EXHIBIT 10.16C
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AMENDED AND RESTATED
NONCOMPETITION AGREEMENT
between
INTERNATIONAL WIRELESS COMMUNICATIONS, INC.
and
STAR TELECOM HOLDING LIMITED
Dated as of April 4, 1997
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TABLE OF CONTENTS
ARTICLE/SECTION PAGE
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Noncompetition. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Corporate Opportunities . . . . . . . . . . . . . . . . . . . . . . . 3
4. Term and Termination. . . . . . . . . . . . . . . . . . . . . . . . . 3
5. Rights and Remedies Upon Breach . . . . . . . . . . . . . . . . . . . 3
6. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
7. Enforceability in Jurisdictions . . . . . . . . . . . . . . . . . . . 4
8. Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
9. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
10. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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AMENDED AND RESTATED NONCOMPETITION AGREEMENT
This AMENDED AND RESTATED NONCOMPETITION AGREEMENT (this "Agreement")
is entered into this 4th day of April 1997 by and between International Wireless
Communications, Inc., a Delaware corporation with offices at 000 Xxxxx Xx Xxxxxx
Xxxx, Xxx Xxxxx, Xxxxxxxxxx, 00000, Xxxxxx Xxxxxx of America ("IWC") and Star
Telecom Holding Limited, a Hong Kong company with offices at 6/F, Star Telecom
Tower, 414 Xxxx Xxxx Road, Xxxx Xxxx, Kowloon, Hong Kong ("STHL"), amending and
restating the Noncompetition Agreement between STHL and IWC, dated as of
November 7, 1996 (the "Original Noncompetition Agreement").
WHEREAS, STHL, IWC and Star Digitel Limited ("SDL") have entered into
a Subscription Agreement (the "Subscription Agreement") whereby, among other
things, STHL and IWC subscribed for shares of SDL.
WHEREAS, Vanguard China, Inc. ("Vanguard"), STHL and SDL have entered
into a Stock Purchase Agreement (the "Stock Purchase Agreement") dated as of
February 25, 1997 for the purchase by Vanguard of SDL shares from STHL.
WHEREAS, IWC, STHL, SDL and Vanguard intend to enter into an Amended
and Restated Shareholders' Agreement (the "Shareholders' Agreement") dated as of
the date hereof, amending and restating the Shareholders' Agreement entered into
by SDL, STHL and IWC on November 7, 1996, to regulate certain matters relating
to SDL.
WHEREAS, the parties hereto wish to amend and restate the Original
Noncompetition Agreement to be consistent with the Shareholders' Agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree to amend and restate the Original Noncompetition Agreement in its entirety
so that, as amended and restated, it reads in its entirety as follows:
1. DEFINITIONS. For purposes of this Agreement, the following
capitalized terms have the following meanings:
(a) "Affiliate" of a party means any Person controlling,
controlled by or under common control with such party, PROVIDED, HOWEVER, that,
for the avoidance of doubt, China Strategic Holdings Limited, Vanguard Cellular
Systems, Inc., or any of their respective direct or indirect subsidiaries (as
defined in the Hong Kong Companies Ordinance, Chapter 32) shall not be regarded
as an "Affiliate" of any party for purposes of this Agreement. "Control" for
this purpose means the possession, directly or indirectly, of the
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power to direct or cause the direction of the management and policies of a
Person, by the ownership of voting securities, or by contract or otherwise.
(b) "IWC Restricted Parties" means, collectively, IWC and each
Affiliate of IWC.
(c) "Person" means any natural person, corporation, partnership,
firm, joint venture, association, joint stock company, trust, unincorporated
association, governmental authority or other legal entity.
(d) "Restricted Business" means the provision of mobile
telephone services, or the provision of technical or other services or the
licensing of technology or intellectual property (including, without limitation,
proprietary information, trademarks or patents) in support of mobile telephone
services, but excluding (A) the manufacturing, trading, distribution and
servicing of any telecommunications product or equipment, and (B) the provision
of mobile telephone roaming services that may be carried out by P Plus
Communications Limited, (i) for a Restricted Party's own account, (ii) by
rendering services to any Person engaged in the provision of mobile telephone
services, or the provision of technical or other services or the licensing of
technology or intellectual property (including, without limitation, proprietary
information, trademarks or patents) in support of mobile telephone services, but
excluding (A) the manufacturing, trading, distribution or servicing of any
telecommunications product or equipment and (B) the provision of mobile
telephone roaming services that may be carried out by P Plus Communications
Limited, or (iii) by becoming interested in any capacity, including as a
partner, shareholder, principal, agent, trustee or consultant, in any Person
engaged in the provision of mobile telephone services, or the provision of
technical or other services or the licensing of technology or intellectual
property (including, without limitation, proprietary information, trademarks or
patents) in support of mobile telephone services, but excluding (A) the
manufacturing, trading, distribution or servicing of any telecommunications
product or equipment and (B) the provision of mobile telephone roaming services
that may be carried out by P Plus Communications Limited, in the Territory.
(e) "Restricted Parties" means, collectively, the STHL
Restricted Parties and the IWC Restricted Parties.
(f) "STHL Restricted Parties" means, collectively, STHL and each
Affiliate of STHL.
(g) "Territory" means only the following seven provinces of the
People's Republic of China: Gansu Province, Guangdong Province, Hebei Province,
Hainan Province, Shandong Province, Sichuan Province and Yunnan Province.
2. NONCOMPETITION. Subject to the provisions of Section 3, (i) none
of the STHL Restricted Parties shall, without the written consent of IWC (which
may be withheld by IWC in its sole discretion), directly or indirectly engage in
a Restricted Business which is in
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direct competition with any Restricted Business engaged in or operated by SDL
and (ii) none of the IWC Restricted Parties shall, without the written
consent of STHL (which may be withheld by STHL in its sole discretion),
directly or indirectly engage in a Restricted Business which is in direct
competition with any business engaged in or operated by SDL. Each of STHL
and IWC shall take all measures necessary to ensure that its respective
Affiliates comply with the terms of this Agreement and shall, upon the
request of the other party, cause its Affiliates to execute a deed of
adherence to this Agreement in such form as the other party may reasonably
request.
3. CORPORATE OPPORTUNITIES. If a Restricted Party offers to the
shareholders of SDL and the board of directors of SDL (the "SDL Board") for
consideration the opportunity for SDL to make an investment in a Restricted
Business that is not in direct competition with any business theretofore engaged
in or operated by SDL, but the shareholders of SDL and the SDL Board fail to
adopt a resolution approving and authorizing SDL's investment in such Restricted
Business or fail to respond to the Restricted Party within 14 days after the
Restricted Party has notified the shareholders of SDL and the SDL Board of this
investment opportunity, then, (i) in the case of an opportunity brought to SDL
by IWC, notwithstanding that IWC and its permitted transferees in their capacity
as shareholders of SDL or that the nominees of IWC and its permitted transferees
on the SDL Board, shall in each case have voted in favor of SDL's investment in
such opportunity, IWC, as the Restricted Party, shall have the right to invest
directly or indirectly in such Restricted Business, and (ii) in the case of an
opportunity brought to SDL by STHL, notwithstanding that STHL and its permitted
transferees in their capacity as shareholders of SDL or that the nominees of
STHL and its permitted transferees on the SDL Board, shall in each case have
voted in favor of SDL's investment in such opportunity, STHL as the Restricted
Party, shall have the right to invest directly or indirectly in such Restricted
Business.
4. TERM AND TERMINATION. This Agreement shall remain in effect
until the earliest of (i) the date that is 10 years after the date hereof, (ii)
the date STHL or IWC ceases to hold shares in SDL, (iii) the dissolution or
winding up of SDL, (iv) the termination or expiration of the Shareholders'
Agreement and (v) the insolvency of SDL, the commission of any act of bankruptcy
by SDL, or the commencement of proceedings with respect to SDL for relief under
bankruptcy or insolvency laws or laws relating to the relief of debtors,
reorganizations, arrangements, compositions or extensions.
5. RIGHTS AND REMEDIES UPON BREACH. If any Restricted Party
breaches, or threatens to commit a breach of, any of the provisions of Section 2
(the "Restrictive Covenant"), each non-defaulting Restricted Party shall have
the following rights and remedies, each of which rights and remedies shall be
independent of the others and severally enforceable and each of which is in
addition to, and not in lieu of, any other rights and remedies available to such
non-defaulting Restricted Party under law or in equity:
(a) SPECIFIC PERFORMANCE. The right and remedy to have the
Restrictive Covenant specifically enforced by any court of competent
jurisdiction, it being agreed that any breach or threatened breach of the
Restrictive Covenant would cause
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irreparable injury to such non-defaulting Restricted Party and that money
damages would not provide an adequate remedy to such non-defaulting
Restricted Party. In seeking such injunctive relief, a non-defaulting
Restricted Party shall not be obligated to secure any bond or other security.
(b) ACCOUNTING. The right and remedy to require the Restricted
Party to account for and pay over to the non-defaulting Restricted Parties, all
compensation, profits, monies, accruals, increments or other benefits derived or
received by such Restricted Party as the result of any transactions by such
Restricted Party constituting a breach of the Restrictive Covenant.
6. SEVERABILITY. The Restricted Parties acknowledge and agree that
the Restrictive Covenant is reasonable and valid in geographical and temporal
scope and in all other respects. If any court determines that the Restrictive
Covenant, or any part thereof, is invalid or unenforceable, the remainder of the
Restrictive Covenant shall not thereby be affected and shall be given full
effect without regard to the invalid portions. If any court determines that the
Restrictive Covenant, or any part thereof, is unenforceable because of the
duration or geographic scope of such provision, such court shall have the power
to reduce the duration or scope of such provision, as the case may be, and, in
its reduced form, such provision shall then be enforceable.
7. ENFORCEABILITY IN JURISDICTIONS. The Restricted Parties intend
to and hereby confer jurisdiction to enforce the Restrictive Covenant upon the
courts of any jurisdiction within the geographical scope of the Restrictive
Covenant. If the courts of any one or more of such jurisdictions hold the
Restrictive Covenant unenforceable by reason of the breadth of such scope or
otherwise, it is the intention of the Restricted Parties that such determination
shall not bar or in any way affect a non-defaulting Restricted Party's right to
the relief provided above in the courts of any other jurisdiction within the
geographical scope of the Restrictive Covenant, as to breaches of the
Restrictive Covenant in such other respective jurisdictions, the Restrictive
Covenant as it relates to each jurisdiction being, for this purpose, severable
into diverse and independent covenants.
8. WAIVER. The failure of a non-defaulting Restricted Party to
insist in any one or more instances upon performance of any of the provisions of
this Agreement or to take advantage of any such non-defaulting Restricted
Party's rights hereunder shall not be construed as a waiver of any such
provisions or the relinquishment of any such rights, and the same shall continue
and remain in full force and effect. No single or partial exercise by any party
of any right or remedy shall preclude other or future exercise thereof or the
exercise of any other right or remedy. Waiver by any party of any breach of any
provision of this Agreement shall not constitute or be construed as a continuing
waiver or as a waiver of any other breach of any other provision of this
Agreement.
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9. MISCELLANEOUS.
(a) NOTICES. Any notice or other communications contemplated or
required by this Agreement by any party hereto shall be given in writing and
shall be delivered either by (a) personal delivery or (b) facsimile (with a copy
sent by overnight courier or certified airmail) addressed to the recipient at
the address specified below or at such other address as the intended recipient
previously shall have designated by written notice to the other party hereto.
All notices and other communications contemplated or required by this Agreement
delivered in person or sent by facsimile shall be deemed to have been delivered
to and received by the recipient and shall be effective on the date of personal
delivery or the date sent, respectively. Notice not given in writing shall be
effective only if acknowledged in writing by a duly authorized representative of
the party to whom it was given.
(i) If to IWC to:
International Wireless Communications, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
U.S.A.
Attention: Xxxxxxx Xxxxx Xxxxxxxx
Facsimile No.: 0 (000) 000-0000
(ii) If to STHL, to:
Star Telecom Holding Limited
414 Xxxx Xxxx Road,
Xxxx Xxxx
Kowloon, Hong Kong
Attention: Company Secretary
Facsimile No.: (852)
Either party may change the address to which notices and other
communications are to be directed by giving notice of such change to the other
party in the manner provided in this Subsection.
(b) GOVERNING LAW. THE INTERPRETATION AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF ENGLAND AND WALES.
(c) DISPUTE RESOLUTION.
(i) Any dispute or claim arising out of or relating to
this Agreement, or the breach, termination or invalidity hereof, shall be
finally settled by
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arbitration under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce (the "Rules") as are currently in force
and as may be amended by the rest of this Section 9(c). For the purpose of
such arbitration, there shall be one or more arbitrators appointed in
accordance with the Rules (such single arbitrator or board of arbitrators,
as the case may be, are referred to below as the "Arbitration Board").
The place of arbitration shall be Hong Kong. All arbitration proceedings
shall be conducted in the English language. The arbitrators shall decide
any such dispute or claim strictly in accordance with the governing law
specified in Section 9(b) of this Agreement. Judgment upon any arbitral
award rendered hereunder may be entered in any court having jurisdiction,
or application may be made to such court for a judicial acceptance of the
award and an order of enforcement, as the case may be.
(ii) Each party shall cooperate in good faith to expedite
(to the maximum extent practicable) the conduct of any arbitral proceedings
commenced under this Agreement.
(iii) The costs and expenses of the arbitration,
including, without limitation, the fees of the Arbitration Board, shall be
borne equally by each party to the dispute or claim, and each party shall
pay its own fees, disbursement and other charges of its counsel.
(iv) Any award made by the Arbitration Board shall be
final and binding on the parties hereto. The parties expressly agree to
waive the applicability of any laws and regulations that would otherwise
give the right to appeal the decisions of the Arbitration Board so that
there shall be no appeal to any court of law for the award of the
Arbitration Board, and a party shall not challenge or resist the
enforcement action taken by another party in whose favor the award of the
Arbitration Board was given.
(d) ASSIGNMENT AND SUCCESSION. STHL may not assign this
Agreement or its rights or obligations hereunder without the prior written
consent of IWC. IWC may assign this Agreement and its rights and obligations
hereunder to any entity that controls, is controlled by or is under common
control with IWC without the prior consent of STHL. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns.
(e) ENTIRE AGREEMENT; AMENDMENTS. The terms and conditions
contained in this Agreement and the other agreements and instruments expressly
referred to herein constitute the entire agreement between the parties hereto
regarding the subject matter hereof and shall supersede all previous
communications, either oral or written, between the parties hereto with respect
to the subject matter hereof including the Original Noncompetition Agreement.
The parties hereto agree that the Original Noncompetition Agreement is hereby
terminated and is replaced in its entirety by this Agreement. The Original
Noncompetition Agreement shall be of no further force or effect. The parties
hereto agree, however, that the termination of the Original Noncompetition
Agreement shall be without prejudice to any
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causes of action that arose prior to the date hereof under the Original
Noncompetition Agreement. This Agreement may only be amended by a written
agreement duly executed by the parties hereto.
10. HEADINGS. The headings contained in this Agreement are for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
INTERNATIONAL WIRELESS
COMMUNICATIONS, INC.
By: /s/ Xxxx X. X. XxXxxxx
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Name: Xx. Xxxx X. X. XxXxxxx
Title: Vice Chairman and
Managing Director, Asia
STAR TELECOM HOLDING LIMITED
By: /s/
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Name:
Title:
