SHAREHOLDERS’ AGREEMENT
EXECUTION COPY
EXHIBIT 3
SHAREHOLDERS’ AGREEMENT
This SHAREHOLDERS’ AGREEMENT (this “Shareholders’ Agreement”) is entered into and
effective as of June 28, 2007, by and among ASIA PACIFIC WIRE & CABLE CORPORATION LIMITED, a
Bermuda company (“APWC” or the “Company”), PACIFIC ELECTRIC WIRE & CABLE CO., LTD.,
a Taiwan, ROC company (“PEWC”), and SOF INVESTMENTS, L.P., a Delaware limited partnership,
(“SOF”, and, together with APWC and PEWC, collectively referred to as, the
“Parties” and, each individually, a “Party”).
RECITALS
WHEREAS, as of the date hereof, PEWC beneficially Owns in the aggregate 7,664,615 Shares of
the Common Stock of APWC, US$0.01 par value per share (the “Common Stock”), constituting
approximately fifty-five and four-tenths percent (55.4%) of the issued and outstanding Common
Stock;
WHEREAS, as of the closing of the Stock Purchase Agreement, SOF will beneficially Own in the
aggregate 2,766,154 Shares of the Common Stock, constituting approximately twenty percent (20%) of
the issued and outstanding Common Stock;
WHEREAS, the Company has not completed an audit of its financial statements since the fiscal
year ended December 31, 2003 and it is the goal of the Company, among other actions intended to
enhance shareholder value, to take such steps as are reasonably necessary to become current in its
periodic reporting under the Exchange Act;
WHEREAS, each of the signatories hereto has full power and authority to act on behalf of the
Parties listed on such signature pages in connection with this Shareholders’ Agreement; and
WHEREAS, the Parties deem it in their best interest to enter into this Shareholders’ Agreement
on the terms and subject to the conditions as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the agreements and covenants
contained in this Shareholders’ Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Certain capitalized terms as used herein shall have the meanings set
forth in Appendix A (Definitions) hereto which is incorporated herein by reference.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 APWC Representations and Warranties. APWC represents and warrants to SOF and PEWC
as follows:
(a) Organization and Good Standing. APWC is a company limited by shares duly
organized and validly existing, and in good standing under the laws of the Islands of Bermuda.
(b) Authority; No Conflict.
(i) Upon the execution and delivery by APWC, this Shareholders’ Agreement will
constitute the legal, valid, and binding obligations of APWC, enforceable against
APWC in accordance with its respective terms. APWC has the right, power, and
authority to execute and deliver this Shareholders’ Agreement and, subject to a
Permitted Exception, to perform its obligations under this Shareholders’ Agreement.
(ii) Neither the execution and delivery of this Shareholders’ Agreement by APWC
nor the consummation or performance of any of the Contemplated Transactions by APWC
will:
(A) conflict with, or result in a breach of any provision of APWC’s
Organizational Documents, or any resolution adopted by the board of
directors or the shareholders of APWC;
(B) give any Person the right to prevent, delay or otherwise interfere
with any of the Contemplated Transactions, subject to a Permitted Exception;
(C) conflict with or violate any Legal Requirement or Order to which
APWC may be subject; or
(D) conflict with, result in any breach of, constitute a default (or an
event that, with notice or lapse of time or both, would become a default)
under, or result in the acceleration, modification or termination of, any
Contract to which APWC is a party or by which APWC may be bound.
(iii) APWC is not and will not be required to obtain any Consent, other than
such as have been obtained, from any Person in connection with the execution and
delivery of this Shareholders’ Agreement or, subject to a Permitted Exception, the
consummation or performance of any of the Contemplated Transactions.
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(c) Capitalization. The authorized share capital of the Company consists of
20,000,000 Shares of Common Stock, par value US$0.01 per share, of which 13,830,769 Shares are
issued and outstanding.
2.2 PEWC Representations and Warranties. PEWC represents and warrants to SOF and APWC
as follows:
(a) Organization and Good Standing. PEWC is a corporation duly organized, validly
existing under the laws of Taiwan, ROC.
(b) Authority; No Conflict.
(i) Upon the execution and delivery by PEWC, this Shareholders’ Agreement will
constitute the legal, valid, and binding obligations of PEWC, enforceable against
PEWC in accordance with its respective terms. PEWC has the right, power, and
authority to execute and deliver this Shareholders’ Agreement and, subject to a
Permitted Exception, to perform its obligations under this Shareholders’ Agreement.
(ii) Neither the execution and delivery of this Shareholders’ Agreement by PEWC
nor the consummation or performance of any of the Contemplated Transactions by PEWC
will:
(A) conflict with, or result in a breach of any provision of PEWC’s
Organizational Documents, or any resolution adopted by the board of
directors or the shareholders of PEWC;
(B) give any Person the right to prevent, delay, or otherwise interfere
with any of the Contemplated Transactions, subject to a Permitted Exception;
(C) conflict with or violate any Legal Requirement or Order to which
PEWC may be subject; or
(D) conflict with, result in any breach of, constitute a default (or an
event that, with notice or lapse of time or both, would become a default)
under, or result in the acceleration, modification or termination of any
Contract to which PEWC is a party or by which PEWC may be bound.
(iii) PEWC is not and will not be required to obtain any Consent, other than
such as have been obtained, from any Person in connection with the execution and
delivery of this Shareholders’ Agreement or the consummation or, subject to a
Permitted Exception, performance of any of the Contemplated Transactions.
(c) PEWC Owns 7,664,615 Shares of Common Stock.
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2.3 SOF Representations and Warranties. SOF represents and warrants to APWC and PEWC
as follows:
(a) Organization and Good Standing. SOF is a limited partnership duly organized,
validly existing, and in good standing under the laws of the State of Delaware and is controlled by
MSD Capital, L.P., a Delaware limited partnership.
(b) Authority; No Conflict.
(i) Upon the execution and delivery by SOF, this Shareholders’ Agreement will
constitute the legal, valid, and binding obligations of SOF, enforceable against SOF
in accordance with its respective terms. SOF has the right, power, and authority to
execute and deliver this Shareholders’ Agreement and, subject to a Permitted
Exception, to perform its obligations under this Shareholders’ Agreement.
(ii) Neither the execution and delivery of this Shareholders’ Agreement by SOF
nor the consummation or performance of any of the Contemplated Transactions by SOF
will:
(A) conflict with, or result in a breach of any provision of SOF’s
Organizational Documents, or any resolution adopted by general partner of
SOF
(B) give any Person the right to prevent, delay, or otherwise interfere
with any of the Contemplated Transactions, subject to a Permitted Exception;
(C) conflict with or violate any Legal Requirement or Order to which
SOF may be subject; or
(D) conflict with, result in any breach of, constitute a default (or an
event that, with notice or lapse of time or both, would become a default)
under, or result in the acceleration, modification or termination of any
Contract to which SOF is a party or by which SOF may be bound.
(iii) SOF is not and will not be required to obtain any Consent, other than
such as have been obtained, from any Person in connection with the execution and
delivery of this Shareholders’ Agreement or, subject to a Permitted Exception, the
consummation or performance of any of the Contemplated Transactions.
ARTICLE III
BOARD OF DIRECTORS/ CORPORATE GOVERNANCE MATTERS
3.1 Board Observer. From and after the date hereof and subject to the terms and
conditions hereof, and until the termination of this Shareholders’ Agreement in accordance with
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Section 8.3 below, SOF shall be entitled to designate one (1) individual as a Board Observer
(the “Board Observer”), with such individual to be subject to the prior written consent of
the Company, which such consent shall not be unreasonably withheld or delayed. This Board Observer
shall be entitled to receive (i) notice of and attend all meetings of the Board of Directors, (ii)
copies of minutes or consents relating to each action taken by the Board of Directors and (iii)
copies of all documents and other materials distributed to members of the Board of Directors, in
each case, at the same time and in the same form as received by members of the Board of Directors
(items (i), (ii) and (iii), collectively, the “Board Materials”); provided,
however, that any materials provided to the Board Observer pursuant to either clause (ii)
or clause (iii) of this sentence may be shared by the Board Observer with SOF and its Affiliates
and that such information shall otherwise be kept confidential by the Board Observer, SOF and its
Affiliates and shall not be disclosed to any other Person, except as may be required by applicable
law or regulation or legal process. Any individual designated pursuant to this Section 3.1 as
Board Observer may be removed with or without cause at any time and for any reason or no reason by
SOF in its sole discretion, by delivery of written notice to the Company only by SOF and SOF shall
be entitled to maintain a Board Observer and to designate a replacement Board Observer from time to
time, with such replacement Board Observer to be subject to the prior written consent of the
Company, which consent shall not be unreasonably withheld or delayed, so long as SOF then Owns at
least ten percent (10%) of the outstanding Shares of Common Stock. Notwithstanding anything herein
to the contrary, SOF may elect at any time and from time to time not to designate a Board Observer,
in which event SOF shall not be provided with or receive any Board Materials. Any designation by
SOF of a Board Observer or any removal of any Board Observer by SOF shall be made by written notice
to the Company. Notwithstanding anything to the contrary set forth in Section 9.7 of this
Shareholders’ Agreement, SOF may not assign its rights under this Section 3.1 without the prior
written consent of the Company.
3.2 Related Party Matters. The Company and PEWC hereby covenant and agree that the
business relationship and all of the commercial transactions between the Company or any of its
Affiliates, on the one hand, and PEWC or any of its Affiliates on the other shall be conducted in
such a manner as is consistent with the Company’s and PEWC’s past customary practices, on such
terms and conditions that are equal to, the same as or better than then current market terms
available to the Company with respect to the subject matter of each such transaction and in
accordance with any applicable Legal Requirements (herein “Satisfactory Contract Terms”).
In addition, SOF acknowledges that both the Company and PEWC will continue to engage in such
transactions on Satisfactory Contract Terms.
3.3 Amendment of Bye-laws. The Company hereby covenants and agrees to take all
requisite action necessary to call a Board of Directors meeting and a general meeting of the
shareholders of the Company as soon a practicably possible to (i) approve a new public accounting
firm to perform audit services for the Company and (ii) amend the Bye-laws of the Company to delete
Section 91A of such Bye-laws (the “Proposals”). The Company shall procure that the Board
of Directors shall recommend that the shareholders of the Company vote in favor of the Proposals.
APWC, PEWC and SOF each hereby covenants and agrees that each will take any and all action
reasonably necessary to effectuate the Proposals.
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ARTICLE IV
TAX COVENANTS
4.1 Compliance with U.S. Tax Requirements. So that SOF can timely determine and
comply with its U.S. tax reporting and payment obligations with respect to its Ownership in the
Company, the Company and PEWC each hereby agree and covenant as follows:
(a) Compliance with Subpart F Rules. The Company shall, with respect to each taxable
year of SOF during any part of which SOF held Shares of the Company, retain the services of any one
of the top four public accounting firms (in terms of gross revenue) headquartered in the United
States, or such other SEC-qualified public accounting firm subject to the consent of SOF, such
consent not to be unreasonably withheld, delayed or conditioned (it being agreed by SOF that Xxxxxx
Xxxxxxx International and any SEC qualified public accounting firm successor of Xxxxxx Xxxxxxx
International is acceptable to SOF) (the “Accounting Firm”), to: (i) determine for each taxable
year of SOF whether, for any part of that year, the Company was a “Controlled Foreign
Corporation” (“CFC”) as defined in Code Section 957 of the U.S. Internal Revenue Code
(all references to “Section” are to this Code, which is referred to hereinafter as the
“Code”) and if so, whether SOF was a “United States shareholder” as defined in Code Section
951(b) with respect to the Company for any part of that year, and (ii) if the Company is a CFC and
SOF is a United States shareholder of the Company for any part of such taxable year, determine what
amounts, if any, are includible in the gross income of SOF under Code Section 951(a) with respect
to the Company, (iii) if required by the Instructions to U.S. Internal Revenue Service
(“IRS”) Form 5471 “Information Return of U.S. Persons With Respect to Certain Foreign
Corporations” or otherwise by law, prepare and timely provide such Form 5471 to SOF for filing by
SOF with the IRS with respect to the Company for such taxable year (for this purpose, “timely”
shall mean by the due date for the Form 5471 for such year without taking into account any
extension, unless SOF in its sole discretion requests and is granted an extension, except that for
the first taxable year of SOF ending after the effective date of this Shareholders’ Agreement,
“timely” shall mean by August 31 following the end of such taxable year), and (iv) advise SOF as to
the U.S. tax treatment of any distribution from the Company or of any sale of stock of the Company,
including the applicability of the U.S. foreign tax credit, whether or not the Company was a CFC in
the year in which the distribution was made or the Shares were sold. The Company further agrees to
provide to the Accounting Firm and SOF all information and reasonable access to its books and
records necessary or helpful to the Accounting Firm, as requested by such Accounting Firm or SOF,
to carry out the Accounting Firm’s duties under this Section and otherwise for SOF to determine and
comply with its reporting and tax payment obligations under Code Section 951. If requested by the
Accounting Firm or SOF, the Company shall request of each of its shareholders that own at least ten
percent (10%) of the total outstanding voting stock of all classes of the Company that such
shareholder complete, execute, and deliver to the Company either IRS Form W-9 “Request for Taxpayer
Identification Number and Certification” or IRS Form W-8BEN “Certificate of Foreign Status of
Beneficial Owner for United States Tax Withholding,” whichever is appropriate for such shareholder,
with respect to whether such shareholder is or is not a “U.S. Person” as defined in the
instructions to such forms. The Company shall have no obligation to disclose such forms or any
information thereon to the Accounting Firm or to SOF except such information as is necessary to
determine the Company’s status as a CFC or SOF’s status as a United States
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shareholder. The Company shall comply with this Section 4.1(a) at its own expense, provided
that the services referred to in clauses (ii), (iii) and (iv) of the first sentence of this Section
4.1(a) shall be provided (as necessary) to SOF at the Company’s sole expense for the first taxable
year of SOF ending after the effective date of this Shareholders’ Agreement and thereafter at the
expense of SOF, with SOF responsible for paying directly to the Accounting Firm such fees and
expenses of the Accounting Firm related to the services referred to in clauses (ii), (iii) and (iv)
of the first sentence of this Section 4.1(a).
(b) Certification with Respect to Subpart F. Within sixty (60) days following the
close of each taxable year of SOF, the Company shall certify in writing to SOF, based on the advice
provided by the Accounting Firm selected under Section 4.1(a) above, (i) whether or not the Company
was a CFC for any part of that taxable year, (ii) if the Company was a CFC for all or any part of
such year, whether or not SOF was a United States shareholder of the Company for any part of that
taxable year in which the Company was also a CFC, and (iii) whether or not Form 5471 is required to
be filed by SOF with respect to the Company for such taxable year. SOF agrees to provide to the
Accounting Firm and the Company all information necessary or advisable, as reasonably determined
and requested by the Accounting Firm or the Company, in order for the Accounting Firm to carry out
its duties under this Section 4.1(b); provided that, if reasonably requested by SOF, the Accounting
Firm and the Company agree to execute a reasonable confidentiality agreement with respect to such
information. If for any taxable year the filing of Form 5471 is necessary, upon the presentation
of a completed Form 5471 to SOF by the Accounting Firm for any taxable year for filing with the IRS
as provided in Section 4.1(a) above, the Company shall further certify that the Form 5471 is
correct and complete. With respect to each such certification, the Company shall indemnify SOF,
each of the partners of SOF, and each other Person to whom any income under Code Section 951(a) may
be attributed directly or indirectly from SOF under Code Section 704 or otherwise under the Code
(collectively, the “CFC Indemnified Parties”), for any interest and penalties that may be imposed
on the CFC Indemnified Parties under the Code with respect to taxes owed on income determined to be
reportable under Code Section 951(a) but that was not reported on Form 5471, as well as for
reasonable attorney’s fees incurred by the CFC Indemnified Parties in defending against any
challenge by the IRS to a decision to not file Form 5471 based upon the Company’s certification or,
if one was filed, the correctness of the Form 5471 (collectively, the “CFC Losses”). In
the course of any such defense, the CFC Indemnified Parties shall have sole discretion with respect
to the grounds for such defense, the extent to which such defense shall be pursued through
administrative and judicial appeals, and the negotiation of any settlement with the IRS, except
that if the Accounting Firm represents in writing to the Company and the CFC Indemnified Parties
that there is at least substantial authority for any position taken on the Form 5471 (or with
respect to not filing a Form 5471) that is being challenged by the IRS, the CFC Indemnified Parties
shall defend that position at least through the level of IRS administrative appeals before agreeing
to any settlement or payment, unless the Company otherwise agrees to a cessation or settlement of
the dispute. In addition, the Company shall use its reasonable best efforts to include the CFC
Indemnified Parties as a third party beneficiary in the engagement of the Accounting Firm for the
services described in Section 4.1(a) (without modifying the legally recognized interpretation of
“reasonable best efforts”, for purposes of this Shareholders’ Agreement, “reasonable best efforts”
shall be deemed to exclude any requirement to divest or spin off any assets or other business
operations of the Company). Notwithstanding the foregoing, in the case of CFC Losses due to an
error directly attributable to the Accounting Firm,
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the Company shall only be required to provide such indemnification to the CFC Indemnified
Parties to the extent the Accounting Firm has not reimbursed the CFC Indemnified Parties for any
CFC Losses within one year after the date of such CFC Indemnified Party making such claim against
the Accounting Firm (the “CFC Accounting Claim Period”). In connection with any such
Accounting Firm error, during such CFC Accounting Claim Period, SOF hereby undertakes to pursue
diligently and enforce all rights and remedies against the Accounting Firm then available to it as
a third party beneficiary or otherwise, prior to making any demand for indemnification on the
Company. In the case of any CFC Losses directly or indirectly attributable to information supplied
by SOF, or SOF’s failure to supply information, in each case pursuant to the second sentence of
this Section 4.1(b), the Company shall not be required to provide indemnification to the CFC
Indemnified Parties.
(c) Distributions Sufficient to Cover Taxes Imposed Under Subpart F. With respect to
each taxable year of SOF for which it is determined under Section 4.1(a) above that an amount is
includible in the gross income of SOF under Code Section 951(a), the Company shall, at the request
of SOF and to the extent permitted by law, make a distribution to its shareholders, including SOF,
on their respective Shares in an amount (in the case of SOF) equal to the amount of such inclusion
multiplied by the highest marginal income tax rate for individuals in the United States in effect
for the year with respect to which such inclusion occurs. Such distribution shall be made by no
later than sixty (60) days following the filing by SOF with the IRS of the Form 5471 reporting the
includible amount. If any additional amount of tax is later determined to be owed as a result of a
challenge by the IRS as contemplated by Section 4.1(b) above or as a result of an amendment to the
Form 5471 for any reason at the request or recommendation of the Accounting Firm, the Company shall
make an additional shareholder distribution hereunder by no later than sixty (60) days following
the remittance by SOF to the U.S. Treasury of such additional tax amount.
(d) Obligation of PEWC to Purchase Shares in Advance of CFC Status. By no later than
sixty (60) days prior to any proposed sale or other Transfer by PEWC of any of the Shares Owned by
PEWC, if immediately prior to such proposed sale or other Transfer the Company is not a CFC or, if
the Company is a CFC, SOF is not a “United States shareholder” of the Company as defined in Code
Section 951(b), PEWC shall provide written Notification of such proposed sale or other Transfer to
the Company, SOF, and the Accounting Firm. Such Notification shall include: (i) whether or not
the contemplated purchaser or other transferee is a “U.S. person” as defined in the Instructions to
IRS Forms W-9 and W-8BEN, (ii) the number of Shares of each class of stock of the Company that is
proposed to be sold or otherwise Transferred, (iii) in the case of a sale of Shares, the
anticipated purchase price of the Shares, and (iv) the anticipated date of Transfer of the Shares.
The Company shall, immediately upon receipt of such Notification, request of the Accounting Firm
that it make a determination within fifteen (15) days of whether such sale or other Transfer will
cause the Company to be a CFC and, if the Company is or will become a CFC as a result of the sale,
cause SOF to become a United States shareholder with respect to the Company, and, if the
determination is that, as a result of the sale or other Transfer, the Company will become a CFC and
that SOF will be a United States shareholder with respect to the Company, PEWC shall have the
obligation, exercisable solely at the discretion of SOF by written demand to PEWC delivered within
fifteen (15) days of receipt of notice of the Accounting Firm’s determination, to purchase from SOF
all or any portion of the Shares held by SOF as SOF, in its sole discretion, shall decide, at a
price per share that is the
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greater of: (i) the purchase price of such Shares as set forth in a binding agreement between
PEWC and the proposed purchaser, or (ii) the trailing thirty (30) Trading Days’ average closing
price of the Common Stock. PEWC shall include in any agreement for the sale of Shares by PEWC, or
otherwise shall refuse to proceed with the Transfer of Shares unless the transferee agrees in
writing directed to the Company and SOF to, a covenant by the purchaser or other transferee to
assume PEWC’s obligations under this Article IV, including but not limited to this Section 4.1(d),
with respect to the Shares being purchased by such purchaser or otherwise acquired by such
transferee. Any purported sale or other Transfer of Shares by PEWC, or by any subsequent holder of
Shares acquired from PEWC or from any such subsequent holder, that is not in compliance with the
provisions of this Section 4.1(d) shall be null and void, and shall not be registered in the share
register of the Company.
(e) Compliance with the PFIC Rules. The Company shall, with respect to each taxable
year of SOF during any part of which SOF held Shares of the Company, retain the services of the
Accounting Firm to determine whether the Company is a “passive foreign investment company”
(“PFIC”) as defined in Code Section 1297, and if so: (i) to assist SOF to determine whether
to make a “qualified electing fund” election under Code Section 1295 (“QEF Election”) and
any other election that may be available under the PFIC Rules of the Code (Sections 1291 through
1298), and if so, to make any such election (which shall be at the sole discretion of SOF), (ii) to
determine what additional amounts of taxes that may be due or additional amounts of income that may
be includible in the gross income of SOF for such taxable year and the character of such income
under the PFIC Rules, whether as the result of an “excess distribution” under Code Section 1291 or
pursuant to the rules applicable under a QEF Election or any other election made under the PFIC
Rules, and (iii) to prepare and provide to SOF Form 8621 “Return of a Shareholder of a Passive
Foreign Investment Company or Qualified Electing Fund” for timely filing by SOF with the IRS with
respect to the Company for such taxable year. The Company further agrees to provide to the
Accounting Firm and SOF all information and reasonable access to its books and records necessary or
helpful to the Accounting Firm, as requested by the Accounting Firm or SOF, to carry out the
Accounting Firm’s duties under this Section 4.1(e) and otherwise for SOF to determine and comply
with its reporting and tax payment obligations under the PFIC Rules, and further, if a QEF Election
is in effect for SOF for any taxable year, to prepare, with the assistance of the Accounting Firm,
and provide to SOF for submission to the IRS as provided in IRS regulations a “PFIC Annual
Information Statement” as described in IRS Regulation Section 1.1295-1(g)(1) or any successor
regulation thereto. The Company shall comply with this Section 4.1(e) at its own expense, provided
that the services referred to in clauses (i), (ii) and (iii) of the first sentence of this Section
4.1(e) shall be provided (as necessary) to SOF at the Company’s sole expense for the first taxable
year of SOF in which the Company is a PFIC and thereafter at the expense of SOF, with SOF
responsible for paying directly to the Accounting Firm such fees and expenses of the Accounting
Firm related to the services referred to in clauses (i), (ii) and (iii) of the first sentence of
this Section 4.1(e).
(f) Certification with Respect to the PFIC Rules. Within sixty (60) days following
the close of each taxable year of SOF, the Company shall certify in writing to SOF, based on the
advice provided by the Accounting Firm selected under Section 4.1(a) above, either that the Company
was not a PFIC for any part of that taxable year, or that the Company was a PFIC for some portion
of that taxable year but that Form 8621 was nevertheless
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not required to be filed for that taxable year, or that the Company was a PFIC for that
taxable year and that a Form 8621 was required to be filed by SOF for that year with respect to the
Company. Upon the presentation of a completed Form 8621 to SOF by the Accounting Firm for any
taxable year for filing with the IRS as provided in Section 4.1(e) above, the Company shall further
certify that the Form 8621 is correct and complete. With respect to each certification, the
Company shall indemnify SOF, each of the partners of SOF, and each other Person to whom any item of
income or tax obligation under the PFIC rules may be attributed directly or indirectly from SOF
under the Code (collectively, the “PFIC Indemnified Parties”), for any interest and penalties that
may be imposed on the PFIC Indemnified Parties under the Code with respect to taxes (including any
interest treated as part of the “deferred tax amount”) owed or on income determined to be
reportable under the PFIC rules but that was not reported on Form 8621, as well as for reasonably
attorney’s fees incurred by the PFIC Indemnified Parties in defending against any challenge by the
IRS a decision to not file Form 8621 based upon the Company’s certification or, if one was filed,
the correctness of the Form 8621 (collectively, the “PFIC Losses”). In the course of any such
defense, the PFIC Indemnified Parties shall have sole discretion with respect to the grounds for
such defense, the extent to which such defense shall be pursued through administrative and judicial
appeals, and the negotiation of any settlement with the IRS, except that if the Accounting Firm
represents in writing to the Company and the PFIC Indemnified Parties that there is at least
substantial authority for any position taken on the Form 8621 (or with respect to not filing a Form
8621) that is being challenged by the IRS, the PFIC Indemnified Parties shall defend that position
at least through the level of IRS administrative appeals before agreeing to any settlement or
payment, unless the Company otherwise agrees to a cessation or settlement of the dispute. In
addition, the Company shall use its reasonable best efforts to include the PFIC Indemnified Parties
as a third party beneficiary in the engagement of the Accounting Firm for the services described in
this Section 4.1(f). Notwithstanding the foregoing, in the case of PFIC Losses due to an error
directly attributable to the Accounting Firm, the Company shall only be required to provide such
indemnification to the PFIC Indemnified Parties to the extent the Accounting Firm has not
reimbursed the PFIC Indemnified Parties for any PFIC Losses within one year after the date of such
PFIC Indemnified Party making such claim against the Accounting Firm (the “PFIC Accounting
Claim Period”). In connection with any such Accounting Firm error during such PFIC Accounting
Claim Period, SOF hereby undertakes to pursue diligently and enforce all rights and remedies
against the Accounting Firm then available to it as a third party beneficiary or otherwise, prior
to making any demand for indemnification on the Company.
(g) Distributions Sufficient to Cover Taxes Imposed Under the PFIC Rules. With
respect to each taxable year of SOF for which it is determined under Section 4.1(e) above that an
additional amount of tax is owed or otherwise that an amount is includible in the gross income of
SOF under the PFIC Rules, the Company shall, at the request of SOF and to the extent permitted by
law, make a distribution to its shareholders, including SOF, on their respective Shares in an
amount (in the case of SOF) equal to the amount of such additional tax or, with respect to an
inclusion in income, such inclusion multiplied by the highest marginal income tax rate for
individuals in the United States in effect for the year with respect to which such inclusion
occurs. Such distribution shall be made by no later than sixty (60) days following the filing by
SOF with the IRS of the Form 8621 reporting the additional taxes or includible amount. If any
additional amount of tax is later determined to be owed as a result of a challenge by the IRS as
contemplated by Section 4.1(f) above or as a result of an amendment to the Form 8621 for any
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reason at the request or recommendation of the Accounting Firm, the Company shall make an
additional shareholder distribution hereunder by no later than sixty (60) days following the
remittance by SOF to the U.S. Treasury of such additional tax amount.
(h) General Obligation of Cooperation. In addition to any specific obligation of the
Company and PEWC as set forth above in this Article IV, each of PEWC and the Company shall
cooperate fully with each other, with SOF, and with the Accounting Firm selected in Section 4.1(a)
above for each to carry out its obligations under this Article IV and to allow SOF to determine and
fully comply with its obligations under U.S. tax law with respect to its interest in the Company,
including any elections that may be available to SOF; provided, however, that the
foregoing agreement regarding cooperation shall not require PEWC or the Company to incur any
significant additional cost or expense, or to forego any benefit, not expressly provided for in
this Shareholders’ Agreement. PEWC shall further exercise whatever authority it holds as a
shareholder of the Company to cause the Company to fully comply with its obligations under this
Article IV.
ARTICLE V
TAG ALONG RIGHTS
5.1 Tag Along Right. From and after the date hereof and subject to the terms and
conditions hereof, and until the termination of this Shareholders’ Agreement in accordance with
Section 8.3 below, if PEWC proposes to Transfer to a Tag Along Transferee (or group of related Tag
Along Transferees), in one transaction or a series of related transactions, (i) Shares that
constitute more than five percent (5.0%) of the issued and outstanding Shares or (ii) Shares that,
when combined with the holdings of the Tag Along Transferee and its Affiliates and any other group
members, would result in such Group Owning in excess of five percent (5.0%) of the outstanding
Shares, then PEWC shall offer SOF the right to include in its Transfer to the Tag Along Transferee
the Tag Along Shares on the same terms and conditions as PEWC (a “Tag Along Right”).
5.2 Notice. No later than twenty (20) Business Days prior to the proposed
consummation date of any Transfer described in this Article V, PEWC shall provide the Tag Along
Notice to SOF and the Company. Such Tag Along Right shall be exercisable by written notice to PEWC
and the Company given within fifteen (15) Business Days after receipt of the Tag Along Notice.
Failure by SOF to respond within fifteen (15) Business Days after receipt of the Tag Along Notice
shall be regarded as a rejection of the offer made pursuant to the Tag Along Notice and a decline
by SOF of its rights under this Article V with respect to such Transfer. If SOF elects to exercise
such Tag Along Right, SOF shall be obligated and bound after sending such election notice to sell
the Tag Along Shares, free and clear of all liens, claims and encumbrances, for a purchase price
per Share described in the Tag Along Notice and upon the other terms and conditions of such
transaction as agreed to by PEWC (and otherwise take all reasonably necessary action to cause
consummation of the proposed transaction, including voting such Shares in favor of such transaction
and becoming a party to any agreement relating to the Transfer); provided that SOF shall not be
required to (i) make any representations or warranties in connection with such Transfer other than
representations and warranties as to (A) SOF’s Ownership of its Shares to be sold or Transferred
free and clear of all liens, claims and
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encumbrances, (B) SOF’s power and authority to effect such Transfer and (C) such matters
pertaining to compliance with securities laws as the Tag Along Transferee may reasonably require,
(ii) agree to any indemnification obligations in connection with such transaction other than
obligations (which shall be limited to the proceeds received in such Transfer) arising out of a
breach by SOF of such representations and warranties or (iii) agree to any post-closing covenants
other than customary further assurances covenants.
5.3 Right to Transfer. If a Tag Along Notice from SOF is not received by PEWC and the
Company in accordance with Section 5.2, PEWC shall have the right to consummate the Transfer to a
Tag Along Transferee without the participation of SOF, but only on terms and conditions which are
no more favorable to PEWC in any material respect than those stated in the Tag Along Notice and
only if the Transfer to the Tag Along Transferee occurs on a date within ninety (90) days of SOF’s
receipt of the Tag Along Notice. If such Transfer to the Tag Along Transferee does not occur
within such ninety (90) day period, PEWC’s right to Transfer the Tag Along Shares under the
foregoing sentence shall expire and PEWC’s obligations under Section 5.1 shall be reinstated and
such securities shall not be Transferred without first reoffering to SOF its Tag Along Rights in
accordance with Section 5.1.
ARTICLE VI
REGISTRATION RIGHTS
6.1 Shelf Registration.
(a) As promptly as possible after receiving all requisite information necessary for filing of
a Registration Statement, the Company shall use its reasonable best efforts to prepare and file
with the SEC a Registration Statement or Statements covering, among such other securities as may be
offered from time to time by the Company, the resale of the Registrable Securities for an offering
to be made on a continuous basis pursuant to Rule 415. Each such Registration Statement shall be
on Form F-1, or any successor form thereto (except if the Company is then eligible to register for
resale the Registrable Securities on Form F-3, or any successor form thereto, in which case such
registration may be on Form F-3, or any successor form thereto, in accordance with the requirements
thereof and the terms thereof). If, for any reason, the SEC refuses to permit all of the
Registrable Securities to be registered on a single Registration Statement or at the same time on
multiple Registration Statements, then as many of the Registrable Securities Owned by SOF as the
SEC will permit to be registered in such initial Registration Statement(s), and the balance of
Registrable Securities shall be registered on another Registration Statement or Statements filed
only after the effective date of the Registration Statement(s) registering the Registrable
Securities; provided, however, that no Shares other than the Registrable Securities
may be included in such Registration Statement that would adversely effect the rights of SOF
provided herein. Subject to the terms of this Shareholders’ Agreement, the Company shall use its
reasonable best efforts to cause each such Registration Statement to be declared effective under
the Securities Act as promptly as possible after the filing thereof, and shall use its reasonable
best efforts to keep each such Registration Statement continuously effective under the Securities
Act until the date on which (A) all Registrable Securities (i) have been sold, or (ii) may be sold
without volume restrictions pursuant to Rule 144(k), as determined by counsel to the Company
pursuant to a written opinion letter to
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such effect, addressed and reasonably acceptable to SOF and to the Company’s transfer agent
and (B) after receipt by SOF of unlegended certificates representing freely transferable Shares
from the transfer agent (the “Effectiveness Period”). After receipt of such opinion
letter, all Parties agree to use reasonable best efforts to cooperate in providing the transfer
agent with all documents reasonably necessary for delivery of such unlegended certificates. The
Company shall telephonically request effectiveness of each such Registration Statement as of 5:00
p.m. Eastern Time on a Trading Day. The Company shall promptly notify SOF (via electronic message
or facsimile) of the effectiveness of each such Registration Statement no later than the next
Trading Day following the date such Registration Statement is declared effective by the SEC. The
Company shall, on a timely basis, file a final Prospectus with the SEC as required by Rule 424.
Notwithstanding anything in this Shareholders’ Agreement to the contrary, in the event that SOF is
required by applicable law to be named as an underwriter in a Registration Statement, or in any
Prospectus contained therein, in order to have any Registrable Securities then held by SOF included
in such Registration Statement, SOF may elect by written notice to the Company not to have such
Registrable Securities so included, and upon receipt of such notice, the Company shall remove such
specified Registrable Securities from inclusion in the Registration Statement.
(b) If: (i) the Registration Statement is not declared effective under the Securities Act by
the SEC by November 30, 2008, or (ii) after the Effectiveness Date, a Registration Statement or
Statements, as the case may be, ceases or cease for any reason to remain continuously effective as
to all Registrable Securities for which it or they is or are required to be effective, or SOF is
otherwise not permitted to utilize the Prospectus therein to resell such Registrable Securities, in
either case, for more than fifteen (15) consecutive Trading Days or more than an aggregate of
forty-five (45) Trading Days during any twelve (12) month period (which need not be consecutive
calendar days) (any such failure or event being referred to as an “Event”), then APWC and
PEWC agree that SOF will suffer irreparable damages if the Company fails to meet its obligations in
this Section 6.1 and that it would not be feasible to ascertain the extent of such damages with
precision. Accordingly, the Put Right described in Section 6.6 hereof shall become immediately
exercisable upon the occurrence of any such Event and shall continue so long as such Event has not
been cured.
(c) From and after the date of this Shareholders’ Agreement until the end of the Effectiveness
Period, without the prior written consent of SOF, which consent shall not be unreasonably withheld
or delayed, the Company shall not enter into an agreement that grants a holder or prospective
holder of any securities of the Company demand or incidental registration rights that by their
terms are not subordinate to or pari passu with the registration rights granted to SOF in this
Shareholders’ Agreement.
6.2 Underwritten Demand Right.
(a) From and after the date hereof and subject to the terms and conditions hereof, and until
the termination of this Shareholders’ Agreement in accordance with Section 8.3 hereof, if SOF so
elects, an offering of the Registrable Securities shall be in the form of an Underwritten Offering.
In such event, SOF shall select one or more nationally recognized firms of investment bankers,
with the consent of the Company, which shall not be unreasonably
- 13 -
withheld or delayed, to act as the lead managing underwriter or underwriters in connection
with such offering and shall select any additional investment bankers and managers to be used in
connection with the offering. The Company shall not be obligated to effect more than two (2)
Underwritten Offerings in the aggregate on behalf of SOF and all SOF Transferees.
(b) In connection with any Underwritten Offering pursuant to Section 6.2(a), the Company
shall: (i) enter into an underwriting agreement in customary form with the underwriters
participating in the offering; and (ii) provide reasonable cooperation to the underwriters and SOF
in marketing the Registrable Securities, including but not limited to, (A) if necessary, amending
the Registration Statement to allow for the Underwritten Offering and (B) at least one (1) Company
officer (the chief financial officer or other appropriate officer) participating in any “road show”
or similar presentation in connection with such offering.
6.3 Piggyback Registration. If, at any time from and after the date hereof and
subject to the terms and conditions hereof, and until the termination of this Shareholders’
Agreement in accordance with Section 8.3 hereof, the Company shall determine to file with the SEC
a Registration Statement relating to an offering for its own account or the account of others under
the Securities Act of any of its equity securities (other than on Form F-4, or any successor form
thereto, or Form S-8 if then available to the Company, or any successor form thereto, or their then
equivalents relating to equity securities to be issued solely in connection with any acquisition of
any entity or business or equity securities issuable in connection with stock option or bona fide,
employee benefit plans), the Company shall send to SOF written notice of such determination (the
“Piggyback Notice”) and, if within ten (10) days after the delivery of the Piggyback
Notice, SOF shall so request in writing, the Company shall include in such Registration Statement
all or any part of the Registrable Securities that SOF requests to be registered, except that if,
in connection with any Underwritten Offering for the account of the Company the managing
underwriter(s) thereof shall impose a limitation on the number of Shares which may be included in
the Registration Statement because, in such underwriter(s)’ judgment, marketing or other factors
dictate such limitation is necessary to facilitate public distribution, then the Company shall be
obligated to include in such Registration Statement (i) all Shares, if any, that the Company
proposes to sell for its own account and (ii) the number of Shares, including the Registrable
Securities, that the managing underwriter(s) advise(s), allocated pro rata among the holders of
such Shares who are then entitled to exercise piggyback registration rights on the basis of the
number of Shares requested to be included therein by each holder of such Shares. If an offering in
connection with which SOF is entitled to registration under this Section 6.3 is an Underwritten
Offering, then SOF, unless otherwise agreed by the Company, shall offer and sell such Registrable
Securities in an Underwritten Offering using the same underwriter or underwriters and, subject to
the provisions of this Shareholders’ Agreement, on the same terms and conditions as other Shares
included in such Underwritten Offering.
6.4 Registration Procedures. In connection with the Company’s registration
obligations hereunder, the Company shall (and, for purposes of Section 6.4(a) and (l), SOF shall):
(a) Not less than four (4) Trading Days prior to the filing of each Registration Statement and
not less than one (1) Trading Day prior to the filing of any related Prospectus or any amendment or
supplement thereto (including any document that would be incorporated or
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deemed to be incorporated therein by reference), (i) furnish to SOF copies of the “Principal
and Selling Shareholders” section of such Registration Statement or other documents proposed to be
filed, if such sections have been revised since the previous filing of such Registration Statement
or any amendment or supplement thereto, which documents (other than those incorporated or deemed to
be incorporated by reference) will be subject to the review of SOF, and (ii) cause its officers and
directors, counsel and independent certified public accountants to respond to such inquiries as
shall be necessary, in the reasonable opinion of respective counsel to SOF, to conduct a reasonable
investigation within the meaning of the Securities Act. The Company shall not file a Registration
Statement or any such Prospectus or any amendments or supplements thereto to which SOF shall
reasonably object in good faith, provided that the Company is notified of such objection in writing
no later than two (2) Trading Days after SOF has been so furnished copies of such documents. SOF
agrees to furnish to the Company a completed selling shareholder questionnaire not less than ten
(10) Business Days after written request therefore has been made by the Company. The Company shall
not be required to include the Registrable Securities of SOF in a Registration Statement if SOF
fails to furnish to the Company a fully completed selling shareholder questionnaire at least three
(3) Trading Days prior to the date the Registration Statement is filed with the SEC (subject to the
other requirements in this Section 6.4(a)).
(b) (i) Prepare and file with the SEC such amendments, including post-effective amendments,
to a Registration Statement and the Prospectus used in connection therewith as may be necessary to
keep a Registration Statement continuously effective as to the applicable Registrable Securities
for the Effectiveness Period and prepare and file with the SEC such additional Registration
Statements in order to register for resale under the Securities Act all of the Registrable
Securities;
(ii) cause the related Prospectus to be amended or supplemented by any required
Prospectus supplement (subject to the terms of this Shareholders’ Agreement), and as
so supplemented or amended to be filed pursuant to Rule 424;
(iii) respond as promptly as reasonably possible to any comments received from
the SEC with respect to a Registration Statement or any amendment thereto and, upon
written request by SOF, as promptly as reasonably possible provide SOF with true and
complete copies of all material written correspondence from and to the SEC relating
to a Registration Statement; and
(iv) comply in all material respects with the provisions of the Securities Act
and the Exchange Act with respect to the disposition of all Registrable Securities
covered by a Registration Statement during the applicable period in accordance
(subject to the terms of this Shareholders’ Agreement) with the intended methods of
disposition by SOF thereof set forth in such Registration Statement as so amended or
in such Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Registrable Securities at any time
exceeds one-hundred percent (100%) of the number of Shares of Common Stock then included in a
Registration Statement, then the Company shall use its reasonable best efforts to file as soon as
reasonably practicable an additional Registration Statement or post effective
- 15 -
amendment to the existing Registration Statement covering the resale by SOF of not less than
one-hundred percent (100%) of the number of such Registrable Securities.
(d) Use its reasonable best efforts to notify SOF (which notice shall, pursuant to clauses
(iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus
until the requisite changes have been made) as promptly as reasonably possible and confirm such
notice in writing
(i) (A) when a Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement has been filed;
(B) when the SEC notifies the Company whether there will be a “review”
of such Registration Statement and whenever the SEC comments in writing on
such Registration Statement; and
(C) with respect to a Registration Statement or any post-effective
amendment, when the same has become effective;
(ii) of any request by the SEC or any other federal or state Governmental
Authority for amendments or supplements to a Registration Statement or Prospectus or
for additional information;
(iii) of the issuance by the SEC or any other Federal or state Governmental
Authority of any stop order suspending the effectiveness of a Registration Statement
covering any or all of the Registrable Securities or the initiation of any
Proceedings for that purpose;
(iv) of the receipt by the Company of any Notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction, or the initiation or
threatening of any Proceeding for such purpose;
(v) of the occurrence of any event or passage of time that makes the financial
statements included in a Registration Statement ineligible for inclusion therein or
any statement made in a Registration Statement or Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires any revisions to a Registration Statement,
Prospectus or other documents so that, in the case of a Registration Statement or
the Prospectus, as the case may be, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading; and
(vi) the occurrence or existence of any pending corporate development with
respect to the Company that the Company believes may be material and that, in the
determination of the Company, makes it not in the best interest of the Company to
allow continued availability of a Registration Statement or Prospectus; provided
that any and all of such information shall be kept
- 16 -
confidential by SOF until such information otherwise becomes public, unless
disclosure by SOF is required by law; provided, further, that
notwithstanding SOF’s agreement to keep such information confidential, SOF makes no
acknowledgement that any such information is material, non-public information.
(e) Use its reasonable best efforts to avoid the issuance of, or, if issued, obtain the
withdrawal of (i) any order suspending the effectiveness of a Registration Statement, or (ii) any
suspension of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest practicable moment.
(f) Furnish to SOF, without charge, to the extent requested in writing by SOF, at least one
(1) conformed copy of each such Registration Statement and each amendment thereto, including
financial statements and schedules, all documents incorporated or deemed to be incorporated therein
by reference, and all exhibits to such Registration Statement (including those previously furnished
or incorporated by reference) promptly after the filing of such documents with the SEC.
(g) Promptly deliver to SOF, without charge, as many copies of the Prospectus or Prospectuses
(including each form of prospectus) and each amendment or supplement thereto as SOF may reasonably
request in writing in connection with resales by SOF. Subject to the terms of this Shareholders’
Agreement, the Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by SOF in connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement thereto, except after the giving of any
notice pursuant to Section 6.4(d).
(h) Prior to any resale of Registrable Securities by SOF, use its reasonable best efforts to
register or qualify or cooperate with SOF in connection with the registration or qualification (or
exemption from the registration or qualification) of such Registrable Securities for the resale by
SOF under the securities or Blue Sky laws of such jurisdictions within the United States as SOF
reasonably requests in writing, to keep each registration or qualification (or exemption therefrom)
effective during the Effectiveness Period and to do any and all other acts or things reasonably
necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by
each Registration Statement; provided, that the Company shall not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified, subject the Company to any
material tax in any such jurisdiction where it is not then so subject or file a general consent to
service of process in any such jurisdiction.
(i) If requested by SOF, cooperate with SOF to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be delivered to a transferee pursuant to a
Registration Statement, which certificates shall be free of all restrictive legends, and to enable
such Registrable Securities to be in such denominations and registered in such names as SOF may
request.
(j) Upon the occurrence of any event contemplated by this Section 6.4, as promptly as
reasonably possible under the circumstances taking into account the Company’s good faith assessment
of any adverse consequences to the Company and its shareholders of the premature disclosure of such
event, prepare a supplement or amendment, including a post-
- 17 -
effective amendment, to a Registration Statement or a supplement to the related Prospectus or
any document incorporated or deemed to be incorporated therein by reference, and file any other
required document so that, as thereafter delivered, neither a Registration Statement nor such
Prospectus will contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. If the Company notifies SOF in
accordance with clauses (iii) through (vi) of Section 6.4(d) above to suspend the use of any
Prospectus until the requisite changes to such Prospectus have been made, then SOF shall suspend
use of such Prospectus. The Company will use its reasonable best efforts to ensure that the use of
the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to
exercise its right under this Section 6.4(j) to suspend the availability of a Registration
Statement and Prospectus, subject to triggering an Event pursuant to Section 6.1(b), for a period
not to exceed sixty (60) calendar days (which need not be consecutive days) in any twelve (12)
month period.
(k) Comply with all applicable rules and regulations of the SEC.
(l) If reasonably requested by the Company prior to any filing by the Company with the SEC in
connection with any applicable Registration Statement or Prospectus requirement of the SEC, SOF
agrees to furnish to the Company a certified statement as to the number of Shares beneficially
Owned by SOF and, if required by the SEC, the natural Persons thereof that have voting and
dispositive control over such Shares. During any periods that the Company is unable to meet its
obligations hereunder with respect to the registration of the Registrable Securities solely because
SOF fails to furnish such information within three (3) Trading Days of the Company’s request any
Event that may otherwise occur solely because of such delay shall be suspended, until such
information is delivered to the Company.
(m) In the case of an Underwritten Offering, use its reasonable best efforts to furnish or
caused to be furnished to SOF and the underwriters a signed counterpart, addressed to SOF and the
underwriters, of: (i) an opinion of counsel for the Company, dated the date of each closing under
the underwriting agreement, reasonably satisfactory to the underwriters; and (ii) a “comfort”
letter, dated the effective date of such Registration Statement and the date of each closing under
the underwriting agreement, signed by the independent public accountants who have certified the
Company’s financial statements included in such Registration Statement, covering substantially the
same matters with respect to such Registration Statement (and the Prospectus included therein) and
with respect to events subsequent to the date of such financial statements, as are customarily
covered in accountants’ letters delivered to underwriters in underwritten public offerings of
securities, and such other financial matters as the underwriters may reasonably request and
customarily obtained by underwriters in Underwritten Offerings, provided that, to be an addressee
of the comfort letter, SOF may be required to confirm that it is in the category of Persons to whom
a comfort letter may be delivered in accordance with applicable accounting literature.
(n) In the case of an Underwritten Offering, use its reasonable best efforts to make available
for inspection by the representatives of SOF and the representative of any underwriters
participating in any disposition pursuant to a Registration Statement, and any special counsel or
accountants retained by SOF or underwriters, during normal business hours
- 18 -
and subject to receipt of an executed confidentiality agreement in a form reasonably
satisfactory to the Company, such financial and other records, corporate documents and properties
of the Company as are necessary in order to conduct a “due diligence investigation.”
(o) In the case of an Underwritten Offering, make generally available to its shareholders, as
soon as reasonably practicable, earnings statements covering a period of at least twelve (12)
months beginning after the effective date of the registration statement that satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder in the case of an Underwritten
Offering.
6.5 Listing of Common Stock. The Company shall use its reasonable best efforts to
have its Common Stock listed on either the Nasdaq Stock Market, Inc. (Global Market or Global
Select Market), the American Stock Exchange LLC, the New York Stock Exchange LLC (a “US
Securities Market” and together with a Foreign Securities Market, a “Securities
Market”) or a Foreign Securities Market, either in connection with a dual listing of the Common
Stock or otherwise as contemplated by Section 6.8(a) of this Shareholders’ Agreement as promptly as
possible after the date hereof, with it being understood that, prior to the listing of the Common
Stock on any Securities Market, the Company must finalize the audit of its financial statements for
each of the fiscal years ended December 31, 2004, 2005 and 2006 and otherwise qualify with the
respective Securities Markets applicable listing requirements. APWC and PEWC agree that SOF will
suffer irreparable damages if the Company fails to have the Shares listed on a Securities Market by
January 31, 2009 and that it would not be feasible to ascertain the extent of such damages with
precision. Accordingly, the Put Right described in Section 6.6 hereof shall become exercisable
upon the occurrence of a Put Event and shall continue so long as such Put Event has not been cured.
6.6 Put Right and Option; Put Purchase Price; Exclusive Remedy.
(a) PEWC hereby irrevocably grants and issues to SOF, the right and option (but not the
obligation) to sell to PEWC upon the occurrence of a Put Event, and PEWC agrees to purchase from
SOF upon the occurrence of such Put Event, all Registrable Securities then owned by SOF (the
“Put Shares”), for an amount equal to the Put Price together with interest (calculated on
the basis of a 360 day year) on the Put Price, computed from the date hereof until the Put Closing
(defined below) at a rate per annum that shall be equal to the Libor Rate plus fifty (50) basis
points (compounded annually) (the “Put Right”). SOF may exercise its respective Put Right
at any time while the Put Event remains uncured via written Notification to PEWC. The closing
related to such Put Right shall occur within sixty (60) days of SOF’s exercise of such Put Right
(the “Put Closing”). If the Put Event terminates prior to the Put Closing, the exercise of
the Put Right shall be deemed rescinded and the transaction relating to the Put Right shall be
deemed cancelled. Such event shall not terminate the existence of a Put Right upon the triggering
of a future Put Event.
(b) For the avoidance of doubt, the Parties agree that, in the event that the Company has
complied with each of its obligations under Article VI of this Shareholders’ Agreement, whether
such obligation is absolute or on a reasonable best efforts basis, the Put Right granted to SOF
shall constitute the exclusive right and remedy of SOF for a failure of the
- 19 -
Company to achieve an effective Registration Statement by November 30, 2008 or a listing on a
US Securities Market by January 31, 2009.
6.7 Registration Fees.
All fees and expenses incident to the performance of or compliance with this Shareholders’
Agreement by the Company shall be borne by the Company whether or not any Registrable Securities
are sold pursuant to a Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation,
(i) registration, listing and filing fees, and all other fees and expenses
payable in connection with the listing of securities on any securities exchange or
automated interdealer quotation system,
(ii) fees and expenses of compliance with any securities or “blue sky” laws
(including reasonable fees and disbursements of counsel in connection with “blue
sky” qualifications of the securities registered),
(iii) expenses in connection with the preparation, printing, mailing and
delivery of any registration statements, prospectuses and other documents in
connection therewith and any amendments or supplements thereto,
(iv) security engraving and printing expenses,
(v) internal expenses of the Company (including all salaries and expenses of
its officers and employees performing legal or accounting duties),
(vi) reasonable fees and expenses of counsel for the Company and customary fees
and expenses for independent certified public accountants retained by the Company
(including the expenses relating to any comfort letters or costs associated with the
delivery by independent certified public accountants of any comfort letters
requested pursuant to Section 6.4(m)),
(vii) reasonable fees and expenses of any special experts retained by the
Company in connection with such registration,
(viii) fees and expenses in connection with any review by the National
Association of Securities Dealers, Inc. of the underwriting arrangements or other
terms of the offering, and all fees and expenses of any “qualified independent
underwriter,” including the fees and expenses of any counsel thereto,
(ix) fees and disbursements of underwriters customarily paid by issuers or
sellers of securities, but excluding any underwriting fees,
discounts and commissions attributable to the sale of Registrable Securities,
(x) costs of printing and producing any agreements among underwriters,
underwriting agreements, any “blue sky” or legal investment
- 20 -
memoranda and any selling agreements and other documents in connection with the
offering, sale or delivery of the Registrable Securities,
(xi) transfer agents’ and registrars’ fees and expenses and the fees and
expenses of any other agent or trustee appointed in connection with such offering,
and
(xii) fees and expenses payable in connection with any ratings of the
Registrable Securities, including expenses relating to any presentations to rating
agencies.
6.8 Relisting of Company. In the event that the Company determines to transfer its
public listing to a Foreign Securities Market, the registration rights granted to SOF herein shall
apply to SOF in such market with equal force and effect, subject to such modifications as are
reasonably necessary to comply with then applicable rules and regulations of such market;
provided, however, that the foregoing shall not relieve the Company from any of its
obligations, as such obligations would be performed in a substantially similar manner in that
market, or materially impair any of SOF’s rights under this Article VI, including, without
limitation, its Put Right under Section 6.6 of this Shareholders’ Agreement.
ARTICLE VII
PREEMPTIVE RIGHT
7.1 Preemptive Right. From and after the date hereof and subject to the terms and
conditions hereof, and until the termination of this Shareholders’ Agreement in accordance with
Section 8.3 hereof, if the Board of Directors decides to sell any equity securities or other
securities convertible into or exchangeable for equity securities, then SOF shall have the right
and option to buy from the Company a Pro Rata Amount (as defined below) of the same securities
(the “Preemptive Shares”) and on the same terms and subject to the same conditions as such
securities are being sold to the purchasing parties; provided, however, such right
shall not apply to Permitted Issuances (the “Preemptive Right”). To the extent that SOF
does not elect to purchase the Pro Rata Amount from APWC as described herein, SOF shall not have
the right to participate in such transaction. The “Pro Rata Amount” shall be equal the
product of (a) the number of equity securities to be sold by the Company and (b) a fraction, the
numerator of which shall be the number of Shares of Common Stock then currently Owned in the
aggregate by SOF, and the denominator of which shall be the total number of issued and outstanding
Shares of Common Stock as of the date of the Preemptive Notice (the “Pro Rata Percentage”).
7.2 Notice. No later than twenty (20) Business Days prior to the consummation of any
proposed Transfer described in this Section 7.1, the Company shall provide the Preemptive Notice to
SOF. The Preemptive Right shall be exercisable by written notice to the Company given within
fifteen (15) Business Days after receipt of the Preemptive Notice (the “Election Notice”).
Failure by SOF to respond within fifteen (15) Business Days after receipt of the Preemptive Notice
shall be regarded as a rejection of the offer made pursuant to the Preemptive Notice and a decline
by SOF of its rights under this Article VII with respect to such Transfer. If SOF elects to
exercise such Preemptive Right, SOF shall be obligated and bound after sending
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the Election Notice to buy the Preemptive Shares, free and clear of all liens, claims and
encumbrances, for a purchase price per Share described in the Preemptive Notice and upon the other
terms and conditions of such transaction as reasonably agreed between SOF and the Company; provided
that SOF shall not be required to (i) make any representations or warranties in connection with
such Transfer other than representations and warranties as to (A) SOF’s power and authority to
effect such Transfer and (B) such matters pertaining to compliance with securities laws as the
Company may reasonably require, (ii) agree to any indemnification obligations in connection with
such transaction other than as a result of a breach by SOF of such representations and warranties
or (iii) agree to any post-closing covenants other than customary further assurances covenants.
7.3 Right to Sell. If an Election Notice is not received by the Company in accordance
with Section 7.2, the Company shall have the right to consummate the Transfer without the
participation of SOF, but only on terms and conditions which are no less favorable to the Company
in any material respect to those stated in the Preemptive Notice and only if the Transfer occurs on
a date within ninety (90) days of SOF’s receipt of the Preemptive Notice. If such Transfer does
not occur within such ninety (90) day period, the Company’s right to issue the Preemptive Shares
under the foregoing sentence shall expire and the Company’s obligations under Section 7.1 shall be
reinstated, and such securities shall not be Transferred without first being reoffered to SOF in
compliance with Section 7.1.
ARTICLE VIII
STOCK CERTIFICATES; OTHER MATTERS
8.1 Stock Certificates; Share Registry. (a) As promptly as practicable after the
simultaneous closings of the Stock Purchase Agreement and this Shareholders’ Agreement, the Company
shall cause the delivery to SOF and PEWC, respectively, of (i) certificate(s) and/or book entry
Shares representing the 2,766,154 Shares Owned by SOF and the 7,664,615 Shares Owned by PEWC as
reasonably requested by SOF and PEWC, respectively and (ii) a certified copy of the Company’s share
register maintained by Xxxx Management Limited reflecting the foregoing Share ownership by SOF and
PEWC, respectively. The Parties agree to use reasonable best efforts to cooperate in providing the
transfer agent with all documents reasonably necessary for delivery of such certificates. The
certificate(s) issued to SOF shall contain the first legend listed below and the certificate(s)
issued to PEWC shall contain both of the legends listed below:
“THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF (“TRANSFERRED”) UNLESS AND UNTIL
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNLESS SUCH TRANSFER IS EXEMPT FROM
REGISTRATION OR IS OTHERWISE IN COMPLIANCE WITH THE SECURITIES ACT.
THE TRANSFER OF THE SHARES EVIDENCED BY THIS CERTIFICATE IS SUBJECT TO THE
RESTRICTIONS ON TRANSFER PROVIDED FOR IN
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THE SHAREHOLDERS’ AGREEMENT, DATED JUNE 28, 2007, BETWEEN ASIA PACIFIC WIRE AND
CABLE CORPORATION, LIMITED (“APWC”) AND CERTAIN SHAREHOLDERS, AS AMENDED FROM TIME
TO TIME, A COPY OF WHICH IS ON FILE AT THE REGISTERED OFFICE OF APWC AND WILL BE
FURNISHED WITHOUT CHARGE TO THE HOLDER OF SUCH SHARES UPON WRITTEN REQUEST TO APWC.
NO SUCH TRANSFER WILL BE EFFECTIVE UNLESS AND UNTIL THE TERMS AND CONDITIONS OF SUCH
SHAREHOLDERS’ AGREEMENT HAVE BEEN COMPLIED WITH IN FULL AND NO PERSON MAY REQUEST
APWC TO REGISTER THE TRANSFER OF ANY SHARES IF SUCH TRANSFER IS IN VIOLATION OF SUCH
SHAREHOLDERS’ AGREEMENT.”
In addition, contemporaneous with the execution of this Shareholders’ Agreement, PEWC shall
return all certificates representing Shares beneficially Owned by it that are represented by
certificates to the Company and the Company shall issue substitute certificates that comply with
this Section 8.1. The legend(s) on each certificate may be modified from time to time by the Board
of Directors to comply with applicable law and/or this Shareholders’ Agreement. Any share
certificates issued to transferees of SOF and PEWC shall contain the above legends to the extent
appropriate in accordance with the other terms of this Shareholders Agreement.
(b) The Parties acknowledge that, in addition to its share register maintained with the
Company’s resident company secretary in Bermuda, the Company maintains one or more additional share
registers in order to comply with trading requirements and practices in the United States. The
parties hereby agree that the share register maintained by the Company’s resident company secretary
in Bermuda shall be the official share register of the Company, and shall be dispositive as to
record ownership of Shares in the event of any conflict or discrepancy between the books and
records maintained by the resident company secretary and any other share registers maintained by or
on behalf of the Company.
8.2 Closings. The closing (the “Closing”) of each purchase, sale, issuance
and/or other Transfer of any and all Share(s) transferred pursuant to (i) Articles V and VII of
this Shareholders’ Agreement shall take place in either the city of New York, New York or Taipei,
Taiwan, ROC, as agreed between the Parties and (ii) Section 4(d) and Section 6.6 in New York, New
York, in either case at a location and time, and on a date designated by the Company in accordance
with this Shareholders’ Agreement or at such other place, time or date as is mutually agreed upon
in writing by all concerned Parties. At the Closing, each Party transferring cash shall transfer
such cash in U.S. Dollars by wire transfer of immediately available funds and transferring any
Share(s) shall Transfer and deliver, or cause to be transferred and delivered, to the purchaser(s)
or other transferee(s) of such Share(s) any and all certificates representing such Share(s), duly
endorsed or accompanied by duly executed stock powers with any required transfer stamps affixed and
any required transfer taxes paid, free and clear of any liens, claims, and encumbrances (except for
any such lien, claim, or encumbrance existing as a result of this Shareholders’ Agreement), against
payment and delivery of the consideration, if any, for such Share(s); provided that the delivery of
certificates to the purchaser(s) or other transferee(s) of such Shares may be delayed pending
receipt of such certificate(s) from the Company’s resident company secretary in Bermuda.
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8.3 Termination. The provisions of this Shareholders’ Agreement shall terminate as
follows: (i) Section 3.1 upon SOF ceasing to Own ten percent (10%) of the total outstanding
Shares; (ii) Sections 3.2, 6.2, 6.3 and 6.5, and Articles V and VII upon SOF and all SOF
Transferees ceasing to Own five percent (5%) of the total outstanding Shares, (iii) Article IV,
with regard to (x) Section 4.1 (a)-(d) and (y) Section 4.1 (e)-(g), respectively, until the date
which is six years after the date of the filing by SOF with the IRS of the last annual income tax
return for a fiscal year in which it reports holding ten percent (10%) or more of the total
outstanding Shares and five percent (5%) or more of the total outstanding Shares, respectively and
(iv) with regard to all other provisions of this Shareholders’ Agreement, the date which is thirty
(30) days after the last date to occur under Sections 8.3(i), (ii) and (iii) above; provided, that
any such termination shall not relieve a Party hereto of any liability for a breach occurring prior
to such termination. This Shareholders’ Agreement may also be terminated by mutual agreement
between each of the Parties hereto.
8.4 Distributions of Shares of Company Subsidiaries. From and after the date hereof
and subject to the terms and conditions hereof, and until the termination of this Shareholders’
Agreement in accordance with Section 8.3 herein, in the event shares of common stock of a
Subsidiary of the Company are distributed by the Company to its shareholders including SOF, the
Parties hereto shall, and the Company shall cause such Subsidiary to, enter into a shareholders’
agreement on the same or substantially the same terms and provisions of this Shareholders’
Agreement, with modifications thereto reasonably agreed to by the Parties.
8.5 Transferability of Shares. The Shares Owned by SOF are fully transferable, to the
extent permitted by law, and no terms herein shall be deemed to restrict the ability of SOF to
Transfer its Shares. In no event shall PEWC Transfer any Shares Owned by PEWC to a United States
organized or domiciled Affiliate if such Transfer results in, or is reasonably likely to result in,
the Company being a Controlled Foreign Corporation; provided that in no event shall such Transfer
be in an amount of Shares greater than 9.9% of the total outstanding Shares.
8.6 Investor Status. Each of PEWC and SOF hereby declares that neither the execution
of this Shareholders’ Agreement nor anything herein shall be construed as an admission that such
Person is, for the purposes of Sections 13(d) or 13(g) of the Securities Act, (i) acting (or has
agreed or is agreeing to act together with any other Person) as a partnership, limited partnership,
syndicate, or other group for the purpose of acquiring, holding, or disposing of securities of the
Company or otherwise with respect to the Company or any securities of the Company or (ii) a member
of any group with respect to the Company or any securities of the Company.
ARTICLE IX
MISCELLANEOUS
9.1 Public Announcements. The Parties shall provide to each other any press release,
public announcement, or similar publicity with respect to this Shareholders’ Agreement and shall
consult with each other before issuing or making any such release and shall give due consideration
to any reasonable comments made by the other Party and shall incorporate any reasonable comments
made by the other Party to the extent the comments (i) relate to such other
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Party and (ii) would not result in a violation of any Legal Requirement. The Parties shall
not issue any such press release or make any such public statement expressly referring to this
Shareholders’ Agreement and addressing the subject matter hereof without the prior written consent
of each other Party, which consent shall not be unreasonably withheld, conditioned, or delayed;
provided that a Party may, without obtaining the prior consent of any other Party, issue such press
release or make such public statements as such Party determines in good faith are required by a
Legal Requirement. The Company shall cause its employees, officers and directors to comply with
this Section 9.1. To the extent any such release or announcement is not in English, an English
translation shall be provided.
9.2 Notices. All notices, consents, waivers and other communications under this
Shareholders’ Agreement shall be in writing, sent contemporaneously to all of the receiving
Parties, and shall be deemed to have been duly provided, delivered, and received when (a) delivered
by hand (with written confirmation of receipt), (b) sent by facsimile (with written confirmation of
receipt) if a copy of such facsimile is mailed by registered mail (return receipt requested) or in
accordance with clause (c) hereof, or (c) when received by the addressee, if sent by an
internationally recognized delivery or courier service (return receipt requested), in each case, to
the appropriate addresses and facsimile numbers as provided on the signature page for such Party
(or to such other addresses and facsimile numbers as any Party may designate by notice to the other
Parties in accordance with this Section 9.2).
9.3 Arbitration; Jurisdiction; Service of Process. Any dispute, controversy, or claim
arising out of or in relation to this Shareholders’ Agreement, including the validity, invalidity,
breach, or termination thereof, shall be exclusively resolved by arbitration in accordance with
rules of arbitration of the American Arbitration Association in force on the date when the request
for arbitration is submitted in accordance with such rules. The number of arbitrators shall be
three (3), appointed in accordance with said rules. The seat of the arbitration shall be New York,
New York, United States. The arbitration proceedings shall be conducted in English language.
The Parties hereby irrevocably and unconditionally consent to submit to the exclusive
jurisdiction of the courts of the State of New York and of the United States of America located in
New York County for any actions, suits or proceedings arising out of or relating to this
Shareholders’ Agreement (and agree not to commence any action, suit or proceeding relating thereto
except in such courts, and further agree that service of any process, summons, notice or document
by U.S. registered mail to their respective addresses set forth above shall be effective service of
process for any action, suit or proceeding brought against either party in any such court). The
parties hereby irrevocably and unconditionally waive any objection that either party may now or
hereafter have to the laying of venue of any action, suit or proceeding arising out of or relating
to this letter agreement in the courts of the State of New York or the United States of America
located in New York County, and hereby further irrevocably and unconditionally waive and agree not
to plead or claim in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum. THE PARTIES FURTHER IRREVOCABLY AND
UNCONDITIONALLY WAIVE THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS SHAREHOLDERS’ AGREEMENT. For the avoidance of doubt, the
Parties agree that any dispute, controversy or claim shall be resolved, in the first instance,
pursuant to the arbitration procedures set forth above.
- 25 -
The Company and PEWC irrevocably appoint CT Corporation (the “Process Agent”), at
000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (212-894-8940), respectively, as its agent and true and
lawful attorney-in-fact in its name, place and stead to, and SOF irrevocably authorizes the office
identified as its address for Notices in accordance with Section 9.2, to accept on behalf of each
of the respective Parties and their respective properties and revenues, service of copies of the
summons and complaint and any other process which may be served in any suit, action or proceeding
brought pursuant to this Shareholders’ Agreement, and each of the Parties hereto agrees that
failure of the Process Agent to give any notice of any such service of process to any of the
Parties hereto shall not impair or affect the validity of such service or the enforcement of any
judgment based thereon.
9.4 Further Assurances; Legal Prohibitions. Each Party hereto shall (a) furnish such
information, (b) execute and deliver such documents, and (c) do all other such acts and things, in
each case, if and as reasonably requested by any other party hereto for the purpose of carrying out
the intents and purposes of this Shareholders’ Agreement and the Contemplated Transactions, as
applicable to each Party. If the performance by the Company of any obligation(s) of the Company
under this Shareholders’ Agreement may be prohibited or otherwise limited by applicable law, the
Parties hereto shall use their reasonable best efforts (including by voting its Shares in person or
by proxy at any vote of the Company’s shareholders) to enable the Company to fully satisfy,
fulfill, and perform such obligation(s) or satisfy, fulfill, and perform such obligation(s) to the
extent not prohibited by applicable law. Further, the Parties agree to act in good faith in
carrying out the terms and provisions of this Shareholders’ Agreement and to not engage in any
transaction or activity intended to circumvent or otherwise impair the intended rights or
obligations of the Parties provided hereunder.
9.5 Waiver. Neither the failure to exercise, nor any delay by any Party in
exercising, any right, power, or privilege under this Shareholders’ Agreement, or any other
document contemplated by this Shareholders’ Agreement shall operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right, power, or privilege shall
preclude any other or further exercise of such right, power, or privilege or the exercise of any
other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim
or right arising out of this Shareholders’ Agreement or any other document contemplated by this
Shareholders’ Agreement may be discharged by one Party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing signed by each other Party hereto, (b) no
waiver that may be given by any Party hereto shall be applicable except in the specific instance
when and for which such waiver is given, and (c) no notice to or demand on one Party shall be
deemed to be a waiver of any obligation of such Party or of the right of the Party giving such
notice or demand to take further action without notice or demand as provided in this Shareholders’
Agreement, or any other document contemplated by this Shareholders’ Agreement.
9.6 Entire Agreement; Modification. This Shareholders’ Agreement (together with each
other document contemplated by this Shareholders’ Agreement) terminates, supersedes, and replaces
all prior written and oral agreements among the Parties with respect to the subject matter of this
Shareholders’ Agreement and each other document contemplated by this Shareholders’ Agreement and
constitutes (together with each other document contemplated by this Shareholders’ Agreement) a
complete and exclusive statement of the terms of the agreement by and among the Parties with
respect to the subject matter of this Shareholders’ Agreement and
- 26 -
each other document contemplated by this Shareholders’ Agreement. This Shareholders’
Agreement may not be amended except by a written agreement executed by all Parties to be charged
with or otherwise affected by any such amendment.
9.7 Assignments, Successors, and No Third-Party Rights. No Party may assign any of
the rights or obligations of such Party under this Shareholders’ Agreement without the prior
written consent of each of the other Parties, which consent shall not be unreasonably withheld,
conditioned, or delayed; provided, however, that SOF may assign its rights and
obligations under Articles IV, V, VI, VIII and IX hereunder (i) to an Affiliate of SOF and (ii) in
any Transfer of Shares to a single party (a party and its Affiliates considered a single party)
that in the aggregate represents five and one-tenth percent (5.1%) or more of the outstanding
Shares of Common Stock (such assignment right pursuant to clause (ii) above is herein, “SOF’s
Assignment Right”); provided, further, that (A) SOF’s Assignment Right shall
not apply to any attempted assignment to, and the rights and obligations contained herein are not
assignable to, any Person (or any of its Affiliates, it being agreed for the avoidance of doubt
that a financial investor holding twenty five percent (25%) or less of the equity securities in
such Person shall not be deemed an Affiliate) that at the time of such assignment (i) is a direct
competitor of the Company or any of its Subsidiaries or (ii) is listed on Schedule 9.7 of this
Shareholders’ Agreement (collectively, the “Prohibited Transferees”) and (B) not later than ten
(10) Trading Days prior to the effective date of any proposed assignment pursuant to SOF’s
Assignment Right, SOF shall provide the Company with written notice of such proposed assignment,
such notice to contain the name and address of the proposed assignee. Upon request, the Company
shall certify to SOF and the proposed transferee the list of “Prohibited Transferees” and the
Company and PEWC shall provide any information then known by the Company or PEWC (as applicable,
without any requirement of inquiry or investigation) regarding the Prohibited Transferees as shall
be reasonably requested by SOF or a proposed SOF Transferee. Nothing expressed or referred to in
this Shareholders’ Agreement shall be construed to give any Person other than the Parties any legal
or equitable right, remedy, or claim under or with respect to this Shareholders’ Agreement or any
provision of this Shareholders’ Agreement. This Shareholders’ Agreement and all of its provisions
and conditions are for the sole and exclusive benefit of the Parties and the successors and
permitted assigns of the Parties.
9.8 Joinder of Transferees. (a) Without modifying any of the other terms of this
Shareholders’ Agreement, for so long as PEWC continues to Control the Company after giving effect
to any Transfer, PEWC may Transfer any Share(s) Owned by it to one or more Persons; provided that
such Party agrees in writing for the benefit to the Parties to be bound by all of the terms of
Articles V, VIII and IX hereof.
(b) To the extent that SOF shall Transfer any Share(s) Owned by it and such Transfer is either
(i) to an Affiliate or (ii) in connection with such Transfer, SOF’s Assignment Right is applicable,
at the option of SOF, such transferee (an “SOF Transferee”) thereof may agree in writing for the
benefit of the Parties to be bound by all of the terms of this Shareholders’ Agreement to the same
extent as SOF, and be treated for all purposes herein as if it were a Party, by executing a joinder
in the form of Exhibit A hereto (a “Shareholders Joinder”), which PEWC and APWC shall countersign
and provide to such transferee.
- 27 -
9.9 Severability. If any provision of this Shareholders’ Agreement is held invalid,
illegal or unenforceable by any court of competent jurisdiction, the other provisions of this
Shareholders’ Agreement shall remain in full force and effect. Any provision of this Shareholders’
Agreement held invalid, illegal or unenforceable only in part or degree shall remain in full force
and effect to the extent not held invalid, illegal or unenforceable. The Parties shall endeavor in
good faith negotiations to replace any invalid, illegal or unenforceable provision with a valid,
legal and enforceable provision, the effect of which comes as close as possible to that of the
invalid, illegal or unenforceable provision.
9.10 Article and Section Headings; Construction. The headings of Articles and
Sections in this Shareholders’ Agreement are provided for convenience only and shall not affect the
construction or interpretation of this Shareholders’ Agreement. All references to “Article,”
“Articles,” “Section,” or “Sections” refer to the corresponding Article, Articles, Section, or
Sections of this Shareholders’ Agreement. All words used in this Shareholders’ Agreement shall be
construed to be of such gender or number as the circumstances require. Unless otherwise expressly
provided, the word “including” does not limit the preceding words or terms.
9.11 Time of the Essence. With regard to all dates and time periods set forth or
referred to in this Shareholders’ Agreement, time is of the essence.
9.12 Governing Law. This Shareholders’ Agreement shall be governed by, enforced
under, and construed in accordance with the laws of New York without regard to conflicts of law
principles (other than Section 5-1401 and 5-1402 of the New York General Obligations Law).
9.13 Contemplated Transactions. The Parties hereby covenant and agree that in
consummating each Contemplated Transaction each Party will comply with all applicable laws, rules
and regulations of any Governmental Authority or Regulatory Authority with jurisdiction over such
transactions.
9.14 Counterparts. This Shareholders’ Agreement may be executed by facsimile
signature and in one or more counterparts, each of which shall be deemed to be an original copy of
this Shareholders’ Agreement and all of which, when taken together, shall be deemed to constitute
one and the same agreement.
9.15 Specific Performance. The Parties expressly agree that they will be irreparably
damaged if this Shareholders’ Agreement is not specifically enforced. In any action or proceeding
to specifically enforce the provisions of this Shareholders’ Agreement, any Person (including,
without limitation, the Company) against whom such action or proceeding is brought hereby waives
the claim or defense therein that the plaintiff or claimant has an adequate remedy at law, and such
Person shall not argue in any such action or proceeding the claim or defense that such remedy at
law exists. Upon a breach or threatened breach of the terms, covenants and/or conditions of this
Shareholders’ Agreement by any Party, each other Party shall, in addition to all other remedies
available herein with respect to such breach, be entitled to a temporary or permanent injunction,
and/or a decree for specific performance, without showing any actual damage or being required to
post a bond or other security, in accordance with the provisions hereof. The provisions of this
paragraph shall not prevent any Party from seeking a remedy at law in connection with any breach of
this Shareholders’ Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Shareholders’ Agreement to be
executed, delivered, and effective as of the date first written above.
ASIA PACIFIC WIRE & CABLE CORPORATION LIMITED
By: |
/s/ Yuan Xxxx Xxxx | |||||
| Name: | Yuan Xxxx Xxxx | |||||
| Title: | Chairman | |||||
Notice Address:
7th Floor, No 132 Sec. 0
Xxx-Xxxxx Xxxx Xxxx
Xxxxxx, 000 Taiwan, ROC
Attn: Xxxx X. Xx, Esq.
Xxx-Xxxxx Xxxx Xxxx
Xxxxxx, 000 Taiwan, ROC
Attn: Xxxx X. Xx, Esq.
With a Copy to:
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
PACIFIC ELECTRIC WIRE & CABLE CO, LTD.
By: |
/s/ Tao-Xxxx Xxxx | |||||
| Name: | Tao-Xxxx Xxxx | |||||
| Title: | President | |||||
Xx. 00, Xxxxxxx 0
Xxxxxx Xxxxx Xxxx
Xxxxxx, 000 Taiwan, ROC
Attn: Yuan Xxxx Xxxx, Chairman
Xxxxxx Xxxxx Xxxx
Xxxxxx, 000 Taiwan, ROC
Attn: Yuan Xxxx Xxxx, Chairman
With a Copy to:
Xxxxxxx Xxxxxxxx & Wood LLP
Two World Financial Center
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxx Xxxx, Esq.
Fax: (000) 000-0000
Two World Financial Center
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxx Xxxx, Esq.
Fax: (000) 000-0000
SOF INVESTMENTS, L.P.
By: MSD Capital, L.P., its General Partner
By: MSD Capital Management LLC, its General Partner
By: MSD Capital Management LLC, its General Partner
By:
|
/s/ Xxxx X. Xxxxxx
|
|||
| Name: Xxxx X. Xxxxxx | ||||
| Title: Manager and General Counsel |
Notice Address:
SOF Investments, L.P.
Attention: General Counsel
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: General Counsel
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
With a Copy to:
Xxxxxx and Xxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
APPENDIX A
DEFINITIONS
“Affiliate” shall have the meaning assigned to such term in Rule 405 of the Securities Act.
“APWC” shall have the meaning assigned to such term in the Preamble to this Shareholders’
Agreement.
“Board Observer” shall have the meaning assigned to such term in Section 3.1.
“Board of Directors” shall mean the board of directors of the Company.
“Board Materials” shall have the meaning assigned to such term in Section 3.1.
“Business Day” shall mean any day other than a Saturday, Sunday or other day on which
commercial banks in New York, New York are authorized by law to close.
“Closing” shall have the meaning assigned to such term in Section 8.2.
“Code” shall refer to the Internal Revenue Code as found in 26 U.S.C.
“Code Section 951” shall mean 26 U.S.C. § 951 or any similar statute hereafter enacted having
substantially the same purpose and effect as such Code Section.
“Code Section 951(a)” shall mean 26 U.S.C. § 951(a) or any similar statute hereafter enacted
having substantially the same purpose and effect as such Code Section.
“Code Section 951(b)” shall mean 26 U.S.C. § 951(b) or any similar statute hereafter enacted
having substantially the same purpose and effect as such Code Section.
“Code Section 957” shall mean 26 U.S.C. § 957 or any similar statute hereafter enacted having
substantially the same purpose and effect as such Code Section.
“Code Section 1291” shall mean 26 U.S.C. § 1291 or any similar statute hereafter enacted
having substantially the same purpose and effect as such Code Section.
“Code Section 1295” shall mean 26 U.S.C. § 1295 or any similar statute hereafter enacted
having substantially the same purpose and effect as such Code Section.
“Code Section 1297” shall mean 26 U.S.C. § 1297 or any similar statute hereafter enacted
having substantially the same purpose and effect as such Code Section.
“Common Stock” shall mean the common shares, US$0.01 par value, of the Company and shall
include, without limitation, any share(s) or other security(ies) of the Company issued in exchange
for, with respect to, or resulting from or in connection with, any dividend on, or split,
recapitalization, reclassification, exchange, or change in par value of, any share(s) of Common
Stock or resulting from or in connection with any recapitalization, reclassification, exchange,
combination, subdivision, consolidation, amalgamation, or restructuring of the Company.
“Company” shall have the meaning assigned to such term in the Preamble to this Shareholders’
Agreement.
“Consent” shall mean any approval, consent, ratification, waiver, or other authorization
(including any governmental or regulatory authorization).
“Contemplated Transaction” and “Contemplated Transactions” shall mean each, and collectively
all, respectively, of the transactions contemplated by this Shareholders’ Agreement.
“Contract” shall mean any agreement, contract, obligation, promise, or undertaking (whether
written or oral and whether express or implied) that is legally binding.
“Control” shall have the meaning assigned to such term in Rule 405 of the Securities Act.
“Controlled Foreign Corporation” or “CFC” shall have the meaning assigned to such term in
Section 4.1(a).
“Convertible Securities” shall mean (i) any options or warrants to purchase or other rights to
acquire Common Stock, (ii) any securities by their terms convertible into or exchangeable for
Common Stock, and (iii) any options or warrants to purchase or other rights to acquire any such
convertible or exchangeable securities.
“Effectiveness Date” shall mean the date on which the SEC declares the initial Registration
Statement filed hereunder to be effective.
“Effectiveness Period” shall have the meaning set forth in Section 6.1(a).
“Election Notice” shall have the meaning set forth in Section 7.2.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules,
regulations, and forms promulgated thereunder.
“Event” shall have the meaning set forth in Section 6.1(b).
“Foreign Securities Market” shall mean one or more of the principal or secondary exchanges for
the public trading of equity securities in any of Hong Kong, Tokyo or Singapore.
“Form W-8BEN” shall mean the Form, as adopted by the IRS entitled, “Certificate of Foreign
Status or Beneficial Owner for United States Withholding” or any similar, successor Form as adopted
by the IRS.
“Form W-9” shall mean the Form, as adopted by the IRS entitled, “Request for Taxpayer
Identification Number and Certification” or any similar, successor Form as adopted by the IRS.
“Form 5471” shall mean the Form, as adopted by the IRS entitled, “Information Return of U.S.
Persons With Respect to Certain Foreign Corporations” or any similar, successor Form as adopted by
the IRS.
“Form 8621” shall mean the Form, as adopted by the IRS entitled, “Return of a Shareholder of a
Passive Foreign Investment Company or Qualified Electing Fund” or any similar, successor Form as
adopted by the IRS.
“Governmental Authority” shall mean any (a) national, federal, state, local, county,
municipal, city, town, village, district, foreign, or other government or jurisdiction of any kind,
character, or nature whatsoever, (b) governmental or quasi-governmental authority of any kind,
character, or nature whatsoever (including, without limitation, any court, judge, tribunal, agency,
branch, department, commission, board, bureau, official, administrator, regulator, legislator,
instrumentality, arbitrator, or mediator), (c) multi-national organization or body, or (d)
individual Person or body exercising, or entitled to exercise, any administrative, executive,
judicial, legislative, police, regulatory, or taxing authority or power of any kind, character, or
nature whatsoever.
“Group” shall have the meaning assigned to such term in Section 13(d)(3) of the Securities
Act.
“IRS” shall mean the United States Internal Revenue Service.
“Legal Requirement” shall mean, with respect to any Person, any federal, state, local,
municipal, foreign, international, multinational, or other administrative order, constitution, law,
ordinance, principle of common law, regulation, statute, or treaty applicable to such Person.
“Libor Rate” shall mean, the average daily rate of a fluctuating rate of interest equal to the
three (3) month London interbank offered rate as published in the “Money Rates” section of The Wall
Street Journal.
“Notification” shall mean a writing containing any information required by this Shareholders’
Agreement to be communicated to any Person, which shall be sent in accordance with Section 9.2
hereof.
“Order” shall mean any award, decision, injunction, judgment, order, ruling, subpoena, or
verdict entered, issued, made, or rendered by any court, administrative agency, or other
Governmental Authority or by any arbitrator.
“Organizational Documents” shall mean (a) the articles or certificate of incorporation,
memorandum of association and the bye-laws of a corporation; (b) the partnership agreement or any
statement of partnership of a general partnership; (c) the limited partnership agreement and the
certificate of limited partnership of a limited partnership; (d) any charter or similar document
adopted or filed in connection with the creation, formation, or organization of a Person; and (e)
any amendment to any of the foregoing.
“Own,” “Owns,” “Owned,” and “Ownership” shall mean beneficial ownership as determined pursuant
to and in accordance with Rule 13d-3 promulgated under the Exchange Act and, for purposes of this
Shareholders’ Agreement, any determination of ownership at any time shall be equitably adjusted for
any stock split, combination, recapitalization, dividend, distribution, and other similar
transaction occurring after the date of this Shareholders’ Agreement.
“Owner” shall mean, with respect to any Share(s), the Person(s) that Owns such Share(s).
“Party” or “Parties” shall have the meaning assigned to such term in the Preamble to this
Shareholders’ Agreement.
“Permitted Exception” shall mean any required consent or approval of, or filing with or notice
to, a Regulatory Authority related to the registration of the Shares with such Regulatory
Authority, the listing of the Shares on a Securities Market or any amendment to the Bye-laws or
other Organizational Documents of the Company occurring after the date hereof.
“Permitted Issuance” shall mean (i) the issuance of any Shares of Common Stock pursuant to the
exercise or exchange of any Convertible Securities outstanding as of the date hereof; (ii) the
issuance of any Shares of Common Stock or Convertible Securities (and subsequent exercise or
exchange of such Convertible Security) to independent directors, officers or employees of the
Company, in connection with their service as directors of the Company or their employment by the
Company or their service as an officer of the Company; (iii) the issuance of any Shares of Common
Stock or Convertible Securities as consideration for the acquisition by the Company or any
Subsidiary of the Company of another business entity or interest therein by merger, amalgamation,
purchase of substantially all the assets or other business combination or investment, or (iv) the
issuance of any Shares of Common Stock pursuant to a stock dividend or upon any stock split or
other subdivision or combination of Shares.
“Person” shall mean any individual, sole proprietorship, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint venture, estate,
trust, association, organization, labor union, entity, or Governmental Authority.
“PEWC” shall have the meaning assigned to such term in the Preamble to this Shareholders’
Agreement.
“PFIC” or “Passive Foreign Investment Company” shall have the meaning as set out in Code
Section 1297.
“PFIC Accounting Claim Period” shall have the meaning set forth in Section 4.1(f) of this
Shareholders’ Agreement.
“PFIC Rules” shall mean 26 U.S.C. §§ 1291-98 or any similar statutes hereafter enacted having
substantially the same purpose and effect as such Code Section.
“Piggyback Notice” shall have the meaning as set forth in Section 6.3.
“Preemptive Notice” shall mean a Notification which shall describe fully: (i) the terms,
including the price, of the proposed Transfer; (ii) the number of Shares equal to SOF’s Pro Rata
Amount of such Shares being sold; (iii) method of proposed Transfer; and (iv) the proposed closing
date of the Transfer.
“Preemptive Right” shall have the meaning assigned to such term in Section 7.1.
“Preemptive Shares” shall have the meaning assigned to such term in Section 7.1.
“Proceeding” shall mean any formal action, arbitration, mediation, dispute resolution, audit,
hearing, investigation, litigation, or suit (whether civil, criminal, administrative,
investigative) in, commenced, brought, conducted, or heard by or before, or otherwise involving,
any judge, court, arbitrator, mediator, or Governmental Authority of any kind, character, or
nature, the results of which shall be legally binding on the parties subject thereto.
“Process Agent” shall have the meaning set forth in Section 9.3.
“Prohibited Transferees” has the meaning set forth in Section 9.7.
“Proposals” shall have the meaning as set forth in Section 3.3.
“Pro Rata Amount” shall have the meaning set forth in Section 7.1.
“Prospectus” shall mean the prospectus included in a Registration Statement (including,
without limitation, a prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A promulgated under
the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable Securities covered by a Registration
Statement, and all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
“Put Closing” shall have the meaning set forth in Section 6.6.
“Put Event” shall mean any date (i) after November 30, 2008 whereby (A) an Event has occurred
and continues to occur or (B) the Shares are not quoted on the Nasdaq OTC Bulletin Board or (ii)
after January 31, 2009 whereby the Shares are not listed on a US Securities Market.
“Put Price” shall mean for (i) Shares purchased pursuant to the Stock Purchase Agreement, an
aggregate amount equal to the product of (a) the number of Shares being sold and (b) US$4.35 and
(ii) Shares purchased under Section VII hereof, an aggregate amount equal to the purchase price
therefor.
“Put Right” shall have the meaning set forth in Section 6.6.
“Put Shares” shall have the meaning set forth in Section 6.6.
“QEF Election” shall mean “qualified electing fund” as established in Code Section 1295.
“Registrable Securities” shall mean at any time the Shares beneficially Owned by SOF (and SOF
Permitted Assignees, if any) or any SOF Transferee (but only with respect to the Shares of Common
Stock so Transferred) who agrees to be bound by the terms and conditions hereof, which Shares are
acquired by SOF pursuant to the Stock Purchase Agreement or Article VII hereof; provided,
however, that Registrable Securities shall not include any Shares (i) the sale of which has
been registered pursuant to the Securities Act and which shares have been sold pursuant to such
registration or (ii) which have been sold pursuant to Rule 144 or Rule 144A of the SEC under the
Securities Act.
“Registration Statement” shall mean a registration statement of the Company under the
Securities Act, as amended.
“Regulatory Authority” shall mean the SEC, the Bermuda Monetary Authority and any other
regulatory or administrative Governmental Authority having competent jurisdiction over one or more
of the Contemplated Transactions.
“Rule 144” shall mean Rule 144 promulgated by the SEC pursuant to the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the
SEC having substantially the same purpose and effect as such rule.
“Rule 144(k)” shall mean Rule 144(k) promulgated by the SEC pursuant to the Securities Act, as
such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the SEC having substantially the same purpose and effect as such rule.
“Rule 144A” shall mean Rule 144A promulgated by the SEC pursuant to the Securities Act, as
such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the SEC having substantially the same purpose and effect as such rule.
“Rule 415” shall mean Rule 415 promulgated by the SEC pursuant to the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the
SEC having substantially the same purpose and effect as such rule.
“Rule 424” shall mean Rule 424 promulgated by the SEC pursuant to the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the
SEC having substantially the same purpose and effect as such rule.
“Satisfactory Contract Terms” shall have the meaning set forth in Section 3.2.
“SEC” shall mean the Securities and Exchange Commission.
“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules,
regulations, and forms promulgated thereunder.
“Securities Market” shall have the meaning as set forth in Section 6.5.
“Share” or “Shares” shall mean the shares of the Company, including without limitation the
Common Stock, now or in the future Owned beneficially by a Shareholder, and all securities of the
Company that may be issued in exchange for or in respect of such shares or securities (including,
without limitation, all securities issued or resulting from any dividend, stock split, subdivision,
consolidation, recapitalization, or amalgamation effected by the Company).
“Shareholder” and “Shareholders” shall mean each, and collectively all, respectively, of (a)
the parties to this Shareholders’ Agreement (other than the Company) and (b) the successors of the
parties to this Shareholders’ Agreement (other than the Company).
“Shareholders’ Agreement” shall have the meaning assigned to such term in the Preamble to this
Shareholders’ Agreement.
“Shareholders Joinder” shall have the meaning assigned to such term in Section 9.8(a) of this
Shareholders’ Agreement.
“SOF” shall have the meaning assigned to such term in the Preamble to this Shareholders’
Agreement.
“SOF Permitted Assignees” shall mean any assignee of SOF as permitted pursuant to Section 9.7
hereof.
“SOF’s Assignment Right” shall have the meaning assigned to such term in Section 9.7.
“Stock Purchase Agreement” shall mean that certain Stock Purchase Agreement by and between
Sino-JP Fund Co., Ltd. and SOF Investment, L.P., dated as of the date hereof.
“Subsidiary” shall mean any corporation, association, trust, limited liability company or
other business entity of which the designated Person shall at any time own or control, directly or
indirectly, through a Subsidiary or Subsidiaries at least a majority (by number of votes) of the
outstanding shares of capital stock (or other beneficial interests) which are (a) entitled
ordinarily, in the absence of contingencies, to vote for the election of a majority of such
business entity’s directors (or Persons exercising similar functions), even if the right to vote
may have been suspended by the happening of such a contingency, or (b) entitled at the time to vote
for the election of a majority of such business entity’s directors (or persons exercising similar
functions), whether or not the right so to vote exists by reason of the happening of a contingency.
“Tag Along Right” shall have the meaning assigned to such term in Section 5.1.
“Tag Along Shares” shall mean, for a Shareholder, the number of Shares equal to the product of
(i) the number of Shares Owned by such Shareholder multiplied by (ii) a fraction, the numerator of
which is the number of Shares the Transferring Shareholder(s) propose(s) to sell or otherwise
dispose of to the Tag Along Transferee, and the denominator of which is the total number of issued
and outstanding Shares Owned by the Transferring Shareholder(s) prior to the proposed Transfer of
Tag Along Shares of the Company.
“Tag Along Transferee” shall mean a party or parties that is not a Subsidiary of PEWC.
“Tag Along Notice” shall mean a Notification which shall describe fully: (i) the terms,
including the price, of the proposed Transfer; (ii) the number of Shares held by PEWC to be
disposed of; (iii) the number representing the Tag Along Shares should SOF elect to exercise the
Tag Along Rights; (iv) the name and address of the Tag Along Transferee; and (v) the proposed
closing date of the Transfer.
“Trading Day” shall mean days on which Securities Markets are open for trading in New York,
New York.
“Transfer” shall mean any issuance, sale or transfer, whether or not outright or as security,
inter vivos or testamentary, with or without consideration, voluntary or involuntary, of all or any
part of any right, title or interest (including but not limited to voting rights) in or to any
Shares. A voluntary pledge of Shares as collateral shall not constitute a Transfer when such
Shares are pledged, but any subsequent transfer in connection with such pledge shall constitute a
Transfer.
“US Securities Market” shall have the meaning as set forth in Section 6.5.
“Underwritten Offering” shall mean an offering in which Shares are offered and sold on a firm
commitment basis through one or more underwriters, all pursuant to an underwriting agreement
between the Company and SOF and such underwriter(s).
SCHEDULE 9.7
PROHIBITED TRANSFEREES
Sino-JP Fund Co., Ltd.
Asset Managers Co., Ltd.
Xxxxxx Sham
Xxxxx Xxxxxxxx
Xxxx Xxx
Xxxxxx Xxxx
Hu Xxxx Xxxx
Xxxx Xx Xxx
Xxxx Xxxxx Xxx
Sun Tao Xxxx
Xxxxx Xxxxx Xxxx
Xxxx Jwu Xx
Xx Xxx Xxxx Xxxxxx
Xxx Xxx Xxxx Xxx
Xx Sun Mar Xx
Xxxxx Che Xxxx
Xxx Xxx Xxxx
Xxx Xxx Na,Xxxxx
Xxxx Kun To
Xxxxx Xxxx Hung, Xxxxxxx
Xxxxx Xxx Xxxx
Xxxx Hong
Gold Global Limited
PCL Nominees Limited
Greateam Limited
Harmutty Limited
Haddowe Limited
Casparson Properties Limited
Afterville Limited
Nee Soon Limited
Showground Limited
Berridale Developments Limited
Jutech Investments Limited
All Dragon International Limited
Xxxxxx Enterprises Limited
Patagonia Limited
Texan Management Limited
Clipper Investment Limited
Pacific Capital (Asia) Limited
All Dragon International Limited
PCL Holdings Limited
Xxxxxxx Pacific Financial Service (Holdings) Limited
Super Wish Limited
Fu-Hua Investments Ltd.
Xin-Hua Investments Ltd.
Bau-Hua Investments Ltd.
Xxxx Xxx Xxx
Xx Xxx Xxx
Xxxx Xxxx Wen Xxxx
Xxxxx Vitelic Corp.
Vision2000 Venture Ltd. (Cayman)
Promos Technologies Inc.
Denmos Technologies Inc.
Giant Haven Investment Ltd. (BVI)
Bau-De
Investment Ltd.
Mau-Fu
Development Ltd.
Xxxx Technologies Inc.
Integrated Memory Technologies Inc.
PacMos Technologies Holdings Limited
Soft Device Inc.
Xxxxx-Xxxx
Security Ltd.
Syncmos Technologies Inc.
Xx-Xxx Technologies Inc.
ChipMos Technologies (Bermuda) Ltd.
Third Dimension Semiconductor, Inc.
Fortune Wave Profits Ltd.
Great Wall Semiconductor Corporation
ThaiLin Semiconductor Corp.
ChipMos Technologies (Shanghai) Ltd.
Exhibit A
Form of Joinder
Form of Joinder
SHAREHOLDERS’ AGREEMENT JOINDER
This Shareholders’ Agreement Joinder (this “Joinder”) is made as of , ___,
by and among ASIA PACIFIC WIRE & CABLE CORPORATION LIMITED, a Bermuda company (the
“Company”), PACIFIC ELECTRIC WIRE & CABLE CO., LTD., a Taiwan, ROC company (“PEWC”
and together with the Company, the “Current Parties”) and , a company
(“Transferee”). Capitalized terms used and not otherwise defined herein shall have the
meanings set forth in the Shareholders’ Agreement (as defined below).
RECITALS
WHEREAS, the Current Parties are parties to that certain Shareholders’ Agreement (as modified
from time to time, the “Shareholders’ Agreement”), dated as of June ___, 2007; and
WHEREAS, as of the date hereof, Transferee is acquiring Shares of Common Stock (the
“Transferred Shares”) from SOF Investments, L.P., a Delaware limited partnership or a
transferee of SOF (“SOF” and such transfer, the “Transfer”) and in connection
therewith, Transferee wishes to enter into this Joinder in order to become a party to the
Shareholders’ Agreement and assume certain of the rights, and become bound by the obligations, of
SOF (or its transferee) thereunder with respect to the Transferred Shares.
NOW, THEREFORE, the parties hereto agree as follows:
1. Transferee hereby accedes to and expressly agrees to be bound by the terms of the
Shareholders’ Agreement to the same extent as SOF with respect to the Transferred Shares.
2. Each of the Company and PEWC acknowledge that this Joinder is effective to make the
Transferee a party to the Shareholders’ Agreement and that the Transferee shall be entitled to the
benefits of all of the terms and conditions of the Shareholders’ Agreement to the same extent as
SOF with respect to the Transferred Shares.
3. This Joinder may be executed by facsimile signature and in one or more counterparts, each
of which shall be deemed to be an original copy of this Joinder and all of which, when taken
together, shall be deemed to constitute one and the same agreement.
4. All notices, consents, waivers and other communication to Transferee in accordance with
Section 9.2 of the Shareholders’ Agreement shall be addressed as follows:
[Name]
[Address]
[Attention]
[Fax]
[Address]
[Attention]
[Fax]
5. This Joinder shall be governed by, enforced under, and construed in accordance with the
Laws of the State of New York without regard to conflicts of law principles (other than Sections
5-1401 and 5-1402 of the New York General Obligations Law).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have caused this Joinder to be executed, delivered, and
effective as of the date first written above.
ASIA PACIFIC WIRE & CABLE CORPORATION LIMITED
By: |
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| Name: | ||||||
| Title: | ||||||
PACIFIC ELECTRIC WIRE & CABLE CO, LTD.
By: |
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By: |
||||||
| Name: | ||||||
| Title: | ||||||
[TRANSFEREE]
By: |
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By: |
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| Name: | ||||||
| Title: | ||||||
