EXHIBIT 4.17
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DATED 30TH NOVEMBER, 2004
ASIA SATELLITE TELECOMMUNICATIONS COMPANY LIMITED
AND
MACAU CABLE TV, LIMITED
AND
PACIFIC SATELLITE INTERNATIONAL LIMITED
AND
SKYWAVE TV COMPANY LIMITED
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SUBSCRIPTION AGREEMENT
RELATING TO SHARES IN
THE CAPITAL OF
SKYWAVE TV COMPANY LIMITED
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION.......................................2
2. ALLOTMENT, ISSUE AND SUBSCRIPTION OF SUBSCRIPTION SHARES.............4
3. SUBSCRIPTION FUNDS...................................................4
4. COMPLETION...........................................................5
5. WARRANTIES...........................................................6
6. RESTRICTION ON ANNOUNCEMENTS.........................................6
7. COSTS................................................................7
8. GENERAL..............................................................7
9. NOTICES..............................................................8
10. GOVERNING LAW AND STATEMENT OF DISPUTE...............................9
11. FIRST SCHEDULE - SHAREHOLDERS' AGREEMENT
CONFIDENTIAL
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THIS SUBSCRIPTION AGREEMENT is made on the 30th day of November, 2004
BETWEEN :
MACAU CABLE TV, LIMITED, a company with its principal office at Alamedd Dr,
Xxxxxx X xxxxxxxxx N411-417, Edificio Xxxxxxx Xxxxx, 00 Xxxxx, Xxxxx, Telephone
No. (853) 781812, Facsimile No. (853) 781821 (the "MCTV");
PACIFIC SATELLITE INTERNATIONAL LIMITED, a company incorporated in the Hong Kong
SAR ("HONG KONG") with its registered office at Xxxx 0000, Xxxxx Merchants
Tower, Shun Tak Centre, 000 Xxxxxxxxx Xxxx Xxxxxxx, Xxxx Xxxx ("PSIL");
SKYWAVE TV COMPANY LIMITED (previously known as "Auspicious City Limited"), a
company with its registered office at 23rd Floor, East Exchange Tower, 00
Xxxxxxxx Xxxx, Xxxxxxxx Xxx, Xxxx Xxxx, Telephone No. (000) 0000 0000, Facsimile
No. (000) 0000 0000 (the "Company"); and
ASIA SATELLITE TELECOMMUNICATIONS COMPANY LIMITED, a company with its registered
office at 23rd Floor, East Exchange Tower, 00 Xxxxxxxx Xxxx, Xxxxxxxx Xxx, Xxxx
Xxxx, Telephone No. (000) 0000 0000, Facsimile No. (000) 0000 0000 ("AsiaSat").
AsiaSat, MCTV and PSIL shall hereafter together be referred to as the
"Subscribers".
WHEREAS:
A. At the date of this Agreement, the authorised share capital of the
Company is HK$50,000,000 (Fifty Million Hong Kong dollars) divided into
5,000,000 (Five Million) shares of which the following shares have been
allotted fully paid and issued to, and are registered in the names of
and beneficially owned by, the following persons:-
Asia Satellite Telecommunications Company Limited 99 (Ninety Nine) shares
(AsiaSat)
Xxxxx Xxxxxxx on behalf of AsiaSat 1 (One) share
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B. The Company has agreed to issue and the Subscribers have agreed to
subscribe for 2,999,900 (Two Million Nine Hundred and Ninety-Nine
Thousand and Nine Hundred) shares upon and subject to the terms and
conditions set out in this Agreement.
NOW IT IS HEREBY AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, where the context so admits, the following words and
expressions shall have the following meanings:
"BANKING DAY" means a day (excluding Saturday) on which licensed banks
in Hong Kong are generally open for business;
"BOARD" means the board of directors of the Company;
"COMPANIES ORDINANCE" means the Companies Ordinance (Chapter 32 of the
Laws of Hong Kong);
"COMPLETION" means completion of the transactions contemplated herein
pursuant to Clause 4;
"HK$ or HONG KONG DOLLARS" means the lawful currency of Hong Kong;
"HONG KONG" means the Hong Kong Special Administrative Region of the
People's Republic of China;
"INTELLECTUAL PROPERTY RIGHTS" means
(a) patents, trade marks, service marks, registered designs,
applications and rights to apply for any of those rights,
trade, business and company names, internet domain names and
e-mail addresses, unregistered trade marks and service marks,
copyrights, database rights, know-how, rights in designs and
inventions;
(b) rights under licences, consents, orders, statutes or otherwise
in relation to a right in paragraph (a);
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(c) rights of the same or similar effect or nature as or to those
in paragraphs (a) and (b) which now or in the future may
subsist; and
(d) the right to xxx for past infringements of any of the
foregoing rights;
"PARTIES" means the named parties to this Agreement and their
respective successors and assigns and a "Party" means any of them;
"SECURITY INTEREST" means a mortgage, charge, pledge, lien, option,
restriction, right of first refusal, right of pre-emption, third-party
right or interest, other encumbrance or security interest of any kind,
or another type of preferential arrangement (including, without
limitation, a title transfer or retention arrangement) having similar
effect;
"SHAREHOLDERS' AGREEMENT" means the shareholders' agreement in the form
set out in the First Schedule;
"SUBSCRIPTION FUNDS" means [
] being the total consideration
for the allotment and issue of the Subscription Shares;
"SUBSCRIPTION SHARES" means 2,999,900 (Two Million and Nine Hundred
Ninety-Nine Thousand and Nine Hundred) shares to be allotted and issued
pursuant to Clause 2; and
"TAX" means all forms of taxation, estate duties, deductions, with
holdings, duties, imposts, levies, fees, charges, social security
contributions and rates imposed, levied, collected, withheld or
assessed by any local, municipal, regional, urban, governmental, state,
federal or other body in Hong Kong or elsewhere and any interest,
additional taxation, penalty, surcharge or fine in connection
therewith.
1.2 Save where the context otherwise requires, words and phrases the
definitions of which are contained or referred to in the Companies
Ordinance shall be construed as having the meanings thereby attributed
to them.
1.3 References in this Agreement to Clauses and Schedules are to clauses in
and schedules to this Agreement (unless the context otherwise
requires). The recitals and the schedules to this Agreement shall be
deemed to form part of this Agreement.
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1.4 Headings are inserted for convenience only and shall not affect the
construction of this Agreement.
1.5 The expression "THE SUBSCRIBERS" include their successors and assigns.
1.6 References to "PERSON" shall include bodies corporate, unincorporated
associations and partnerships (whether or not having separate legal
personality).
1.7 References to writing shall include any methods of producing or
reproducing words in a legible and non-transitory form.
1.8 The masculine gender shall include the feminine and neuter and the
singular number shall include the plural and vice versa.
2. ALLOTMENT, ISSUE AND SUBSCRIPTION OF SUBSCRIPTION SHARES
2.1 Subject to the terms and conditions of this Agreement, the Subscribers
agree to subscribe for, and the Company agrees to issue and allot to
the Subscribers or their nominees free from any Security Interest, the
Subscription Shares on Completion as follows :
(a) AsiaSat as to 2,399,900 of the Subscription Shares at a
subscription price of HK$10 each, making up [ ] of
the Subscription Funds.
(b) MCTV as to 300,000 of the Subscription Shares, at a
subscription price of HK$10 each, making up [ ] of
the Subscription Funds.
(c) PSIL as to 300,000 of the Subscription Shares, at a
subscription price of HK$10 each, making up [ ] of
the Subscription Funds.
The Subscription Shares will be issued as fully paid, free from any
Security Interest, and will rank pari passu in all respects with the
existing shares of the Company.
3. SUBSCRIPTION FUNDS
3.1 The Subscription Funds due to the Company shall be payable by AsiaSat
in cash, both MCTV and PSIL in the form of contribution in-kind as set
out in the Shareholders' Agreement, which the Subscribers hereby
undertake to enter into.
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4. COMPLETION
4.1 Completion shall take place and at such place as the Parties may agree
when all (but not some only) of the events described in this Clause 4
shall occur.
4.2 At Completion, the Company shall:
(a) allot and issue all the Subscription Shares credited as fully
paid to the Subscribers or its nominee(s); and
(b) deliver to the Subscribers:
(i) a certified true copy of the resolutions of the Board
approving and authorising the execution and
completion of this Agreement and acknowledging the
Shareholders' Agreement, and the issue of the
Subscription Shares credited as fully paid to the
Subscribers;
(ii) a duly issued share certificate for each Subscriber
in respect of their respective number of Subscription
Shares; and
(iii) the Shareholders' Agreement duly executed by all the
parties thereto; and
(c) procure the appointment of such person as the Subscribers may
have nominated by notice in writing given to the Company prior
to Completion as a director of the Company; and
(d) enter the name of the Subscribers in the register of members
of the Company as the holders of their respective number of
Subscription Shares.
4.3 At Completion, each Subscriber shall deliver to the Company :
(a) a counterpart Shareholders' Agreement duly executed by the
Subscriber; and
(b) a certified true copy of the resolutions of the board of
directors of the Subscriber approving and authorising the
execution and completion of this Agreement and the execution
of the Shareholders' Agreement.
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4.4 Without prejudice to any other remedies available to either party, if
in any respect the provisions of this Clause 4 are not complied with by
the Company or any one of the Subscribers, as the case may be, at
Completion, any one of the Subscribers or the Company (as the case may
be) may:
(a) defer Completion to a date not later than 31st December 2004
(and so that the provisions of this Clause 4.4 shall apply to
Completion as so deferred); or
(b) proceed to Completion so far as practicable (without prejudice
to its rights under this Agreement); or
(c) rescind this Agreement (without prejudice to its accrued
rights under this Agreement).
5. WARRANTIES
5.1 The Company represents and warrants to the Subscribers that the
information contained in this Clause 5 are and will at Completion and
will at all times between the date of this Agreement and Completion be
true, complete and accurate in all material respects and that the
Subscription Shares will be allotted and issued pursuant to this
Agreement free from all claims, charges, liens, encumbrances and
equities and will rank pari passu in all respects with the existing
shares of the Company.
5.2 The Subscribers represent and warrant to the Company that they have
power to enter into this Agreement and this Agreement has been duly
authorised and executed by, and constitutes legally binding obligations
of the Subscribers.
6. RESTRICTION ON ANNOUNCEMENTS
Each of the Parties undertakes that it will not, save as required by
law or by any securities exchange or any supervisory or regulatory body
to whose rules any of the Parties may be subject, make or permit or
authorise the making of any press release or other public statement or
disclosure concerning this Agreement or the transactions contemplated
hereby unless the other Parties shall have given its consent to such
announcement (which consent may not be unreasonably withheld or delayed
and may be given either generally or in a specific case or cases and
may be subject to conditions).
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7. COSTS
Each party to this Agreement shall pay its own costs of and incidental
to this Agreement and the subscription hereby agreed to be made.
8. GENERAL
8.1 This Agreement shall be binding upon and enure for the benefit of the
successors of the Parties. No Party hereto shall be entitled to assign
any of its rights or purport to transfer any of its obligations
hereunder without the prior written consent of all the other Parties.
8.2 This Agreement (together with any documents referred to herein)
constitutes the whole agreement between the Parties and supersedes any
previous agreements or arrangements between them relating to the
subject matter thereof; it is expressly declared that no variations
hereof shall be effective unless made in writing signed by duly
authorised representatives of the Parties.
8.3 All of the provisions of this Agreement shall remain in full force and
effect notwithstanding Completion (except insofar as they set out
obligations which have been fully performed at Completion).
8.4 If any provision or part of a provision of this Agreement shall be, or
be found by any authority or court of competent jurisdiction to be,
invalid or unenforceable, such invalidity or unenforceability shall not
affect the other provisions or parts of such provisions of this
Agreement, all of which shall remain in full force and effect.
8.5 Any right of rescission or other rights or remedies conferred upon any
Party in this Agreement shall be in addition to and without prejudice
to all other rights and remedies available to it at law (and, without
prejudice to the generality of the foregoing, shall not extinguish any
right to damages to which the Party may be entitled in respect of the
breach of this Agreement) and no exercise or failure to exercise such a
right of rescission shall constitute a waiver by the Party of any such
other right or remedy.
8.6 No failure of any Party to exercise, and no delay or forbearance in
exercising, any right or remedy in respect of any provision of this
Agreement shall operate as a waiver of such right or remedy.
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8.7 Upon and after Completion, the Company and the Subscribers shall at
their own cost do and execute or procure to be done and executed all
such further acts, deeds, documents and things as may be necessary to
give effect to the terms of this Agreement.
8.8 This Agreement may be executed in one or more counterparts, and by the
Parties on separate counterparts, but shall not be effective until each
Party has executed at least one counterpart and each such counterpart
shall constitute an original of this Agreement but all the counterparts
shall together constitute one and the same instrument.
8.9 The provisions of this Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors. The rights and
obligations, or any part thereof, of a Party to this Agreement may only
be assigned with the express written consent of the other Parties.
9. NOTICES
9.1 Each notice, demand or other communication given or made under this
Agreement shall be in writing in English and delivered or sent to the
relevant Party at its address or fax number set out below (or such
other address or fax number as the addressee has by 10 days' prior
written notice specified to the other Party). Any notice, demand or
other communication given or made by letter between countries shall be
delivered by airmail. Any notice, demand or other communication so
addressed to the relevant Party shall be deemed to have been delivered
(a) if delivered in person or by messenger, when proof of delivery is
obtained by the delivering Party; (b) if sent by post within the same
country, on the third day following posting, and if sent by post to
another country, on the seventh day following posting; (c) if given by
fax, upon dispatch and the receipt of a transmission report confirming
dispatch.
IF TO MCTV :
Macau Cable TV, Limited
Alameda Xx. Xxxxxx X Xxxxxxxxx,
N(degree)411-417,
Edificio Dynasty Plaza, 21(degree) Andar, Macau
Attention: The Executive Managing Director
Facsimile: (853) 781821
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IF TO PSIL :
Pacific Satellite International Limited
Room 1101, China Merchants Tower,
Shun Tak Centre
000 Xxxxxxxxx Xxxx Xxxxxxx,
Xxxx Xxxx
Attention: The Director
Facsimile No.: (000) 0000 0000
IF TO ASIASAT :
Asia Satellite Telecommunications Company Limited
23/F, East Exchange Tower,
00 Xxxxxxxx Xxxx, Xxxxxxxx Xxx,
Xxxx Xxxx
Attention: The Chief Executive Officer
Facsimile No.: (000) 0000 0000
IF TO THE COMPANY :
Skywave TV Company Limited
23/F, East Exchange Tower,
00 Xxxxxxxx Xxxx, Xxxxxxxx Xxx,
Xxxx Xxxx
Attention: The Company Secretary
Facsimile No.: (000) 0000 0000
10. GOVERNING LAW AND STATEMENT OF DISPUTE
10.1 The execution, validity, interpretation and performance of and
resolution of disputes under this Agreement shall be governed by and
construed in accordance with the officially published and publicly
available laws of the Hong Kong Special Administrative Region of the
PRC.
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10.2 Any dispute, controversy or claim arising out of, or relating to, this
Agreement, or the performance, interpretation, breach, termination or
validity hereof, shall be resolved through friendly consultation. Such
consultation shall begin immediately after one Party has delivered to
the other Parties a written request for such consultation stating
specifically the nature of the dispute, controversy or claim. If within
30 days following the date on which such notice is given the dispute
cannot be resolved, the dispute shall be referred to, and finally
resolved by, arbitration upon the request of any Party with notice to
the other Parties.
10.3 The arbitration shall be conducted in Hong Kong in accordance with the
rules of the Hong Kong International Arbitration Centre save as
modified in this Agreement. There shall be five arbitrators. Each Party
shall select one arbitrator and the Chairman of the Arbitration Centre
shall select the fifth arbitrator. All selections shall be made within
30 days after the selecting Party gives or receives the demand for
arbitration. Such arbitrators shall be freely selected, and the Parties
shall not be limited in their selection to any prescribed list. If any
arbitrator to be appointed by the Parties has not been appointed and
consented to participate within 30 days after the selection of the
first arbitrator, the relevant appointment shall be made by the
Chairman of the Arbitration Center.
10.4 The arbitration proceedings shall be conducted in English.
10.5 The arbitrators shall decide any such dispute or claim strictly in
accordance with the governing law specified in Clause 10.1. Judgment
upon any arbitral award rendered hereunder may be entered in any court
having jurisdiction, or application may be made to such court for a
judicial acceptance of the award and an order of enforcement, as the
case may be.
10.6 The costs and expenses of the arbitration, including without limitation
the fees of the arbitration, including without limitation, the fees of
translators, costs of the venue and facilities, transcript providers or
live note transcribers, the fees of the arbitration tribunal, shall be
borne equally by each party to the dispute or claim, and each party
shall pay its own fees, disbursements and other charges of its counsel.
10.7 Any award made by the arbitration tribunal shall be final and binding
on each of the Parties that were parties to the dispute. The Parties
expressly agree to waive the applicability of any laws and regulations
that would otherwise give the right to appeal the decisions of the
arbitration tribunal so that there shall be no appeal to any court of
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law for the award of the arbitration tribunal, and a Party shall not
challenge or resist the enforcement action taken by any other Party in
favour of which an award of the arbitration tribunal was given.
10.8 Each Party irrevocably consents to the service of process, notices or
other paper in connection with or in any way arising from the
arbitration or the enforcement of any arbitral award, by use of any of
the methods and to the addresses set forth for the giving of notices in
Clause 9. Nothing contained herein shall affect the right of any Party
to serve such processes, notices or other papers in any other manner
permitted by applicable law.
10.9 In order to preserve its rights and remedies, any Party shall be
entitled to seek preservation of property in accordance with law from
any court of competent jurisdiction or from the arbitration tribunal
pending the final decision or award of the arbitration tribunal.
10.10 During the period when a dispute is being resolved, except for the
matter being disputed, the Parties shall in all other respects continue
their implementation of this Agreement.
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AS WITNESS the hands of the Parties or their duly authorised representatives the
day and year first above written.
MACAU CABLE TV, LIMITED
/s/ Xxxxxxx X.Xxxxx Xxxxxx
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Authorized Representative:
Name: Xx. Xxxxxxx X.Xxxxx Xxxxxx
Title: Executive Managing Director
Date: 30th November, 2004
MACAU CABLE TV, LIMITED
/s/ Xxxxxx Xxxxxx
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Authorized Representative:
Name: Xx. Xxxxxx Xxxxxx
Title: Director
Date: 30th November, 2004
PACIFIC SATELLITE INTERNATIONAL LIMITED
/s/ Xxxxxx Xxxxx
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Authorized Representative:
Name: Xx. Xxxxxx Xxxxx
Title: Director
Date: 30th November, 2004
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SKYWAVE TV COMPANY LIMITED
/s/ Xxxxxxx Xxxx
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Authorized Representative:
Name: Xx. Xxxxxxx Xxxx
Title: Director
Date: 30th November, 2004
ASIA SATELLITE TELECOMMUNICATIONS COMPANY LIMITED
/s/ Xxxxx Xxxxxxx
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Authorized Representative:
Name: Mr. Xxxxx Xxxxxxx
Title: Chief Executive Officer
Date: 30th November, 2004
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FIRST SCHEDULE
SHAREHOLDERS' AGREEMENT
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