EXHIBIT 4.18
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DATED 30TH NOVEMBER, 2004
ASIA SATELLITE TELECOMMUNICATIONS COMPANY LIMITED
AND
MACAU CABLE TV, LIMITED
AND
PACIFIC SATELLITE INTERNATIONAL LIMITED
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SHAREHOLDERS AGREEMENT
RELATING TO SKYWAVE TV COMPANY LIMITED
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TABLE OF CONTENTS
1. INTERPRETATION...........................................................2
2. BUSINESS OF THE COMPANY/SHAREHOLDER CONTRIBUTIONS........................3
3. CORPORATE GOVERNANCE.....................................................6
4. MAJOR ISSUES.............................................................7
5. PROMOTION OF THE COMPANY'S BUSINESS.....................................10
6. CONFIDENTIALITY.........................................................10
7. SHARE TRANSFERS.........................................................11
8. FINANCING...............................................................14
9. INITIAL PUBLIC OFFERING.................................................16
10. TERMINATION AND FIRST RIGHT OF REFUSAL..................................16
11. GENERAL.................................................................17
12. REPRESENTATIONS AND WARRANTIES..........................................19
13. ANNOUNCEMENTS...........................................................20
14. NOTICES AND MISCELLANEOUS...............................................20
15. LAW AND SETTLEMENT OF DISPUTE...........................................22
16. EXHIBIT A - DEED OF ADHERENCE
STRICTLY CONFIDENTIAL
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THIS AGREEMENT is made this 30th day of November, 2004
BETWEEN:
(1) ASIA SATELLITE TELECOMMUNICATIONS COMPANY LIMITED ("AsiaSat"), a
company incorporated in Hong Kong having a place of business at 23rd
Floor, East Exchange Tower, 00 Xxxxxxxx Xxxx, Xxxxxxxx Xxx, Xxxx Xxxx,
telephone number (000) 0000 0000, facsimile number (000) 0000 0000;
(2) MACAU CABLE TV, LIMITED ("MCTV"), a company with its principal office
at Alameda Xx. Xxxxxx X' Xxxxxxxxx N411-417, Edificio Xxxxxxx Xxxxx, 00
Xxxxx, Xxxxx, telephone number (853) 781812, facsimile number (853)
781821; and
(3) PACIFIC SATELLITE INTERNATIONAL LIMITED ("PSIL"), 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.
Each of AsiaSat, MCTV and PSIL is herein sometimes referred to as "Party", and
collectively as the "Parties" or the "Shareholders".
WHEREAS:
A. Skywave TV Company Limited (previously known as "Auspicious City
Limited") (the "Company") was incorporated in Hong Kong on 20th August,
2003, for the purpose of providing television programming and broadband
multimedia services.
B. The authorized share capital of the Company is HK$50,000,000 divided
into 5,000,000 shares of HK$10 each ("Shares") of which 3,000,000 have
been issued and are registered in the names of, and beneficially owned
by, the following persons:
AsiaSat 2,400,000 Shares
MCTV 300,000 Shares
PSIL 300,000 Shares
TOTAL 3,000,000 Shares
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C. The Shareholders desire to enter into this Shareholders Agreement (the
"Agreement") for the purpose of regulating their rights and obligations
in relation to the Company, including certain matters relating to the
contribution of each Shareholder to the Company, the transfer of
Shares, and the management and operation of the Company.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires:
"ASSOCIATE" means in relation to any person, a person controlling,
controlled by or under common control with such person. For purposes of
this Agreement, "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting
securities, by contract or otherwise;
"BOARD" means the board of directors of the Company or those Directors
present at a duly convened meeting of the Directors at which a quorum
is present;
"DIRECTOR" means a director of the Company;
"HK$" means Hong Kong dollars, the lawful currency of Hong Kong;
"HOLDING COMPANY" and "SUBSIDIARY" have the meanings respectively given
to those terms by the Companies Ordinance (Chapter 32 of the Laws of
Hong Kong);
"HONG KONG" means the Hong Kong Special Administrative Region of the
People's Republic of China";
"MONTHLY PROJECTIONS" has the meaning given in Clause 3.10(b);
"OPERATING CAPITAL" means cash available from operations, as set out in
the Monthly Projections;
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"PERSON" means any natural person, corporation, limited liability
company, partnership, firm, joint venture, association, joint stock
company, trust, unincorporated association, governmental body or other
legal entity;
"PRO RATA AMOUNT" means, with respect of any of the Shareholders
hereto, the ratio of (a) the total number of issued Shares held by a
Shareholder to (b) the total number of issued Shares held by all
Shareholders;
"RELATED PARTY TRANSACTION" means any transaction between the Company
on the one hand and any of the Parties hereto, any Director or any
Shareholder or any of his or its associates on the other hand; and
"SHAREHOLDER(S)" means holder(s) for the time being of Share(s).
1.2 In this Agreement, references to Clauses are to clauses of this
Agreement and references to a sub-clause are, unless otherwise stated,
references to a sub-clause of the Clause in which the reference
appears.
1.3 Clause headings are inserted for convenience only and shall be ignored
in construing the terms of this Agreement.
2. BUSINESS OF THE COMPANY/SHAREHOLDER CONTRIBUTIONS
2.1 (a) The business of the Company shall be the provision of
television programming and broadband multimedia services, and
to engage in such other business or activities or make such
other investments as may be approved by the Board from time to
time.
(b) The business of the Company is authorised by the Non-Domestic
Television Programme Licence (the "Licence") issued by the
Broadcasting Authority of Hong Kong ("Authority"). The Parties
agree to do all things necessary to procure that the Company
comply with the terms and conditions of the Licence.
2.2 The Parties shall comply with the provisions of this Agreement in
relation to their investment in the Company and in transacting business
with the Company and shall
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exercise their respective rights and powers in accordance with and so
as to give effect to this Agreement.
2.3 (a) AsiaSat shall make the following contributions to the Company:
Cash of [ ] for working capital and the purchase of
equipment as well as software upgrades by the Company that is
required to upgrade or to be added to the current systems of
MCTV in order to operate the business of the Company.
(b) MCTV shall make the following contributions to the Company:
(i) Services to be provided in accordance with an
Outsource Agreement between MCTV and the Company
dated 30th November 2004 for the operation of the
business of the Company at the value of [ ].
(ii) The continuous use of MCTV's licence and MCTV's
participation in the business of the Company at the
value of [ ] during the term of this Agreement.
(c) PSIL shall make the following contributions to the Company:
(i) Equipment and services to be provided in accordance
with an Outsource Agreement between PSIL and the
Company dated 30th November 2004 for the operation of
the business of the Company at the value of [ ].
(ii) Purchase and hold a safety stock of [ ] sets of
customer premises equipment at the value of [ ],
provided that if such safety stock is no longer
required as determined by the Company based on the
equipment being readily available in the market, PSIL
shall make a cash contribution of [ ] within
30 days of the Company's determination.
2.4 All intellectual property and other non-tangible property provided by
the Shareholders for use by the Company shall remain the property of
the Shareholders. All
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intellectual property and other non-tangible property developed by the
Company shall be owned by the Company. Any Shareholder providing
intellectual property for use by the Company shall, if required for the
benefit of the Company's business, execute any agreements or documents
and provide any information necessary to allow the Company to use such
intellectual property.
2.5 If a Shareholder (the "Defaulting Shareholder") fails materially to
make its respective contributions required under Clause 2.3 (including
the circumstances where such failure is due to the termination of the
relevant Outsource Agreement pursuant to its terms) and does not remedy
such failure within 30 days after being notified by the Company of such
failure, the Shareholders other than the Defaulting Shareholder (the
"Non-Defaulting Shareholders") (or if the Non-Defaulting Shareholders
fail to reach an agreement, the Non-Defaulting Shareholder who owns the
larger number of issued Shares as at such time) shall have the right to
elect (by notice in writing) either one of the following options :
(a) requiring the Defaulting Shareholder to transfer to the
Company that number of Shares equal to the quotient obtained
by dividing the value of the contribution that has not been
made by HK$10 (the "Unpaid Shares") at the total consideration
of HK$1.00. Any fraction obtained in such calculation
exceeding 0.5 shall be rounded up to one Share and any
fraction of 0.5 or less shall be rounded down by one Share.
The Defaulting Shareholder shall execute any documents
necessary including, but not limited to, instruments of
transfer and bought and sold notes to effect the transfer of
Shares to the Company; or
(b) requiring the Defaulting Shareholder to transfer to each of
the Non-Defaulting Shareholders the "Adjusted pro Rata Amount"
(with respect to such Defaulting Shareholder) of the number of
the Unpaid Shares at the total consideration of HK$1.00. Any
fraction obtained in such calculation exceeding 0.5 shall be
rounded up to one Share and any fraction of 0.5 or less shall
be rounded down by one Share. "Adjusted Pro Rata Amount" in
this paragraph means the ratio of the (i) total number of
issued Shares held by a Non-Defaulting Shareholder to (ii) the
total number of issued Shares held by all Shareholders after
deduction of the number of the Unpaid Shares. The Defaulting
Shareholder shall execute any documents necessary including,
2.6 [ ]
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but not limited to, instruments of transfer and bought and
sold notes to effect the transfer of Shares to the
Non-Defaulting Shareholders.
3. CORPORATE GOVERNANCE
3.1 Initially, AsiaSat shall nominate four Directors, MCTV and PSIL shall
each nominate one Director. The Chairman of the Board shall be elected
by the largest Shareholder of the Company, and the Chairman shall have
the casting vote.
3.2 Each Party hereto shall have the right to nominate one Director for
every 10% Shares held, and for every 10% shares held, one vote can be
cast. Therefore, if a Party holds 10% of the Shares of the Company,
such Party may nominate only one Director who has the right to cast one
vote.
3.3 Any Party hereto exercising such rights of nomination, shall give
written notice to the Company and to the other Parties together with a
copy of a written consent to act signed by each nominated Director. As
soon as reasonably practical thereafter, but in any event not later
than 14 days after such written notice is given, all Parties hereto
shall take all such action as may be necessary to cause the individual
so nominated to be appointed as a Director in accordance with the
memorandum and articles of association of the Company.
3.4 Any Party hereto exercising the right to remove any Director previously
nominated by him or them shall give written notice to the Company and
to the other Parties and shall forthwith cause such Director to deliver
to the Company a letter of resignation with immediate effect.
3.5 In the event that the percentage of the total issued Shares held by any
of the Parties hereto falls below the relevant threshold referred to in
Clause 3.2, such Party shall forthwith cause the relevant Director(s)
previously nominated by him or them to deliver to the Company letter(s)
of resignation with immediate effect.
3.6 Each Party hereto shall indemnify the other Parties and the Company in
respect of any claim (other than any claim relating to such person's
employment or for services provided to the Company) by any Director
nominated by it in respect of such Director's removal or resignation
for whatsoever reason.
3.7 The quorum for all meetings of the Board shall be any four Directors. A
quorum must be present at the beginning of and throughout each meeting.
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3.8 The Company shall allow each of the Shareholders and its authorised
representatives the right during normal business hours to inspect its
books and accounting records, to make extracts and copies therefrom at
its own expense and to have full access to all of the Company's
property and assets.
3.9 The Shareholders shall procure that the Company keep proper, complete
and accurate books of account in accordance with Hong Kong generally
accepted accounting principles and shall have its accounts audited
annually in accordance with such standards by a reputable firm of
international accountants appointed by the Board.
3.10 The Parties hereto further agree:
(a) that the financial year ended of the Company shall be 31st
December;
(b) that the Company shall provide to each Shareholder within (i)
three months after the end of each financial year, the annual
audited consolidated financial statements of the Company for
such financial year, (ii) 45 days after the end of each
quarter, quarterly unaudited consolidated financial statements
of the Company for such quarter, and (iii) 15 days after the
end of each month, (x) monthly unaudited consolidated
financial statements of the Company for such month and the
portion of the financial year through the end of such month,
including a balance sheet and statements of income and cash
flows for such month, setting forth a comparison with the
Company's operating budget and an explanation of material
differences between actual results and the budgeted amounts,
if any, and (y) projections ("Monthly Projections") for the
following 45-day period of Operating Capital and outstanding
liabilities payable during that 45-day period.
3.11 The Shareholders shall procure that the Company prepare annual
operating and capital budgets and business plans for the Company, which
shall be submitted to all Directors not less than one month prior to
the commencement of each financial year for Board approval.
4. MAJOR ISSUES
4.1 While this Agreement remains in force, the Parties shall procure that,
except as agreed by the beneficial owners of not less than [ ]
of the total issued Shares:
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(a) no material change shall be made in the business of the
Company;
(b) no change shall be made in the authorized or issued share
capital (or equivalent capital structure) of the Company
(excluding a reduction in share capital) and, without
limitation to the foregoing, no new Shares or other securities
(including any which are convertible or exchangeable for, or
carry rights of subscription for, new Shares) in the capital
of the Company, options in respect of the same or any other
rights similar or relating thereto, shall be issued or granted
to any third party;
(c) no person shall be appointed as a director of any subsidiary
of the Company or removed from such office provided that
nothing in this paragraph (e) shall prevent any such person
from resigning from such office or becoming disqualified from
serving as a director pursuant to the relevant entity's
articles of association (or equivalent);
(d) the Company shall not:
(i) acquire, whether by way of formation or otherwise,
any subsidiary nor effect or permit the disposal or
dilution of its interest, directly or indirectly, in
any subsidiary;
(ii) sell, transfer, lease, license, or in any way dispose
of, all or any part of its business, undertaking
and/or assets, whether by a single transaction or
series of transactions, related or not (such
transaction may require the transfer of Shares of any
one or all of the Parties);
(iii) acquire any share or loan capital of, or any other
interest in, any body corporate or enter into any
partnership or profit sharing arrangement with any
person;
(iv) acquire any land or any interest therein provided
that, for the avoidance of doubt, any tenancy
arrangements entered into by any such entity in
relation to premises required for business which do
not involve the payment of any premium or similar
amount shall not constitute the acquisition of land
or any interest therein;
(v) consolidate or amalgamate with any other company,
association, partnership or entity;
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(vi) borrow any sums from any of the Parties hereto or any
third party;
(vii) make any loan or advance or otherwise give credit to
any person, firm or body corporate except for the
purpose of making deposits with its bankers;
(viii) give any guarantee, bond or indemnity in respect of,
or to secure the liabilities or obligations of, any
person, firm or body corporate;
(ix) create or issue any debenture, mortgage, charge or
other security over its assets;
(x) introduce any executive or employee stock or share
option scheme of any nature;
(xi) save in accordance with rules or regulations approved
by the Board, employ, or terminate the employment of,
any senior or key employee;
(xii) change its auditors; or
(xiii) declare, make or pay dividend or other distribution
to its shareholders.
4.2 The following matters require agreement by the beneficial owners of not
less than three fourths of the total issued Shares :
(a) amendment to the memorandum or articles of association (or
equivalent constitutive documents) of the Company;
(b) reduction in the share capital of the Company;
(c) resolution for the winding up of the Company (unless it shall
have become insolvent) nor shall any of the Parties hereto
present, or cause to be presented, any petition for the
winding up of the Company.
4.3 All matters other than those set out in Clauses 4.1 and 4.2 shall be
decided by the Board by way of simple majority, but subject to relevant
laws and regulations of which may reserve to the Shareholders the power
to consider and, if thought fit, pass certain resolutions to the
exclusion of the directors.
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4.4 It is agreed by the Parties hereto that no Related Party Transaction
shall take place during the term of this Agreement except with the
prior agreement in writing of the Parties hereto.
5. PROMOTION OF THE COMPANY'S BUSINESS
5.1 Each Party hereto covenants with the other to use its best endeavours
to promote and develop the business of the Company.
5.2 Each Party hereto covenants with the other that it shall not on its own
behalf or on behalf of, or in association with, any third party or in
any capacity whatsoever, entice or seek to entice away from the Company
any director or other officer or any employee of the Company whether or
not any such person would thereby commit a breach of his or her
contract of service or employment.
5.3 The restrictions contained in Clause 5.2 shall have full effect and be
enforceable for as long as such Party is the beneficial owner of any
Shares and for the period of two years after it ceases to own any
Shares, whatever the reason for such cessation of ownership.
5.4 The restrictions contained in Clauses 5.2 and 5.3 are considered
reasonable by the Parties hereto, but, in the event that any such
restriction shall be found to be void but would be valid if some part
or parts thereof were deleted or the period or area of application
reduced, such restriction shall apply with such modification as may be
necessary to make it valid and effective.
5.5 Each Shareholder will use reasonable efforts to provide business
contacts for the Company in carrying out the Company's business.
6. CONFIDENTIALITY
6.1 Each Party hereto shall at all times, both before and after termination
of this Agreement, keep confidential any information which it may
acquire or may already have acquired prior to the date of this
Agreement in relation to the Company or its business, customers,
clients or other affairs and shall not use such information or disclose
the same to any third party except with the prior written consent of
the other Parties hereto and of the Company or in accordance with the
order of a court of competent jurisdiction, applicable rules and
regulations.
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6.2 Each Party hereto shall procure that the Company shall use all
reasonable endeavours to ensure that its Directors, officers and
employees shall observe a similar duty of confidentiality.
6.3 The obligations of the Parties contained in Clause 6.1 shall continue
without limit in point of time but shall cease to apply to any
information coming into the public domain otherwise than by breach of
any such Party of its obligations therein contained.
7. SHARE TRANSFERS
7.1 Save as provided in the remaining sub-clauses of this Clause, none of
the Parties hereto shall be entitled during the term of this Agreement
to sell, transfer, charge, pledge, encumber, grant options over or
otherwise dispose of any Shares ("Transfer") now owned or hereafter
acquired by such Party or of any beneficial interest therein.
7.2 Notwithstanding any other provision of this Agreement, no Transfer may
be made pursuant to this Clause 7 unless :
(a) the transferee has agreed in writing to be bound by the terms
and conditions of this Agreement pursuant to a Deed of
Adherence substantially in the form attached hereto as Exhibit
A;
(b) the Transfer complies in all respects with the other
applicable provisions of this Agreement; and
(c) the Transfer complies in all respects with applicable
securities laws.
If requested by the Company in its reasonable discretion, an opinion of
counsel to such transferring Shareholder shall be supplied to the
Company, at such transferring Shareholder's expense, to the effect that
such Transfer complies with applicable securities laws.
7.3 The following Transfers are permitted :
(a) any sale of common shares of the Company on the public market
in connection with or following an initial public offering and
listing of such common shares;
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(b) any Transfer by a Shareholder which is approved by the
beneficial owners of not less than [ ] of the total
issued Shares; and
(c) any Transfer required as consideration for any one of the
transactions listed in Clause 4.1(d)(ii).
7.4 If at any time any Shareholder receives a bona fide offer from a third
party (other than a proposed transfer permitted under Clause 7.3)(the
"Third Party Offeror") to buy for cash (a "Third Party Offer") any or
all of such Shareholder's Shares (the "Offered Shares") and such
Shareholder desires to accept the Third Party Offer, such Shareholder
(the "Selling Shareholder") shall, subject to the consent of the
beneficial owners of not less than two thirds of the total issued
Shares : (a) (i) make an offer (the "Right of First Refusal") to sell
the Offered Shares to each other Shareholder (the "Rightholder") and
(ii) make an offer to allow such Rightholder to participate in any sale
of the Shares included in the Offered Shares (the "Tag Along Right") to
the Third Party Offeror, in accordance with the procedures set forth
below (such Right of First Refusal and Tag Along Right shall be upon
the same terms and conditions as the Third Party Offer); or (b)
directly accept the Third Party Offer and sell to the Third Party
Offeror the Offered Shares.
7.5 If Clause 7.4(a) applies :
(a) The Selling Shareholder shall send written notice of the Right
of First Refusal and the Tag Along Right (the "Notice") to
each Rightholder, which shall state (i) the number of Offered
Shares and the proposed purchase price per Share, (ii) other
terms and conditions of the Third Party Offer and (iii) the
name of the Third Party Offeror. The Notice shall include a
copy of all writings between the Third Party Offeror and the
Selling Shareholder necessary to establish the terms of the
Third Party Offer.
(b) The Notice shall not be effective unless all of the following
conditions are met:
(i) the Third Party Offeror shall have delivered to the
Selling Shareholder a letter, signed by the Third
Party Offeror, confirming its offer to effect the
proposed transaction on the terms stated in the Third
Party Offer;
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(ii) the Third Party Offer shall not be subject to any
conditions, except that it may be conditioned upon
the truth as of the closing of the proposed purchase
of customary representations and warranties and the
delivery of a customary legal opinion;
(iii) the Third Party Offer shall propose, with respect to
the Shareholder who may exercise its Tag Along
Rights, that such Shareholder's liability for breach
of any representations and warranties made to the
Third Party Offeror shall be limited to the net
proceeds received by such Shareholder from the sale
of their Shares;
(iv) the Third Party Offer shall propose a price ("Third
Party Offer Price") payable wholly in cash; and
(v) the Third Party Offeror shall have furnished
reasonably satisfactory evidence as to such Third
Party Offeror's financial ability to consummate the
proposed purchase.
(c) Each Rightholder shall have the right :
(i) to purchase all of its respective Pro Rata Amount
(but not less than all) of the Offered Shares at a
purchase price equal to the Third Party Offer Price
and upon the terms and conditions of the Third Party
Offer;
(ii) in the event that the Rightholder does not elect to
purchase all of its respective Pro Rata Amount of the
Offered Shares, to sell, upon the terms set forth in
the Third Party Offer, that number of Shares held by
the Rightholder determined by multiplying the number
of Shares included in the Offered Shares by a
fraction, the numerator of which shall be the total
number of Shares held by the Rightholder and the
denominator of which shall be the total number of
outstanding Shares; or
(iii) to reject the Right of First Refusal and the Tag
Along Right.
(d) The rights of a Rightholder under Clause 7.5(c) shall be
exercisable by written notice to the Selling Shareholder with
a copy to the Company given within
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fifteen (15) days after receipt of the Notice (the "Notice
Period"). If the Rightholder shall fail to respond within the
Notice Period to the Selling Shareholder, such failure shall
be regarded as a rejection of both the Right of First Refusal
and the Tag Along Right.
(e) The closing of the purchase of Offered Shares elected to be
purchased by the Rightholder under Clause 7.5(c)(i) shall be
held at the principal office of the Company at 11:00 a.m.
local time on the thirtieth (30th) day after the date on which
the Notice Period shall have expired or at such other time and
place as the parties to the transaction may agree. At such
closing, the Selling Shareholder shall deliver certificates
representing the Offered Shares, duly endorsed with a
signature guarantee for transfer and accompanied by all
requisite transfer taxes, if any, and such Offered Shares
shall be free and clear of any liens, claims, charges,
options, encumbrances or rights (other than those arising
hereunder) and the Selling Shareholder shall so represent and
warrant, and further represent and warrant that it is the
beneficial and record owner of such Offered Shares. The
Shareholder purchasing Offered Shares shall deliver at the
closing payment in full in immediately available funds for the
Offered Shares purchased by it. At such closing, all of the
parties to the transaction shall execute such additional
documents as are otherwise necessary or appropriate.
(f) Unless all of the Offered Shares under Clause 7.5(c)(i) are
purchased by the Rightholder, the Selling Shareholder may sell
such portions of its Shares that can be sold under Clause
7.5(c)(ii) to the Third Party Offeror on the terms and
conditions of the Third Party Offer; PROVIDED, HOWEVER, that
such sale is bona fide and made within ninety (90) days of the
expiration of the Notice Period. If such sale is not
consummated within such 90-day period, the restrictions
provided for herein shall again become effective, and no
transfer of such Offered Shares may be made thereafter without
again offering the same to the other Shareholder in accordance
with this Agreement.
8. FINANCING
8.1 Any decision to seek additional finance for the Company shall be made
by the Board, but subject always to compliance with the provisions of
Clause 4.
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8.2 In the event that the Board resolves to issue new Shares, with the
consent of the beneficial owners of not less than [ ] of the
total issued Shares, each of the Parties hereto shall have the right to
subscribe for its Pro Rata Amount of such new Shares and shall, in
addition, have the right of over subscription for new Shares ("OVER
SUBSCRIPTION RIGHT") if the other Parties elect not to subscribe fully
for their Pro Rata Amount.
8.3 Each Party hereto shall be afforded the opportunity to subscribe for
its Pro Rata Amount of such new Shares on the same terms and at the
same price as are offered to the other Party.
8.4 Any new Shares which are not taken up by a Party who fails to exercise
its right of subscription for its Pro Rata Amount of such new Shares or
who, having exercised such right, fails to complete such subscription
shall first be offered to each other Party who exercise its Over
Subscription Right within the Issuance Notice Period (as defined in
Clause 8.5) PRO RATA to the number of additional new Shares which such
Party has agreed to take up above its Pro Rata Amount. Thereafter, the
Company shall have the right to sell and issue all remaining new Shares
pursuant to Clause 8.6.
8.5 Prior to issuing any new Shares, the Board shall give to each of the
Parties written notice (the "ISSUANCE NOTICE") setting out the price
and terms upon which the Company proposes to issue the same, the number
of new Shares for which each Party is entitled to subscribe and a
statement that each Party shall have 14 days from the date of receipt,
or deemed receipt, of the Issuance Notice ("ISSUANCE NOTICE PERIOD") to
accept its Pro Rata Amount of the new Shares and to exercise his Over
Subscription Right by:
(a) giving written notice to the Company;
(b) forwarding payment for its Pro Rata Amount of the new Shares
to the Company; and
(c) if the Over Subscription Right is exercised, forwarding
payment for the additional new Shares for which it agrees to
subscribe.
8.6 In the event that any Party hereto fails to exercise its right of
subscription within the Issuance Notice Period, and subject to each
other Party's Over Subscription Right, the Company shall have 60 days
thereafter to enter into an agreement with a third party to sell the
new Shares in respect of which the rights of the Parties hereto were
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not exercised, at a price and upon terms no more favourable to such
third party than those specified in the Issuance Notice. In the event
that no such agreement is entered into within such 60 day period, the
Company (as the Parties hereto shall procure) shall not thereafter
issue any new Shares without first offering the same to the Parties
hereto in the manner provided in this Clause 8.
8.7 It is agreed that the provisions of Clauses 8.1 to 8.6 shall not apply
to any issue of new Shares (a) pursuant to (i) an initial public
offering made by the Company (or any new holding company); or (ii) the
exercise of any options granted to directors, officers or employees of
the Company in accordance with any share option scheme approved by the
Board subject to Clause 4.1; or (b) if the beneficial owners of not
less than two thirds of the total issued Shares agree that Clauses 8.1
to 8.6 shall not apply.
9. INITIAL PUBLIC OFFERING
9.1 The Parties hereto agree that the Company (or any new holding company)
may seek a listing of its shares either on The Stock Exchange of Hong
Kong Limited (Main Board or Growth Enterprise Market), or on such other
stock exchange as the beneficial owners of not less than two thirds of
the total issued Shares may decide, as soon as the Company together
with any subsidiaries at such time meets the financial, business and
other requirements of the relevant listing rules (or equivalent
regulations).
9.2 For the purpose of seeking such listing, the Parties hereto agree that
the Board shall have full authority, acting for and on behalf of the
Company, to take such steps as are necessary including, without
limitation, the appointment of a sponsor, underwriters, receiving
bankers, share registrar, reporting accountants, valuers and
solicitors. Each Party hereto covenants with the other to use its best
endeavours to assist the Board with such application for listing
including, without limitation, surrendering any interest in any
subsidiary of the Company for an interest of equal value in the Company
(or any new holding company) on such terms and conditions as the Board
may reasonably require.
10. TERMINATION AND FIRST RIGHT OF REFUSAL
10.1 This Agreement shall continue in full force and effect until terminated
in accordance with this Clause 10.
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10.2 This Agreement shall terminate automatically:
(a) in relation to any Party who ceases to be the beneficial owner
of any Shares provided that the provisions of Clause 5.2 shall
continue to apply to each Party in accordance with the
provisions of Clause 5.3; or
(b) if any stock exchange anywhere in the world grants a listing
of shares in the capital of the Company (or any new holding
company); or
(c) if an effective resolution is passed to wind up the Company or
if a liquidator is otherwise appointed (except for the purpose
of a bona fide reconstruction or amalgamation of the Company
with the consent of the Parties hereto, such consent not to be
unreasonably withheld) or if a receiver or manager is
appointed over any part of the assets or undertaking of the
Company; or
(d) at any time by written agreement of the Parties hereto; or
(e) on such date as one of the Parties hereto or one Shareholder
becomes beneficially interested in all the issued Shares.
10.3 Termination of this Agreement either in its entirety or in relation to
the out going Party only shall be without prejudice to Clause 6 and any
rights which any Party may have against each other Party hereto which
arose prior to such termination.
10.4 [ ]
11. GENERAL
11.1 This Agreement shall be binding upon the Parties hereto and their
successors and permitted assigns provided that none of the Parties
hereto shall be entitled to assign its rights or benefits under this
Agreement or purport to transfer any of its duties or obligations
hereunder except with the prior consent of the other Parties.
11.2 In the event of any inconsistency between the provisions of this
Agreement and the memorandum and articles of association of the Company
("M&A"), the former shall prevail and the Parties hereto shall
cooperate with a view to taking all necessary action to make any
appropriate amendments to the M&A to reflect the provisions of this
Agreement. Nothing in this Agreement shall be deemed to constitute an
amendment of the M&A.
11.3 Each Party hereto shall exercise or refrain from exercising any voting
rights or other powers of control so as to ensure the passing of any
and every resolution necessary or desirable to procure that the affairs
of the Company are conducted in accordance with
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the provisions of this Agreement and otherwise to give full effect to
the provisions of this Agreement and likewise to ensure that no
resolution is passed which does not accord with such provisions.
11.4 No exercise or failure to exercise or delay in exercising any rights,
power of remedy vested in any Party hereto under or pursuant to this
Agreement shall constitute a waiver by that Party of that or any other
right, power or remedy.
11.5 Nothing in this Agreement shall be deemed to constitute a partnership
between the Parties hereto nor constitute any Party the agent of the
other Parties or otherwise entitle any Party to have authority to bind
the other Parties hereto for any purpose whatsoever.
11.6 This Agreement constitutes the entire Agreement between the Parties
hereto in relation to the subject matter hereof and supersedes all
prior agreements and understandings whether oral or written with
respect thereto and no variation of this Agreement shall be effective
unless reduced to writing and signed by each of the Parties hereto.
11.7 This AgrEement may be executed in any number of counterparts or
duplicates each of which shall be an original but such counterparts or
duplicates shall together constitute one and the same Agreement.
11.8 Time shall be of the essence for the purposes of any provision of this
Agreement.
11.9 The Parties hereto agree that any right of action which the Company may
have in respect of any alleged breach of any obligation owed to the
Company shall be prosecuted by the Directors appointed by the Party or
Parties which is or are not, or whose associate is not, alleged to be
responsible for the breach. Those Directors shall have full authority
on behalf of the Company to negotiate, litigate and settle any claims
arising out of the alleged breach or exercise any right arising out of
the alleged breach and the Parties shall take all steps within their
power to give effect to the provisions of this Clause 11.9.
11.10 The rights and remedies contained in this Agreement are cumulative and
not exclusive of any rights or remedies provided by law.
11.11 The Company shall bear all of the fees and expenses incurred by it and
the Shareholders in connection with the setting up of the Company, the
preparation,
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execution and performance of this Agreement and the transactions
contemplated thereby, including, without limitation, all fees and
expenses of agents, representatives, counsel and accountants.
12. REPRESENTATIONS AND WARRANTIES
12.1 Each Party represents and warrants, severally and not jointly, to the
other Party as follows :
(a) it beneficially owns the number of Shares listed opposite its
name in recital (B) of this Agreement and that it has not
pledged, hypothecated or granted any security interest of any
kind in such Shares to any person;
(b) it has not granted to any person any right to purchase or
otherwise acquire any interest in such Shares; and
(c) it owns such Shares free and clear of any liens, claims,
options, charges, encumbrances or third party rights.
12.2 Each Party further represents and warrants that :
(a) it is duly organised, validly existing and in good standing
under the laws of the jurisdiction of its organisation, and
has all requisite corporate power and lawful authority to
effectuate the transactions contemplated herein;
(b) it has all requisite power and authority to enter into,
execute and deliver the Agreement, and to incur and perform
fully its obligations provided for therein, including (without
limitation) the contribution to the Company of any
intellectual property or other assets or services to be
contributed by such Party thereunder;
(c) the execution, delivery and performance of the Agreement by
such Party, and the consummation of the transactions
contemplated therein will not (a) violate any provision of
such Party's articles of incorporation (or other instrument of
formation) or by-laws or violate any law, rule, regulation or
other requirement of any governmental body applicable to such
Party;
(d) there are no material legal actions, suits, judgments,
proceedings, investigations, claims or disputes pending or, to
such Party's knowledge,
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threatened, at law, in equity, in arbitration or before any
governmental body against or affecting such Party; and
(e) there is no fact or circumstance known to such Party which has
not been disclosed to the other Party in writing which
materially adversely affects, or, insofar as such Party can
reasonably foresee, is expected to materially adversely affect
such Party or the ability of the Party to perform its
obligations under the Agreement or any other document or
transaction contemplated thereby.
13. ANNOUNCEMENTS
13.1 Each Party hereto undertakes to the other Parties that it will not make
any announcement in connection with this Agreement unless the other
Parties hereto shall have given their consent to such announcement.
14. NOTICES AND MISCELLANEOUS
14.1 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
(1) if delivered in person or by messenger, when proof of delivery is
obtained by the delivering Party; (2) 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; (3) if given by
fax, upon dispatch and the receipt of a transmission report confirming
dispatch.
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
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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 No.: (853) 781821
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 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
14.2 No waiver of any provision of this Agreement shall be effective unless
set forth in a written instrument signed by the Party waiving such
provision. No failure or delay by a Party in exercising any right,
power or remedy under this Agreement shall operate as a waiver thereof,
nor shall any single or partial exercise of the same preclude any
further exercise thereof or the exercise of any other right, power or
remedy. Without limiting the foregoing, no waiver by a Party of any
breach by any other Party of any provision hereof shall be deemed to be
a waiver of any subsequent breach of that or any other provision
hereof.
14.3 Each and every obligation under this Agreement shall be treated as a
separate obligation and shall be severally enforceable as such and in
the event of any
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obligation or obligations being or becoming unenforceable in whole or
in part. To the extent that any provision or provisions of this
Agreement are unenforceable they shall be deemed to be deleted from
this Agreement, and any such deletion shall not affect the
enforceability of this Agreement as remain not so deleted.
14.4 This Agreement may be executed in one or more counterparts including
counterparts transmitted by telecopier or facsimile, each of which
shall be deemed an original, but all of which signed and taken
together, shall constitute one document.
14.5 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 Party.
15. LAW AND SETTLEMENT OF DISPUTE
15.1 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.
15.2 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.
15.3 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 three arbitrators. Each
Shareholder shall select one 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
Shareholders shall not be limited in their selection to any prescribed
list. If any arbitrator to be appointed by the Shareholders has not
been appointed and consented to participate
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within 30 days after the selection of the first arbitrator, the
relevant appointment shall be made by the Chairman of the Arbitration
Center.
15.4 The arbitration proceedings shall be conducted in English.
15.5 The arbitrators shall decide any such dispute or claim strictly in
accordance with the governing law specified in Clause 15.1. 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.
15.6 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.
15.7 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
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
favor of which an award of the arbitration tribunal was given.
15.8 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 14. 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.
15.9 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.
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15.10 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 hereto the day and year first above written
ASIA SATELLITE TELECOMMUNICATIONS COMPANY LIMITED
/s/ Xxxxx Xxxxxxx
----------------------------------
Authorized Representative:
Name: Mr. Xxxxx Xxxxxxx
Title: Chief Executive Officer
Date: 30th November, 2004
MACAU CABLE TV, LIMITED
/s/ Xxxxxxx X.Xxxxx Xxxxxx
----------------------------------
Authorized Representative:
Name: Xx. Xxxxxxx X.Xxxxx Xxxxxx
Title: Executive Managing Director
Date: 30th November, 2004
MACAU CABLE TV, LIMITED
/s/ Xxxxxx Xxxxxx
----------------------------------
Authorized Representative:
Name: Xx. Xxxxxx Xxxxxx
Title: Director
Date: 30th November, 2004
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PACIFIC SATELLITE INTERNATIONAL LIMITED
/s/ Xxxxxx Xxxxx
----------------------------------
Authorized Representative:
Name: Xx. Xxxxxx Xxxxx
Title: Director
Date: 30th November, 2004
ACKNOWLEDGED BY
SKYWAVE TV COMPANY LIMITED
/s/ Xxxxxxx Xxxx
----------------------------------
Authorized Representative:
Name: Xx. Xxxxxxx Xxxx
Title: Director
Date: 30th November, 2004
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EXHIBIT A
DEED OF ADHERENCE
THIS DEED OF ADHERENCE is made the day of
BETWEEN :
(1) Skywave TV Company Limited, a company incorporated in Hong Kong (the
"Company"); and
(2) [Name of New Shareholder] (the "New Shareholder").
WHEREAS :
(A) On 30th November 2004, the Company and its Shareholders entered into a
Shareholders' Agreement (the "Shareholders' Agreement") to which a form
of this Deed is attached as Exhibit A.
(B) The New Shareholder wishes to [be allotted/have transferred to
him/her/it][ ] shares (the "Shares") in the capital of the Company
from [ ] (the "Old Shareholder") and in accordance
with the Shareholders' Agreement has agreed to enter into this Deed.
(C) The Company enters this Deed on behalf of itself and as agent for all
the existing Shareholders of the Company.
NOW THIS DEED WITNESSES as follows :
1. INTERPRETATION
In this Deed, except as the context may otherwise require, all words
and expressions defined in the Shareholders' Agreement shall have the
same meanings when used herein.
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2. COVENANT
The New Shareholder hereby covenants to the Company as trustee for all
other Persons who are at present or who may hereafter become bound by
the Shareholders' Agreement, and to the Company itself to adhere to and
be bound by all the duties, burdens and obligations of a Shareholder
holding the same class of shares as the Shares imposed pursuant to the
provisions of the Shareholders' Agreement and all documents expressed
in writing to be supplemental or ancillary thereto as if the New
Shareholder had been an original party to the Shareholders' Agreement.
3. ENFORCEABILITY
Each existing Shareholder and the Company shall be entitled to enforce
the Shareholders' Agreement against the New Shareholder, and the New
Shareholder shall be entitled to all rights and benefits of the Old
Shareholder (other than those that are non-assignable) under the
Shareholders' Agreement in each case as if the New Shareholder had been
an original party to the Shareholders' Agreement.
4. GOVERNING LAW
This Deed of Adherence shall be governed by and construed in accordance
with the laws of the Hong Kong Special Administrative Region.
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IN WITNESS WHEREOF this Deed of Adherence has been executed as a deed on the
date first above written.
Skywave TV Company Limited
By:
----------------------------
Name: [ ]
Title: [ ]
[Name of New Shareholder]
By:
----------------------------
Name: [ ]
Title: [ ]
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