EXHIBIT 10.13G
AMENDMENT AGREEMENT
THIS AMENDMENT AGREEMENT (the "Agreement") is made on the 29 day of October
1996 by and among:
1. PT. RAJASA HAZANAH PERKASA, a company duly established under the laws of
the Republic of Indonesia, having its office at Xxxxx Xxxxxxx, Xxxxx
Xxxxxxx Xxxxx Xx. 0, Xxxxxxx 00000, Xxxxxxxx of Indonesia (hereinafter
referred to as the "Company");
2. NISSHO IWAI CORPORATION, a company duly established under the laws of
Japan, having its office at 0-0, Xxxxxx 0-Xxxxx, Xxxxxx-xx, Xxxxx 000,
Xxxxx (hereinafter referred to as the "New Shareholder");
3. PT. BINA REKSA PERDANA, a company duly established under the laws of the
Republic of Indonesia, having its office at Arthaloka Building 4th Floor,
Jalan Jend. Sudirman Xxx. 0, Xxxxxxx Xxxxxxx, Xxxxxxxx of Indonesia
(hereinafter referred to as "BRP");
4. INTERNATIONAL WIRELESS COMMUNICATIONS, INC, a company duly established
under the laws of the State of Delaware, United States of America, having
its office at 000 Xxxxx Xx Xxxxxx, Xxxxx 0000 Xxx Xxxxx, Xxxxxxxxxx 00000,
Xxxxxx Xxxxxx (hereinafter referred to as "IWC"); and
5. PT. DELTONA SATYA DINAMIKA, a company duly established under the laws of
the Republic of Indonesia, having its office at Xxxxxxxxx Xxxxxxxx 0 Xx.
0X, Xxxxx XX. Rasuna Said 1, Jakarta Selatan, Republic of Indonesia
(hereinafter referred to as the "DSD"; BRP, IWC and DSD are hereinafter
collectively referred to as the "Existing Shareholders" and individually as
an "Existing Shareholder").
RECITALS
WHEREAS, the Existing Shareholders and the Company are party to a
Shareholders Agreement dated 9 November 1995 (the "Shareholders Agreement");
WHEREAS, the New Shareholder is party to a Subscription Agreement dated the
date hereof among the New Shareholder, Nissho Iwai Hong Kong Corporation
Limited ("NIHK"), the Existing Shareholders and the Company (the
"Subscription Agreement"), pursuant to which the New Shareholder will, after
certain BKPM, Ministry of Justice and other approvals have been obtained,
subscribe for 773 (seven hundred seventy three) newly issued shares of the
Company (the "New Shares"), constituting three percent (3%) of the
anticipated fully issued and outstanding shares of the Company;
WHEREAS, the New Shareholder, NIHK and the Company have entered into a Loan
Agreement dated the date hereof, pursuant to which NIHK has agreed to lend
US$4,400,000 to the Company (the "Loan") as a prepayment for the issuance of
the New Shares to the New Shareholder and if the New Shares are not issued to
the New Shareholders by the date six (6) months after the proceeds of the
Loan have been disbursed to the Company, the New Shareholder shall be
entitled to acquire 773 shares directly from the Existing Shareholders (the
"Existing Shares") by assigning the Loan but excluding all accrued interest
thereon to the Existing Shareholders and remitting the sum of US$4,100,000 to
such Existing Shareholders, all pursuant to the terms of the Subscription
Agreement and the Loan Agreement.
WHEREAS, pursuant to the terms of the Loan Agreement and the Subscription
Agreement, it is a condition precedent to the obligation of NIHK to make the
Loan and for the New Shareholder to subscribe for the New Shares thereunder,
that the Company, the Existing Shareholders and the New Shareholder amend the
Shareholders Agreement to provide INTER ALIA for the admission of the New
Shareholder as a party to the Shareholders Agreement; and
WHEREAS, the Existing Shareholders and the New Shareholder wish to amend the
Shareholders Agreement in the manner contemplated in the Loan Agreement.
NOW THEREFORE, having regard to the above and based on the mutual promises
and covenants herein contained, the parties agree that the Shareholders
Agreement be, and it hereby is, amended as follows:
1. ADMISSION OF NEW SHAREHOLDER. The New Shareholder hereby agrees that on
the date that the New Shares are duly issued to the New Shareholder in
accordance with the terms of the Subscription Agreement or the date the
Existing Shares are acquired by the New Shareholder (the "Effective Date"),
it shall be fully bound by the terms and conditions of the Shareholders
Agreement, as hereby amended, as a party thereto, and the Existing
Shareholders agree to the admission of the New Shareholder as a party to
such agreement. The parties agree that from and after the Effective Date
each reference in the Shareholders Agreement, as hereby amended, to
"Party", "Parties", "party" or "parties" shall be deemed to include the New
Shareholder.
2. ARTICLE 5.7 - GUARANTEE OBLIGATIONS. The Existing Shareholders and the
Company agree that the New Shareholder shall not be required to furnish any
guarantees or other obligations in respect to any financing obtained by the
Company as set forth in Article 5.7 of the Shareholders Agreement.
3. ARTICLE 6.1(c). The first three lines and the last four lines of Article
6.1(c) of the Shareholders Agreement shall be amended to read as follows:
(c) each of the Parties shall comply with the provisions of all applicable
national, federal, state, provincial, and local laws, ordinances and
regulations of the United States of America, Japan and the Republic of
Indonesia...
(iv) to any other persons or entity, the payment of which would
violate the laws, or regulations having the force of law, of the
United States of America, Japan or the Republic of Indonesia or any
other governmental entity having jurisdiction over the activities
being carried out under this Agreement.
4. ARTICLE 14.3 - NOTICES. The Shareholders Agreement shall be amended by
inserting the following provision after the first paragraph of Article
14.3:
If to Nissho Iwai Corporation, addressed to:
NISSHO IWAI CORPORATION
0-0, Xxxxxxx 0-Xxxxx
Xxxxxx-xx, Xxxxx 000
Xxxxx
Facsimile: (000) 0000-0000
Attention: Xxxxxxx Xxxxx
---------------
General Manager
5. PUT OPTION. In the event the Company acquires an equity interest or
invests in any other company or entity which the New Shareholder considers,
in its absolute discretion, objectionable for whatever reason, the New
Shareholder shall have the right to sell all, but not less than all, of the
New Shares or the Existing Shares (as the case may be) to the Company or to
all of the Existing Shareholders, upon notice (the "Notice") to the Company
or to the Existing Shareholders, as the case may be (the "Purchaser(s)"),
for an amount equal to US$8,500,000 (UNITED STATES DOLLARS EIGHT MILLION
FIVE HUNDRED THOUSAND). Upon receipt of the Notice, the Purchaser(s) shall
take all such action necessary to promptly obtain the necessary consents
and approvals to effect the sale of the New Shares or the Existing Shares
(as the case may be) to the Purchaser(s) within ninety (90) days of the
date of receipt of the Notice. The Purchaser(s) may also arrange for a
third party to acquire the New Shares or the Existing Shares (as the case
may be) from the New Shareholder, provided the sale of the New Shares or
the Existing Shares (as the case may be) shall occur within ninety (90)
days of the date the Notice is delivered to the Purchaser(s) and at least
US$8,500,000 of the proceeds are paid to the New Shareholder. The right to
sell the New Shares or the Existing Shares (as the case may be) hereunder
shall expire on the date ten (10) years after the Effective Date.
6. TERMS UNCHANGED. Except as expressly amended hereby, all of the terms and
conditions of the Shareholders Agreement shall remain in full force and
effect.
7. NEW SHAREHOLDERS AGREEMENT. In the event that a new investor or strategic
partner subscribes for shares in the Company prior to or after the
Effective Date, the New Shareholder shall be invited to participate in any
and all meetings related to the negotiation of the terms and conditions of
any new shareholder, joint venture or other similar agreement setting forth
the rights and obligations of the shareholders of the Company in respect of
the Company. No such agreement may be entered into without the signature
and participation of the New Shareholder.
8. SEVERABILITY. If one or more of the provisions hereof shall be invalid,
illegal or unenforceable in any respect under any applicable law or
decision, the validity, legality and enforceability of the remaining
provisions contained herein shall not be affected or impaired in any way.
The Company and each of the Existing Shareholders shall execute such
additional documents as the New Shareholder may request in order to give
effect (so as to make the same valid, legal and enforceable) to any
provision hereof which is determined to be invalid, illegal or
unenforceable.
9. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
10. GOVERNING LAW AND DISPUTE RESOLUTION. Article 13 of the Shareholders
Agreement is hereby incorporated into and made an inseparable part of this
Shareholders Agreement.
IN WITNESS WHEREOF the parties have executed or caused their duly authorized
representatives to execute this Agreement on the day and year first above
written.
PT. RAJASA HAZANAH PERKASA
By /s/ Suprapto Pegent
---------------------------------------
Suprapto Pegeng
President Director
NISSHO IWAI CORPORATION
By /s/ Xxxx Xxxx
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Xxxx Xxxx under a Power of Attorney
dated 25 October 1996
PT. BINA REKSA PERDANA
By /s/ Xxxxx Xxxxxxxxx By /s/ Hotomo Mandala Putra
----------------------------- -----------------------------------
Xxxxx Xxxxxxxxx Hutomo Mandala Putra
President Director President Commissioner
INTERNATIONAL WIRELESS COMMUNICATIONS, INC.
By /s/ Xxxx XxXxxxx
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Xxxx XxXxxxx
Vice Chairman
PT. DELTONA SATYA DINAMIKA
By /s/ Amir Xxxxx Xxxxxxx
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Amir Xxxxx Xxxxxxx
Director
