EXHIBIT 10.25
Execution Version
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT, dated as of December 2, 2003, by and
among SBAIF Asia Netcom (Cayman) Holdings ("Seller"), China Netcom Corporation
International Limited ("CNCIL"), Asia Netcom Corporation Limited ("ANC") and
China Netcom Corporation (Hong Kong) Limited ("Buyer").
WITNESSETH:
WHEREAS, the Seller, CNCIL and the Buyer are parties to a
shareholders agreement, dated as of March 12, 2003, by and among the Buyer,
CNCIL, Newbridge Asia Netcom (Cayman) Holdings, SB Asia Infrastructure Fund L.P.
(an affiliate of Seller and its predecessor in interest) and ANC (the
"Shareholders Agreement");
WHEREAS, the Seller owns 29,400,000 common shares of ANC;
WHEREAS, the Seller desires to sell to the Buyer, and the Buyer
desires to purchase from the Seller, all of the common shares of ANC held by
Seller on the terms and conditions set forth herein;
WHEREAS, the parties hereto wish to terminate the Shareholders
Agreement;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Shareholders
Agreement.
2. Purchase and Sale of Shares. Upon the terms and subject to the
conditions set forth herein, on the date thirty (30) business days after the
date hereof (the "Closing Date"), the Buyer shall purchase from the Seller and
the Seller shall sell to the Buyer, free and clear of any Encumbrance,
29,400,000 common shares of ANC. At the Closing, the Buyer shall pay the Seller
the Purchase Price. The Purchase Price payable to the Seller shall be an amount
in U.S. Dollars equal to (x) the sum of US$29,400,000, plus the amount of all
fees and out-of-pocket expenses incurred by the Seller in connection with the
initial acquisition by the Seller of its common shares of ANC (including such
fees and out-of-pocket expenses incurred in connection with the negotiation of
the Shareholders Agreement), the Acquisition and the monitoring and management
of its investment in ANC plus (y) the product of (i) eight percent (8%) of the
amount calculated in (x), multiplied by (ii) a fraction, the numerator of which
is the number of days elapsed from (and including) March 27, 2003 to (but
excluding) the Closing Date, and the denominator of which is 365. Payment of the
total amount of the Purchase Price shall be made by wire transfer of immediately
available funds to an account specified by Seller in writing without
withholding, set-off or deduction of any kind whatsoever.
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3. Closing. The closing of the purchase and sale hereunder (the
"Closing") shall be held on the Closing Date at the offices of Cleary, Gottlieb,
Xxxxx & Xxxxxxxx, 39th Floor, Bank of China Tower, One Garden Road, Central,
Hong Kong.
4. Representations and Warranties. Each of the parties hereto
severally, but not jointly, represents and warrants to each other party to this
Agreement as follows:
(a) Organization and Authority. It is duly incorporated or
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization and has all necessary power
and authority to enter into this Agreement, to carry out its obligations
hereunder and to perform the actions contemplated hereby. The execution and
delivery of this Agreement by it, the performance by it of its obligations
hereunder and the performance by it of the actions contemplated hereby have been
duly authorized by all requisite action on its part. This Agreement has been
duly executed and delivered by it, and (assuming due authorization, execution
and delivery by the other parties signatory hereto) this Agreement constitutes a
legal, valid and binding obligation of it enforceable against it in accordance
with its terms.
(b) No Conflict; No Consents. The execution, delivery and
performance of this Agreement by it does not and will not (a) violate, conflict
with or result in the breach of any provision of its charter or by-laws (or
similar organizational documents), (b) conflict with, violate or require any
consent under any Law applicable to such party or any of its assets, properties
or businesses or (c) conflict with, result in any breach of, constitute a
default (or event which with the giving of notice or lapse of time, or both,
would become a default) under, require any consent under, or give to others any
rights pursuant to, any contract, agreement or arrangement by which such party
is bound, except to the extent that any conflict under (b) or (c) above would
not prevent or materially hinder the performance of the actions contemplated by
this Agreement.
5. Representations and Warranties in respect of the Shares. The
Seller represents and warrants to the Buyer that it has good and marketable
title to, and is the lawful record and beneficial owner of the shares of ANC it
is transferring to the Buyer.
6. Reasonable Best Efforts. Each of the parties hereto agrees to use
its reasonable best efforts promptly to take or cause to be taken all actions
and promptly to do or cause to be done all things necessary, proper or advisable
under applicable Law to consummate and make effective the transactions
contemplated by this Agreement in accordance with the terms of this Agreement.
7. CNC Group IPO. Buyer shall use its reasonable best efforts to
provide the Seller with the opportunity to purchase shares in CNC Group prior to
its initial public offering.
8. Termination of the Shareholders Agreement; Resignation of
Directors. Each of the Seller, the Buyer and CNCIL hereby agree that the
Shareholders Agreement shall be terminated as of the Closing. Seller shall cause
Xxxxxx Xxx to resign from the board of directors of ANC, effective immediately
after the Closing.
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9. Termination of this Agreement. If the Closing has not occurred
prior to January 31, 2004, this Agreement may be terminated by Seller or Buyer
on any date thereafter by delivering written notice to each of the other parties
hereto; provided, that the right to terminate this Agreement pursuant to this
paragraph 9 shall not be available to any party whose failure to fulfill in a
timely manner any of its obligations hereunder or failure to satisfy any
condition to Closing hereunder, has been the cause of, or resulted in, the
failure of the Closing to occur on or before such date.
10. Entire Agreement. This Agreement (including the Share Transfer
Form annexed hereto) and any collateral agreements executed in connection with
the consummation of the transactions contemplated hereby contain the entire
agreement between the parties with respect to the transfer of the shares of ANC
to the Buyer and supersede all prior agreements, written or oral, with respect
thereto.
11. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.
12. Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, United States of America. To the fullest extent permitted by applicable
law, each party hereto irrevocably submits to the jurisdiction of any federal or
state court in the Borough of Manhattan in the City of Xxx Xxxx, Xxxxxx xxx
Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of America, in any suit or proceeding based on
or arising under this Agreement, and irrevocably agrees that all claims in
respect of such suit or proceeding may be determined in any such court. Each
party hereto, to the fullest extent permitted by applicable law, irrevocably and
fully waives the defense of an inconvenient forum to the maintenance of such
suit or proceeding and Buyer and Seller each hereby irrevocably designate and
appoint CT Corporation System located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Process Agent"), as its authorized agent upon whom process may be served
in any such suit or proceeding. Buyer and Seller shall notify the Process Agent
of such designation and appointment and the Process Agent shall accept the same
in writing within five (5) days after the date hereof. Buyer and Seller each
hereby irrevocably authorize and direct the Process Agent to accept such
service. Each party hereto agrees that a final action in any such suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other lawful manner.
13. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties hereto shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
14. Public Announcements. Except as required by Law or by the
requirements of any securities exchange on which the securities of a party
hereto are listed, no party to this Agreement shall make, or cause to be made,
any press release or public announcement in respect of this Agreement or
otherwise communicate with any
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news media without the prior written consent of the other parties, and the
parties shall cooperate as to the timing and contents of any such press release
or public announcement.
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IN WITNESS WHEREOF, the parties hereto have caused this Share
Purchase Agreement to be duly executed as of the date first written above.
SBAIF ASIA NETCOM (CAYMAN)
HOLDINGS
By ____________________________________
Name:
Title:
CHINA NETCOM CORPORATION
(HONG KONG) LIMITED
By ____________________________________
Name:
Title:
CHINA NETCOM CORPORATION
INTERNATIONAL LIMITED
By ____________________________________
Name:
Title:
ASIA NETCOM CORPORATION
LIMITED
By ____________________________________
Name:
Title:
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SHARE TRANSFER FORM
FOR VALUE RECEIVED
SBAIF ASIA NETCOM (CAYMAN) HOLDINGS (the "Transferor")
HEREBY SELL AND ASSIGN AND TRANSFER UNTO:
CHINA NETCOM CORPORATION (HONG KONG) LIMITED (the "Transferee") of
[ADDRESS]
29,400,000 Common Shares of ASIA NETCOM CORPORATION LIMITED
Dated this day of , 2003.
For Transferor:
By:_____________________________
SBAIF ASIA NETCOM (CAYMAN) HOLDINGS
For Transferee:
By:_____________________________
CHINA NETCOM CORPORATION (HONG KONG) LIMITED
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