case of any
such administration, reorganisation or reconstruction, where
the other Shareholders have given their prior consent to such
administration, reorganisation or reconstruction and/or the
relevant action(s) in relation thereto); if the Defaulter
stops or suspends payments to its creditors generally or is
unable or admits its inability to pay its debts as they fall
due or seeks to enter into any composition or other
arrangement with its creditors or is declared or becomes
bankrupt or insolvent; or if a creditor takes possession of
all or any part of the business or assets of the Defaulter or
any execution or other legal process is enforced against the
business or any substantial asset of the Defaulter and is not
discharged within 60 days;
(b) if the Defaulter ceases or threatens to cease to carry on all
of its business or if the Defaulter disposes of or threatens
to dispose of or any governmental or other authority
expropriates or threatens to expropriate all of its business
or assets of the Defaulter;
(c) if the Defaulter is in material breach of its obligations
hereunder and such breach, if capable of remedy, has not been
remedied at the expiry of 30 days following written notice to
that effect having been served on the Defaulter by all of the
other Shareholders not in default indicating the steps
required to be taken to remedy the failure; or
(d) if the Defaulter persistently and unreasonably withholds its
consent in relation to any matter set out in Clause 7 in such
a way as substantially to jeopardise the business or
operations of the Company.
8.03 The "call" option provided in Clause 8.01 in favor of the Shareholders
not in default shall be exercised by all of the other Shareholders not
in default serving on the Defaulter written notice (an "Option Notice")
of their wish to exercise the option. The Option Notice shall not be
revocable by the other Shareholders otherwise than with the consent in
writing of the Defaulter. Upon service of an Option Notice, the
Defaulter shall become bound to sell the Shares specified therein at
the price and in accordance with the terms set out in Clauses 8.04,
8.05 and 8.06.
8.04 The price at which such purchase or sale shall take place shall be the
fair value thereof, determined as provided in paragraph D of Schedule
1.
8.05 Completion of the purchase or sale pursuant to an Option Notice shall
take place no later than 28 calendar days after the date on which the
fair value applicable thereto shall have been determined or the date on
which the Option Notice is served or the date on which the condition
set out in Clause 8.06 shall have been fulfilled, whichever is the
latest.
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8.06 Completion of a purchase pursuant to an Option Notice shall be
conditional upon all necessary government and other consents having
been obtained and being valid and subsisting.
9. CONFIDENTIALITY
9.01 Each of the Shareholders covenants and undertakes with the others that:
(a) it will not at any time hereafter make use of or disclose or
divulge to any third party any information relating to the
Company or any member of the APT Group provided that this
obligation shall not extend to information:
(i) which is in or comes into the public domain otherwise
than through the default of such Shareholder;
(ii) which was already in the possession of such
Shareholder prior to the negotiations between the
parties hereto leading to the execution of this
Agreement as evidenced by documentation in such
Shareholder's possession at the date hereof;
(iii) the disclosure of which is agreed by all of the
Shareholders; or
(iv) which is properly available to the public or
disclosed or divulged pursuant to an order of a court
of competent jurisdiction or the requirements of the
relevant stock exchanges or regulatory authorities;
(b) it will not at any time hereafter in relation to any trade,
business or company use a name including the word "APT" or any
similar word in such a way as to be capable of or likely to be
confused with the name of the Company or any member of the APT
Group and shall use all reasonable endeavours to procure that
no such name shall be used by any person, firm or company with
which it is connected; and
(c) it will procure that its Affiliates will observe the
restrictions contained in the foregoing provisions of this
Clause 9.01 and that its employees will observe the
restrictions contained in Clause 9.01(a).
9.02 Each and every obligation under this Clause 9 shall be treated as a
separate obligation and shall be severally enforceable as such and in
the event of any obligation or obligations being or becoming
unenforceable in whole or in part such part or parts as are
unenforceable shall be deleted from this Clause 9 and any such deletion
shall not affect the enforceability of such parts of this Clause 9 as
remain not so deleted.
9.03 The parties hereto agree that having regard to all the circumstances
the covenants and undertakings contained in this Clause 9 are
reasonable and necessary for the protection of the Company and the
Shareholders and further agree that having regard to those
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circumstances the said covenants do not work harshly upon them.
However, it is recognised that restrictions of the nature in question
may fail for technical reasons unforeseen and accordingly it is hereby
agreed and declared that if any of such restrictions shall adjudged to
be void as going beyond what is reasonable in all the circumstances for
the protection of the Company or the Shareholders but would be valid if
part of the wording thereof were deleted or the periods thereof reduced
or the range of activities or area dealt with thereby reduced in scope
the said restriction shall apply with such modifications as may be
necessary to make it valid and effective.
10. MISCELLANEOUS
10.01 The parties hereto shall do and execute or procure to be done and
executed all such further acts, deeds, documents and things as may be
necessary to give full effect to the terms and intent of this
Agreement.
10.02 Each party hereto shall pay its own legal and professional fees, costs
and disbursements of and incidental to this Agreement.
10.03 Each notice, demand or other communication given or made under this
Agreement shall be in writing and delivered or sent to the relevant
party at its address or fax number set out below (or such other address
or fax number as the addressee has by five (5) days' prior written
notice specified to the other parties):
To A: China Travel Xxx Xxx (Macau) Limited
c/o China Travel Service (Holdings) H.K. Ltd.
00/X., XXX Xxxxx
00-00 Xxxxxxxxx Xxxx Xxxxxxx
Xxxx Xxxx
Fax Number : (000) 0000 0000
Attention : Xx Xx Xxx Xxxx
To B: SingaSat Pte Limited
00 Xxxxxx Xxxx, Xxxxxxxxx
Xxxxxxxxx 000000
Republic of Singapore
Fax Number : (00) 000 0000
Attention : Xx Xx Siaw Hong
To C: Xxxxx Xxx Xxxxxxxxxxx & Xxxxxxxxxx Xxxxxxx
0000 Xxxxxxx Xxxxx
0 Xxxxxxxxx Xxxxx
Xxxxxxx
Xxxx Xxxx
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Fax Number : (000) 0000 0000
Attention : Xx. Xxxxx Xxx
To D: Xxxx Xxx International Telecommunication Company
Limited
21/F, Far East Finance Centre
00 Xxxxxxxx Xxxx
Xxxx Xxxx
Fax Number : (000) 0000 0000
Attention : Xx Xxxx Man
To E: China Telecommunications Broadcast Satellite
Corporation
Xx.0, Xx Xx Xxxxx Xxxx
Xxxxxxx
Xxxxxx'x Xxxxxxxx xx Xxxxx
Fax Number : (8610) 6202 9505/(8610)
6202 6997
Attention : Xx Xxxx Ze He
To F: China Aerospace Corporation
0 Xxxxxxx Xxxx Lu
Haidian District
Beijing
People's Republic of China
Fax Number : (8610) 6837 0043
Attention : Xx Xx Bao An/
Xx Xxxxx Xxx Xxx
To G: China Satellite Launch & Tracking Control General
Xx. 0 Xxx Xxx Xxxx Xxxxx Xx
Xxxxxxx
Xxxxxx'x Xxxxxxxx of China
Fax Number : (8610) 6202 2301
Attention : Xx Xx Xxx Xxxx
To the Company: APT Satellite International Company Limited
Room 3111-3112, 00/X
Xxx Xxxxxxx Xxxxx
00 Xxxxxxxxx
Xxxx Xxxx
Fax Number : (000) 0000 0000
Attention : Mr He Ke Rang
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Any notice, demand or other communication so addressed to the relevant
party shall be deemed to have been delivered (a) if given or made by
letter, when actually delivered to the relevant address; and (b) if
given or made by fax, when despatched subject to receipt of
machine-printed confirmation or error-free despatch.
10.04 No failure or delay by any party in exercising any right, power or
remedy under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of the same preclude any further
exercise thereof or the exercise of any other right, power or remedy.
Without limiting the foregoing, no waiver by any party of any breach of
any provision hereof shall be deemed to be a waiver of any subsequent
breach of that or any other provision hereof. If at any time any
provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect, the legality, validity and enforceability
of the remaining provisions of this Agreement shall not be affected or
impaired thereby.
10.05 No party hereby shall be entitled to assign this Agreement or its
rights or obligations hereunder save as expressly provided herein.
10.06 This Agreement (together with any documents referred to herein)
constitutes the whole agreement between the parties hereto and it is
expressly declared that no variations hereof shall be effective unless
made in writing.
10.07 Nothing contained or implied in this Agreement shall constitute or be
deemed to constitute a partnership or agency between the Shareholders
and none of the Shareholders shall have any authority to bind or commit
the other.
10.08 In the event of any conflict or inconsistency between the memorandum of
association of the Company or the Articles of Association and this
Agreement, the provisions of this Agreement shall prevail.
11. DURATION OF AGREEMENT
11.01 Any Shareholder which ceases to be a beneficial owner of Shares in
accordance with the provisions of this Agreement shall thereupon cease
to be bound or have the benefit of the terms of this Agreement (other
than Clause 10) save and in respect of antecedent breaches and
obligations and liabilities which have arisen hereunder prior to such
cessation.
11.02 This Agreement shall continue in force so long as there is more than
one Shareholder or until such time as all of the then remaining
Shareholders shall agree to its termination.
11.03 The termination of this Agreement shall not prejudice or affect any
rights or liabilities under this Agreement acting prior to such
termination.
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12. GOVERNING LAW AND JURISDICTION
12.01 This Agreement shall be governed by and construed in accordance with
the laws of Hong Kong and the parties hereto hereby irrevocably submit
to the non-exclusive jurisdiction of the Hong Kong courts.
12.02 A hereby irrevocably appoints APT Satellite Company Limited of Room
3111-3112, 31/F, One Xxxxxxx Xxxxx, 00 Xxxxxxxxx, Xxxx Xxxx as its
agent to receive and acknowledge on its behalf service of any writ,
summons, order, judgment or other notice of legal process in Hong Kong.
If for any reason the agent named above (or its successor) no longer
serves as agent of A for this purpose, A shall promptly appoint a
successor agent and notify the other parties hereto. A agrees that any
such legal process shall be sufficiently served on it if delivered to
such agent for service at its address for the time being in Hong Kong
whether or not such agent gives notice thereof to it.
12.03 B hereby irrevocably appoints Singapore Telecommunications Limited
(Hong Kong Representative Office) of 00/X, Xxxxxxx Xxxxx, 00 Xxxxxxx
Xxxx, Xxxxxxx, Xxxx Xxxx as its agent to receive and acknowledge on its
behalf service of any writ, summons, order, judgment or other notice of
legal process in Hong Kong. If for any reason the agent named above (or
its successor) no longer serves as agent of B for this purpose, B shall
promptly appoint a successor agent and notify the other parties hereto.
B agrees that any such legal process shall be sufficiently served on it
if delivered to such agent for service at its address for the time
being in Hong Kong whether or not such agent gives notice thereof to
it.
12.04 E hereby irrevocably appoints APT Satellite Company Limited of Room
3111-3112, 31/F, One Xxxxxxx Xxxxx, 00 Xxxxxxxxx, Xxxx Xxxx as its
agent to receive and acknowledge on its behalf services of any writ,
summons, order, judgment or other notice of legal process in Hong Kong.
If for any reason the agent named above (or its successor) no longer
serves as agent of E for this purpose, E shall promptly appoint a
successor agent and notify the other parties hereto. E agrees that any
such legal process shall be sufficiently served on it if delivered to
such agent for service at its address for the time being in Hong Kong
whether or not such agent gives notice thereof to it.
12.05 F hereby irrevocably appoints APT Satellite Company Limited of Room
3111-3112, 31/F, One Xxxxxxx Xxxxx, 00 Xxxxxxxxx, Xxxx Xxxx as its
agent to receive and acknowledge on its behalf services of any writ,
summons, order, judgment or other notice of legal process in Hong Kong.
If for any reason the agent named above (or its successor) no longer
serves as agent of F for this purpose, F shall promptly appoint a
successor agent and notify the other parties hereto. F agrees that any
such legal process shall be sufficiently served on it if delivered to
such agent for service at its address for the time being in Hong Kong
whether or not such agent gives notice thereof to it.
12.06 G hereby irrevocably appoints APT Satellite Company Limited of Room
3111-3112, 31/F, One Xxxxxxx Xxxxx, 00 Xxxxxxxxx, Xxxx Xxxx as its
agent to receive and acknowledge on its behalf services of any writ,
summons, order, judgment or other notice
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of legal process in Hong Kong. If for any reason the agent named above
(or its successor) no longer serves as agent of G for this purpose, G
shall promptly appoint a successor agent and notify the other parties
hereto. G agrees that any such legal process shall be sufficiently
served on it if delivered to such agent for service at its address for
the time being in Hong Kong whether or not such agent gives notice
thereof to it.
12.07 The Company hereby irrevocably appoints APT Satellite Company Limited
of Room 3111-3112, 31/F, One Xxxxxxx Xxxxx, 00 Xxxxxxxxx, Xxxx Xxxx as
its agent to receive and acknowledge on its behalf services of any
writ, summons, order, judgment or other notice of legal process in Hong
Kong. If for any reason the agent named above (or its successor) no
longer serves as agent of the Company for this purpose, the Company
shall promptly appoint a successor agent and notify the other parties
hereto. The Company agrees that any such legal process shall be
sufficiently served on it if delivered to such agent for the service at
its address for the time being in Hong Kong whether or not such agent
gives notice thereof to it.
13. COUNTERPARTS
This agreement may be executed in any number of counterparts, each of
which shall deemed to be an original document and all of which, taken
together shall constitute one and the same agreement, and any party to
this Agreement may enter into the same by executing and delivering a
counterpart hereof.
- 14 -
15
IN WITNESS whereof this Agreement has been executed on the day and year first
above written.
SIGNED by )
for and on behalf of )
CHINA TRAVEL XXX XXX )
(MACAU) LIMITED )
in the presence of: )
SIGNED by )
for and behalf of )
SINGASAT PTE LIMITED )
in the presence of: )
SIGNED by )
for and on behalf of )
XXXXX XXX DEVELOPMENT )
& INVESTMENT LIMITED )
in the present of: )
SIGNED by )
for and on behalf of )
XXXX XXX INTERNATIONAL )
TELECOMMUNICATION )
COMPANY LIMITED )
in the presence of: )
SIGNED by )
for and on behalf of )
CHINA TELECOMMUNICATIONS )
BROADCAST SATELLITE )
CORPORATION )
in the presence of: )
SIGNED by )
for and on behalf of )
CHINA AEROSPACE )
CORPORATION )
in the presence of: )
- 15 -
16
SIGNED by )
for and on behalf of )
CHINA SATELLITE LAUNCH )
& TRACKING CONTROL GENERAL )
in the presence of: )
SIGNED by )
for and on behalf of )
APT SATELLITE )
INTERNATIONAL )
COMPANY LIMITED )
in the presence of: )
- 16 -
17
SCHEDULE 1
Transfers of Shares
(A) The Directors in their absolute discretion and without assigning any
reason therefor may decline to register any transfer of Shares which
are not fully paid. The Directors shall not register a transfer to a
person who is known to them to be an infant, bankrupt or person of
unsound mind provided that the Directors shall not be bound to enquire
into the age or soundness of mind of any transferee or whether or not
he is a bankrupt.
(B) Save as provided in paragraph (J) of this Schedule and subject to any
agreement between all of the Shareholders no transfer or disposal of
any Shares or any interest in any Shares shall be made by a Shareholder
except in compliance with Clause 7 of this Agreement and the following
provisions of this Schedule and no Shareholder shall otherwise sell,
mortgage, charge or otherwise dispose of or encumber any Shares or
assign or otherwise purport to deal with the beneficial interest
therein or any right in relation thereto separate from the legal
interest.
(C) Before transferring or disposing of its Shares or any interest in its
Shares (save in the case of transfer by way of security) the
Shareholder proposing to transfer or dispose of the same (hereinafter
called the "Transferor") shall give a notice in writing (hereinafter
called a "Transfer Notice") to the Company and the other Shareholders
that it desires to transfer or dispose of the same. The Transfer Notice
shall specify:
(a) the number of Shares and/or any interest therein which the
Transferor wishes to transfer or dispose of (which may be all
or part only of the Shares then held by the Transferor but
shall in no circumstances be 5 per cent or less of the issued
voting share capital of the Company) (hereinafter called the
"Relevant Shares"); and
(b) the price at which the Transferor is willing to sell the
Relevant Shares.
The Transfer Notice shall constitute the Company the agent of the
Transferor for the sale of the Relevant Shares at the Prescribed Price
(as hereinafter defined) during the Prescribed Period (as defined in
paragraph (E) of this Schedule) to the other Shareholders and save as
provided in paragraph (E) of this Schedule shall not be revocable
except with the consent of the other Shareholders.
(D) If the price stated in the Transfer Notice shall be accepted by all the
other Shareholders, such price shall be the Prescribed Price. If such
price shall not be so accepted but if within one month after the date
on which the Transfer Notice was given the Transferor and the other
Shareholders shall have agreed a price for the sale of the Relevant
Shares then such price shall be the Prescribed Price. In default of
such agreement the Directors shall forthwith appoint an independent
merchant bank or other financial adviser of first class international
repute (as selected by shareholders for the time being holding in
- 17 -
18
aggregate a simple majority of the Shares) (the "Expert") to determine
and certify in writing the sum considered by it to be the fair value of
the Relevant Shares as at the date of the Transfer Notice (the
"Reference Price"). The costs of such determination shall be borne by
the Transferor. The Expert shall act hereunder as expert and not as
arbitrator. The Expert's determination of the Reference Price shall not
be final and binding on the Shareholders, but the Shareholders shall,
with reference to the Reference Price, negotiate in good faith a price
for the sale of the Relevant Shares. If such negotiated price (which
may or may not be the Reference Price) is so agreed within one month of
the date on which the Expert shall have notified the Directors of its
determination of the Reference Price (the "Reference Price
Determination Date"), then such price shall be the Prescribed Price.
For the purpose of this Schedule the fair value of the Relevant Shares
shall be the higher of the Net Asset Value of the Relevant Shares
determined by reference to the then prevailing accounting principles of
the Company and the Open Market Value of the Relevant Shares at the
date of the Transfer Notice where:
(a) the "Net Asset Value" of the Relevant Shares shall be
ascertained by dividing the net asset value of the Company at
the date of the Transfer Notice by the number of Shares of the
Company then in issue and multiplying the resultant amount by
the number of Relevant Shares and taking full account of any
element of control attaching to the Relevant Shares or
conferred by the transfer of the Relevant Shares or the
relevant part thereof. In determining the net asset value of
the Company, the value attributable to any Holdings Share held
by the Company shall be the average of the closing price of
one Holdings Share on the SEHK on each of the 10 trading days
on which there were dealings in Holdings Shares on the SEHK
immediately prior to the date of the Transfer Notice; and
(b) the "Open Market Value" of the Relevant Shares shall be
ascertained on the following assumptions and bases:
(i) valuing the Relevant Shares as on an arm's length
sale between a willing vendor and a willing
purchaser;
(ii) if the Company is then carrying on business as a
going concern, on the assumption that it will
continue to do so;
(iii) that the Relevant Shares are subject to the
restrictions on transfers contained in this Schedule;
(iv) taking full account of any rights and obligations
attached to the Relevant Shares whether by virtue of
any contract or otherwise; and
(v) taking full account of any element of control
attaching to the Relevant Shares or conferred by the
transfer of the Relevant Shares or the relevant part
thereof or the fact that the Relevant Shares
represent a minority interest only in the Company (as
the case may be).
- 18 -
19
(E) If the Prescribed Price is accepted or agreed as aforesaid, the
Prescribed Period shall commence on the date of the Transfer Notice or
the date of such agreement, if later, and shall expire one month
thereafter. If the Prescribed Price is not so accepted or agreed within
one month of the Reference Price Determination Date then the Transfer
Notice shall be deemed to have been withdrawn and the transfer of the
Relevant Shares shall not proceed. For the avoidance of doubt, such
withdrawal of the Transfer Notice shall not prevent the Transferor from
submitting a fresh notice in the future in respect of a transfer of all
or any Shares held by it in accordance with paragraph (C) of this
Schedule.
(F) Subject to, and promptly following, acceptance or agreement on the
Prescribed Price as aforesaid, the Relevant Shares shall be offered by
the Company by notice in writing to the other Shareholders for purchase
at the Prescribed Price. Such offer shall be open for acceptance at any
time within the Prescribed Period.
(G) If there shall only be one Shareholder who applies for all or any of
the Relevant Shares within the Prescribed Period, the Company shall
give notice in writing thereof to the Transferor and the Transferor
shall be bound upon payment to transfer such of the Relevant Shares to
such Shareholder as he has applied for. The purchase shall be completed
at a place and time to be appointed by the Directors not being less
than three days nor more than ten days after the date of such notice,
and, subject to compliance with the provisions of Clause 7 of this
Agreement, the Directors shall be bound to register the transfer.
(H) If there shall be more than one Shareholder who applies within the
Prescribed Period for all or any of the Relevant Shares, the Directors
shall allocate the Relevant Shares (or so many of them as shall have
been applied for as aforesaid) to or amongst the applicants in
proportion as nearly as may be to the number of Shares held by them in
the Company as at the date of the Transfer Notice provided that if not
all Shareholders accept the offer in their respective proportions in
full any Relevant Shares not so accepted shall be used to satisfy
requests from other Shareholders as nearly as may be in proportion to
their requests. However, no Shareholder shall be obliged to take more
than the maximum number of the Relevant Shares specified by him as
aforesaid. The Directors shall forthwith give notice of such
allocations to the Transferor and the Shareholders to whom the Relevant
Shares have been allocated and shall specify in the said notice the
place and time, being not less than three days nor more than ten days
after the date of such notice at which the sale of the Relevant Shares
so allocated shall be completed. The Transferor shall be bound upon
payment to transfer the Relevant Shares so allocated to the relevant
Shareholders and subject to compliance with the provisions of Clause 7
of this Agreement, the Directors shall be bound to register the
transfers.
(I) If by the foregoing procedures the Directors shall have received
acceptances from Shareholders in respect of part only of the Relevant
Shares within the Prescribed Period then they shall forthwith give
notice in writing of that fact to the Transferor. The Transferor shall
then be entitled at any time within six months after the date of the
Directors' said notice to sell and transfer all or part of those
Relevant Shares which have not been accepted as aforesaid to any person
or corporation approved by the other
- 19 -
20
Shareholders (such approval not to be unreasonably withheld or delayed)
at any price, being not less than the Prescribed Price (or a proportion
of the Prescribed Price which represents the proportion of the Relevant
Shares to be transferred) and, subject to compliance with the
provisions of Clause 7 of this Agreement, the Directors shall be bound
to register the same.
(J) The foregoing provisions of this Schedule shall not apply to any
transfer to which the consent in writing of all the Shareholders is
given.
- 20 -
21
SCHEDULE 2
The Resolution
RESOLVED THAT the Articles of Association of the Company be hereby amended as
follows:
(1) By adding the following Articles after Article 1.1 as new Article
1.1(A), 1.1(B) and 1.1(C):
"1.1(A) Foundation China Telecommunications Broadcast Satellite
Members Corporation, Xxxx Xxx International
Telecommunication Company Limited, China
Aerospace Corporation and China Satellite
Launch & Tracking Control General.
1.1(B) Foundation A director appointed by a Foundation Member
Member Director in accordance with Article 11.3(b).
1.1(C) Holdings APT Satellite Holdings Limited, a company
incorporated in Bermuda."
(2) By deleting the words "a simple majority" in the third line of Article
1.4.1 and replacing them with the word "two-thirds"; and by adding the
words "and provided that no more than three (3) Foundation Member
Directors vote against such resolution" to the end of Article 1.4.1
after the word "abstain".
(3) By deleting the existing Article 1.5.1.1 in its entirety and
substituting it with the following Article as new Article 0.0.0.0:
"1.5.1.1 two-thirds or such larger majority as may be
specified in the Articles, of the members present in
person or by proxy; or, in case of a poll vote,
two-thirds of the votes voting in favour of the
resolution, or".
(4) By deleting the words "a simple majority" in the first line and the
sixth line respectively of Article 1.5.1.2 and substituting them in
each case with the word "two-thirds".
(5) By deleting Article 1.5.2 (including Articles 1.5.2.1 and 1.5.2.2) in
its entirety.
(6) By deleting the words "Regulation" and "Regulations" wherever they
appear in Articles 4.12, 4.12.2, 4.14, 7.4, 8.5, 10.16, 12.8, 18.6 and
20.1 and substituting them with the words "Article" and "Articles"
respectively in each case.
(7) By adding the words "and in these Articles" in the first line of
Article 5.1 after the word "Memorandum".
- 21 -
22
(8) By deleting the existing Article 5.3 in its entirety and by adding the
following Articles after Article 5.2 as new Articles 5.3 and 5.4:
"5.3 (a) Subject to Article 5.4, the directors may, in their
absolute discretion and without assigning any reason
therefor, decline to register any transfer of any
share, whether or not it is a fully paid share. The
directors shall not register a transfer to a person
who is known to them to be an infant, bankrupt or
person of unsound mind provided that the directors
shall not be bound to enquire into the age or
soundness of mind of any transferee or whether or not
he is a bankrupt.
(b) Notwithstanding Article 5.4, a transfer of shares to
a transferee which is and remains a wholly-owned
subsidiary of the ultimate holding company of the
transferor member shall be permitted provided that:
(i) the obligations of the transferor member
under any agreement between all the members
will remain unaffected by the proposed
transfer; and
(ii) the shares will be re-transferred to the
transferor member immediately upon the
transferee ceasing to be a wholly-owned
subsidiary of such ultimate holding company.
(c) Where shares are transferred to a party who is not
for the time being a member of the Company, the
transferor shall cause the transferee of the shares
to deliver to the Company a deed of ratification and
accession in such form as may reasonably be required
by the other members under which the transferee shall
agree to be bound by and shall be entitled to the
benefit of any existing agreement between the members
as if the transferee was an original party thereto.
5.4 (a) Save as provided in Article 5.4(i) and subject to any
agreement between all of the members of the Company,
no transfer or disposal of any shares or any interest
in any shares shall be made by a member except in
compliance with Article 5.3 and the following
provisions of this Article 5.4 and no member shall
otherwise sell, mortgage, charge or otherwise dispose
of or encumber any shares or assign or otherwise
purport to deal with the beneficial interest therein
or any right in relation thereto separate from the
legal interest.
(b) Before transferring or disposing of its shares or any
interest in its shares (save in the case of transfer
by way of security) the member proposing to transfer
or dispose of the same (hereinafter called the
"Transferor") shall give a notice in writing
(hereinafter called a "Transfer Notice") to the
Company and the other members that it desires to
transfer or dispose of the same. The Transfer Notice
shall specify:
- 22 -
23
(i) the number of shares and/or any interest
therein which the Transferor wishes to
transfer or dispose of (which may be all or
part only of the shares then held by the
Transferor but shall in no circumstances be
5 per cent or less of the issued voting
share capital of the Company) (hereinafter
called the "Relevant Shares"); and
(ii) the price at which the Transferor is willing
to sell the Relevant Shares.
The Transfer Notice shall constitute the Company the
agent of the Transferor for the sale of the Relevant
Shares at the Prescribed Price (as defined in Article
5.4(c)) during the Prescribed Period (as defined in
Article 5.4(d)) to the other members and save as
provided in Article 5.4(d) shall not be revocable
except with the consent of the other members.
(c) If the price stated in the Transfer Notice shall be
accepted by all the other members, such price shall
be the Prescribed Price. If such price shall not be
so accepted but if within one month after the date on
which the Transfer Notice was given the Transferor
and the other members shall have agreed a price for
the sale of the Relevant Shares then such price shall
be the Prescribed Price. In default of such agreement
the directors shall forthwith request an independent
merchant bank or other financial adviser of first
class international repute (as selected by members
for the time being holding in aggregate a simple
majority of the shares) (the "Expert") to determine
and certify in writing the sum considered by it to be
the fair value of the Relevant Shares as at the date
of the Transfer Notice (the "Reference Price"). The
costs of such determination shall be borne by the
Transferor. The Expert shall act hereunder as expert
and not as arbitrator. The Expert's determination of
the Reference Price shall not be final and binding on
the Shareholders, but the Shareholders shall, with
reference to the Reference Price, negotiate in good
faith a price for the sale of the Relevant Shares. If
such negotiated price (which may or may not be the
Reference Price) is so agreed within one month of the
date on which the Expert shall have notified the
Directors of its determination of the Reference Price
(the "Reference Price Determination Date"), then such
price shall be the Prescribed Price. For the purpose
of this Article 5.4 the fair value of the Relevant
Shares shall be the higher of the Net Asset Value of
the Relevant Shares determined by reference to the
then prevailing accounting principles of the Company
and the Open Market Value of the Relevant Shares at
the date of the Transfer Notice where:
(1) the "Net Asset Value" of the Relevant Shares
shall be ascertained by dividing the net
asset value of the Company at the date of
the Transfer Notice by the number of shares
of the Company then in
- 23 -
24
issue and multiplying the resultant amount
by the number of Relevant Shares and taking
full account of any element of control
attaching to the Relevant Shares or
conferred by the transfer of the Relevant
Shares or the relevant part thereof. In
determining the net asset value of the
Company, the value attributable to any share
of Holdings ("Holdings Share") held by the
Company shall be the average of the closing
price of one Holdings Share on The Stock
Exchange of Hong Kong Limited on each of the
10 trading days on which there were dealings
in Holdings Shares on The Stock Exchange of
Hong Kong Limited immediately prior to the
date of the Transfer Notice; and
(2) the "Open Market Value" of the Relevant
Shares shall be ascertained on the following
assumptions and bases:
(i) valuing the Relevant Shares as on
an arm's length sale between a
willing vendor and a willing
purchaser;
(ii) if the Company is then carrying on
business as a going concern, on the
assumption that it will continue to
do so;
(iii) that the Relevant Shares are
subject to the restrictions on
transfers contained in these
Articles;
(iv) taking full account of any rights
and obligations attached to the
Relevant Shares whether by virtue
of any contract or otherwise; and
(v) taking full account of any element
of control attaching to the
Relevant Shares or conferred by the
transfer of the Relevant Shares or
the relevant part thereof or the
fact that the Relevant Shares
represent a minority interest only
in the Company (as the case may
be).
(d) If the Prescribed Price is accepted or
agreed as aforesaid, the Prescribed Period
shall commence on the date of the Transfer
Notice or the date of such agreement, if
later, and shall expire one month
thereafter. If the Prescribed Price is not
so accepted or agreed within one month of
the Reference Price Determination Date then
the Transfer Notice shall be deemed to have
been withdrawn and the transfer of the
Relevant Shares shall not proceed. For the
avoidance of doubt, such withdrawal of the
Transfer Notice shall not prevent the
Transferor from submitting a fresh notice in
the future in respect of a transfer of all
or any Shares held by it in accordance with
Article 5.4(b).
- 24 -
25
(e) Subject to, and promptly following,
acceptance or agreement on the Prescribed
Price as aforesaid, the Relevant Shares
shall be offered by the Company by notice in
writing to the other Shareholders for
purchase at the Prescribed Price. Such offer
shall be open for acceptance at any time
within the Prescribed Period.
(f) If there shall only be one member who
applies for all or any of the Relevant
Shares within the Prescribed Period, the
Company shall give notice in writing thereof
to the Transferor and the Transferor shall
be bound upon payment to transfer such of
the Relevant Shares to such member as he has
applied for. The purchase shall be completed
at a place and time to be appointed by the
directors not being less than three days nor
more than ten days after the date of such
notice, and, subject to compliance with the
provisions of Article 5.3, the directors
shall be bound to register the transfer.
(g) if there shall be more than one member who
applies within the Prescribed Period for all
or any of the Relevant Shares, the directors
shall allocate the Relevant Shares (or so
many of them as shall have been applied for
as aforesaid) to or amongst the applicants
in proportion as nearly as may be to the
number of shares held by them in the Company
as at the date of the Transfer Notice
provided that if not all members accept the
offer in their respective proportions in
full any Relevant Shares not so accepted
shall be used to satisfy requests from other
members as nearly as may be in proportion to
their requests. However, no member shall be
obliged to take more than the maximum number
of the Relevant Shares specified by him as
aforesaid. The directors shall forthwith
give notice of such allocations to the
Transferor and the members to whom the
Relevant Shares have been allocated and
shall specify in the said notice the place
and time, being not less than three days nor
more than ten days after the date of such
notice at which the sale of the Relevant
Shares so allocated shall be completed. The
Transferor shall be bound upon payment to
transfer the Relevant Shares so allocated to
the relevant members and, subject to
compliance with the provisions of Article
5.3, the directors shall be bound to
register the transfers.
(h) If by the foregoing procedures the directors
shall have received acceptances from members
in respect of part only of the Relevant
Shares within the Prescribed Period then
they shall forthwith give notice in writing
of that fact to the Transferor. The
Transferor shall then be entitled at any
time within six months after the date of the
directors' said notice to sell and transfer
all or part of those Relevant Shares which
have not been accepted as aforesaid to any
- 25 -
26
person or corporation approved by the other
members (such approval not to be
unreasonably withheld or delayed) at any
price, being not less than the Prescribed
Price (or a proportion of the Prescribed
Price which represents the proportion of the
Relevant Shares to be transferred) and,
subject to compliance with the provisions of
Article 5.3, the directors shall be bound to
registered the same.
(i) The foregoing provisions of this Article 5.4
shall not apply to any transfer to which the
consent in writing of all the member is
given."
(9) By adding the words "Subject to the provisions of Article 5.4(a)," at
the beginning of Article 8.1 and replacing the word "Member" in the
first line of Article 8.1 with the word "member".
(10) By inserting the words "shall be subject to the provisions of Article
5.4(a) and" between the words "Regulation 8" and "shall" in the first
line of Article 8.5.
(11) By deleting the existing Articles 10.11 and 10.12 in their entirety and
substituting them with the following Articles as new Articles 10.11 and
10.12:
"10.11 Unless otherwise determined by the Company in general meeting,
the quorum for general meetings for all purposes shall be
two-thirds of the members for the time being present in person
or by proxy, or if their number is not 3 or a multiple of 3,
then the number nearest to two-thirds but not less than 4. The
quorum shall consist of at least one (1) representative from
each Foundation Member, and no business shall be transacted at
any general meeting unless the requisite quorum herein-
mentioned is present throughout the meeting.
10.12 In the event that any general meeting is frustrated by the
absence of a quorum by reason of the absence of one or more of
the Foundation Members, such meeting should automatically be
reconvened without further notice thirty (30) days after the
original date of such meeting at the same time and place. The
members present at such reconvened meeting shall be deemed a
quorum; provided that two-thirds of the member for the time
being present in person or by proxy, or if their number is not
a multiple of 3, then the number nearest to two-thirds. No
business shall be transacted at any general meeting unless the
requisite quorum herein-mentioned is present throughout the
meeting."
(12) By adding the words "all the" between the words "of" and "members" in
the first and second lines of Article 10.20 and by deleting the words
", but if any resolution of members is adopted otherwise than by the
unanimous written consent of all members, a
- 26 -
27
copy of such resolution shall forthwith be sent to all members not
consenting to such resolutions" in Article 10.20.
(13) By adding the following Article as new Article 10.21:
"10.21 Unless a poll is demanded, all voting of members in respect of
any matters shall be by show of hands, and in the case of a
poll, every member shall have one vote for each share of which
he is the holder.".
(14) By adding the words "in accordance with Article 11.3." after the words
"the directors shall be elected" in the second line of Article 11.1 and
by deleting the existing Articles 11.1.1 and 11.1.2 in their entirety.
(15) By deleting the existing Article 11.3 in its entirety and substituting
it with the following Article as new Article 11.3:
"11.3 (a) The Company shall have a minimum of eight (8)
directors. The maximum number of directors shall be
sixteen (16).
(b) Each member shall have the right to nominate up to
two (2) directors as their respective representatives
in the board of directors. Each member shall effect
any appointment or removal by depositing written
notice at the Company's registered office and sending
a copy thereof to the other members. Any member
removing a director shall be responsible for and
shall indemnify the other members and the Company
against any claim of whatever nature arising out of
such removal. If a member ceases to hold shares in
the Company, it will procure the resignation of all
the directors appointed by it and will indemnify the
other members against any claims which may be brought
by such directors.
(c) The Company shall have one (1) Chairman and three (3)
Vice-Chairmen.
(d) The Chairman and Vice-Chairmen shall be nominated by
the Foundation Members and elected by the directors
of the Company.
(e) The directors of the Company shall have the power at
any time, and from time to time, to appoint a person
as an additional director."
(16) Be deleting the existing Article 11.5 in its entirety and substituting
it with the following Article as new Article 11.5:
"11.5 The Company may remove any director by a resolution passed by
not less than three-fourths of the vote cast by such members
as, being entitled so to do, vote in person or where proxies
are allowed, by proxy, at a meeting of the members and may by
resolution of members appoint another
- 27 -
28
person in his stead, provided that the minimum number of
directors shall not, in any circumstances, be less than eight
(8).".
(17) By adding the following Articles after Article 11.11 as new Articles
11.12 and 11.13:
"11.12 The directors shall ensure that meetings of the board of
directors of the Company are held no less than twice per year.
11.13 The office of a director shall be vacated if the director:
(a) resigns his office by notice in writing to the
Company; or
(b) becomes bankrupt or makes an arrangement with his
creditors generally; or
(c) becomes of unsound mind; or
(d) is removed from office by a resolution passed by not
less than three-fourths of the votes cast by such
members as, being entitled so to do, vote in person
or, where proxies are allowed, by proxy, at a meeting
of the members of the Company; or
(e) is removed by the member which appointed him.".
(18) By adding the sentence "A director may, and the secretary on the
requisition of a director shall, at any time summon a meeting of the
directors." to the beginning of Article 13.3 and by deleting the words
"not less than 3 days" from the first line and the words "3 days" in
the second line of the existing Article 13.3.
(19) By deleting the existing Articles 13.5 and 13.6 in their entirety and
substituting them with the following Articles as new Articles 13.5 and
13.6:
"13.5 Unless otherwise determined by the Company in general meeting,
the quorum for meetings of directors shall be two-thirds of
the directors for the time being, or if their number is not a
multiple of 3, then the number nearest to two-thirds. As a
secondary requirement, the quorum shall consist of at least
one (1) Foundation Member Director appointed by each
Foundation Member. If a quorum is not present at any meeting
because the secondary requirement is not achieved then such
meeting shall automatically be reconvened thirty (30) days
after the original date of such meeting at the same time and
place. At any such reconvened meeting the secondary
requirement as mentioned above shall no longer apply to
determine whether a quorum is present at such meeting. No
business shall be transacted at any meeting of directors
unless the requisite quorum herein-mentioned is present
throughout the meeting.
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29
13.6 At any meeting of the directors, no resolution shall be
carried unless it is approved by not less than two-thirds of
the directors present and voting at the meetings, and provided
that no more than three (3) Foundation Member Directors vote
against such resolution.".
(20) By deleting the existing Article 13.4 in its entirety and substituting
it with the following Articles as new Article 13.4:
"13.4 Subject to the approval of the board, a director may appoint
any person to act for him as an alternate director during his
absence, and such appointment shall have effect and such
appointee whilst he holds office as an alternate director
shall be entitled to notice of meetings of directors, and to
attend and vote thereat accordingly; but he shall not require
any qualification, and he shall ipso facto vacate office if
and when the appointor is present or vacates office as a
director or removes the appointee from office, and any
appointment and removal under this Article shall be effected
by notice in writing under the hand of the director making the
same.".
(21) By deleting the words "the Vice Chairman of the Board of Directors
shall preside. If there is no Vice Chairman of the Board of Directors
or if the Vice Chairman of the Board of Directors is not present at the
meeting" in the third line to the sixth line of Article 13.7.
(22) By adding the sentence "Any such resolution in writing may be signed on
behalf of a director by his duly appointed alternate." to the end of
Article 13.8.
(23) By replacing the word "The" with the word "the" where it first appears
in the first line of Article 14.1; by adding the words "Subject to the
provisions of Article 11.3(d)," at the beginning of Article 14.1; and
by deleting the words "a Vice Chairman" in the third line of Article
14.1 and replacing them with the words "one or more Vice Chairmen".
(24) By deleting the words "the Vice Chairman to act in the absence of the
Chairman," in the fifth line of Article 14.2.
(25) By adding the following Article after Article 15.2 as new Article 15.3:
"15.3 Any director may be employed by or hold any office of profit
under the Company, except that of auditors of the Company, any
may act either personally or as a member of a firm or render
any professional service to the Company, and may receive
remuneration from the Company for so doing in addition to any
remuneration payable to him as a director."
(26) By renumbering the existing Article 17 as Article 17.1 and by adding
the words "or persons" after the word "person" in the third line of
Article 17.1 (as renumbered).
- 29 -
30
(27) By adding the following Articles after Article 17.1 (as renumbered) as
new Articles 17.2 and 17.3:
"17.2 The Seal of the Company shall be kept by the directors and
shall not be used except with their authority.
17.3 All cheques, bills of exchanges, promissory notes and other
negotiable instruments issued or required to be signed,
endorsed or accepted or otherwise negotiated by the Company
shall be signed by such person or persons as the board of
directors shall from time to time appoint.".
(28) By deleting the words "The Company may by a resolution of directors" in
the first line of Article 18.2 and by substituting them with the words
"The directors may, subject to the approval of the members in general
meeting,".
(29) By inserting the words ", subject to the approval of the members in
general meeting," between the words "may" and "from" in the first line
of Article 18.2.
(30) By deleting the words "3 years" in the second line of Article 18.5 and
substituting them with the words "1 year"; and by deleting the words
"forfeited by resolution of the directors for the benefit of the
Company" in the third line of Article 18.5 and substituting them with
the words "invested or otherwise made use of by the directors for the
benefit of the Company until claimed".
(31) By adding the following Articles after Article 18.10 as new Articles
18.11, 18.12, 18.13 and 18.14:
"18.11 The Company in general meeting may upon the recommendation of
the directors resolve that it is desirable to capitalise any
part of the amount for the time being standing to the credit
of any of the Company's reserve accounts or to the credit of
the profit and loss account or otherwise available for
distribution, and accordingly that such sum be set free for
distribution amongst the members who would have been entitled
thereto if distributed by way of dividend in the same
proportions and to apply either in or towards paying up any
amounts for the time being unpaid on any shares held by such
members respectively or paying up in full unissued shares or
debentures of the Company to be allotted and distributed
credited as fully paid up to and amongst such members in the
proportion aforesaid, or partly in the one way and partly in
the other, and the directors shall give effect to such
resolution.
18.12 A transfer shall not pass the right to any dividend declared
thereon before the registration of the transfer.
- 30 -
31
18.13 If two or more persons are registered as joint holders of any
share, any one of such persons may give effectual receipts for
any dividends or for other moneys payable in respect of such
share.
18.14 The Directors may retain any interest or dividends on which
the Company has a lien, and may apply the same in or towards
satisfaction of the debts, liabilities or engagements in
respect of which the lien exists.".
(32) By deleting the existing Article 21.1 in its entirety and substituting
it with the following Article as new Article 21.1:
"21.1 (a) A notice may be given by the Company to any member
holding registered shares either personally or by
sending it by post, telex, or facsimile to him or to
his registered address, inside or outside Hong Kong
as the case may be. If the said address is outside
Hong Kong, service shall be effected by prepaid
registered air mail post, telex or facsimile. When a
notice is sent by post, service of the notice shall
be deemed to be effected by properly addressing,
prepaying, and posting of letter containing the
notice, and to have been effected in the case of a
notice of a meeting at the expiration of three days
after the letter containing the same is posted, and
in any other case at the time at which the letter
would be delivered in the ordinary course of post.
When a notice is sent by fax, service of the notice
shall be deemed to by effected by properly addressing
it marked to the immediate attention of the member's
representative, as earlier notified (if any), and to
have been effected at the time of despatch subject to
receipt of machine-printed confirmation of error-free
despatch.
(b) A notice may be given by the Company to any member
holding bearer shares in the manner provided in the
Memorandum.
(c) A notice may be given by the Company to the persons
entitled to a share in consequence of the death or
bankruptcy of a member (or for other reason(s)
acceptable by the directors) by sending it through
the post in a prepaid letter addressed to them by
name, or by the title of representatives of the
deceased, or trustee of the bankrupt, or by any like
description, at the address, as notified to the
Company supplied for the purpose by the persons
claiming to be entitled, or (until such address has
been so supplied) by giving the notice in any manner
in which the same might have been given if the death
or bankruptcy had not occurred.
(d) Notice of every general meeting shall be given in any
manner hereinbefore authorised to:
(i) every member; and
(ii) every person entitled to a share in
consequence of Article 21.1(c).
- 31 -
32
No other person shall be entitled to receive notices
of general meetings.
(e) All notices required to be given to the members under
these Articles must be in the Chinese or English
language or both."
- 32 -
33
DATED 6 December 1996
----------------------
(1) CHINA TRAVEL XXX XXX (MACAU) LIMITED
(2) SINGASAT PTE LIMITED
(3) XXXXX XXX DEVELOPMENT & INVESTMENT LIMITED
(4) XXXX XXX INTERNATIONAL TELECOMMUNICATION COMPANY LIMITED
(5) CHINA TELECOMMUNICATIONS BROADCAST SATELLITE CORPORATION
(6) CHINA AEROSPACE CORPORATION
(7) CHINA SATELLITE LAUNCH & TRACKING CONTROL GENERAL
and
(8) APT SATELLITE INTERNATIONAL COMPANY LIMITED
-------------------------------------
SHAREHOLDERS' AGREEMENT
---------------------------------------
34
CONTENTS
Clause Heading Page
1. Interpretation.........................................................
2. Organisation of the Company ...........................................
3. Activities of the Company..............................................
4. Further Capital........................................................
5. Matters Requiring the Consent of All Shareholders .....................
6. Further Obligations and Undertakings of Shareholders...................
7. Transfers of Shares ...................................................
8. Default ...............................................................
9. Confidentiality .......................................................
10. Miscellaneous .........................................................
11. Duration of Agreement .................................................
12. Governing Law and Jurisdiction ........................................
13. Counterparts ..........................................................
Execution .............................................................
Schedule 1 - Transfers of Shares ........................................
Schedule 2 - The Resolution .............................................
