Exhibit 10.23
EXECUTION COPY
SHARE PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
ASIA NETCOM CORPORATION LIMITED
AND
CNC NETWORK CORPORATION LIMITED
DATED AS OF
JUNE 30, 2004
Table of Contents
Page
----
ARTICLE I PURCHASE AND SALE OF SHARES........................................1
Section 1.1 Sale and Transfer of Shares.................................1
Section 1.2 The Purchase Price..........................................1
ARTICLE II THE CLOSING.......................................................1
Section 2.1 The Closing.................................................2
Section 2.2 Deliveries by Seller........................................2
Section 2.3 Deliveries by Purchaser.....................................2
Section 2.4 Deliveries by Seller and Purchaser..........................2
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER.........................2
Section 3.1 Organization................................................3
Section 3.2 Authorization; Validity of Agreement........................3
Section 3.3 Execution; Validity of Agreement............................3
Section 3.4 Consents and Approvals; No Violations.......................3
Section 3.5 No Other Representations....................................4
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER.......................4
Section 4.1 Organization................................................4
Section 4.2 Authorization; Validity of Agreement........................4
Section 4.3 Consents and Approvals; No Violations.......................4
ARTICLE V COVENANTS..........................................................5
Section 5.1 Seller Transactions.........................................5
Section 5.2 Purchaser Transactions......................................5
Section 5.3 Service and Capacity Transactions...........................6
ARTICLE VI TERMINATION.......................................................6
Section 6.1 Termination.................................................6
Section 6.2 Effect of Termination.......................................6
ARTICLE VII DEFINITIONS AND INTERPRETATION...................................7
Section 7.1 Definitions.................................................7
Section 7.2 Interpretation..............................................9
ARTICLE VIII MISCELLANEOUS..................................................10
Section 8.1 Fees and Expenses..........................................10
Section 8.2 Amendment and Modification.................................10
Section 8.3 Notices....................................................10
Section 8.4 Counterparts...............................................11
Section 8.5 Entire Agreement; No Third Party Beneficiaries.............11
Section 8.6 Severability...............................................11
Section 8.7 Governing Law..............................................11
Section 8.8 Venue......................................................11
Section 8.9 Time of Essence............................................11
Section 8.10 Further Assurances.........................................11
Section 8.11 Extension; Waiver..........................................11
Section 8.12 Assignment.................................................12
ANNEX A.....................................................................14
ANNEX B......................................................................1
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SHARE PURCHASE AND SALE AGREEMENT
Share Purchase and Sale Agreement, dated as of June 30, 2004, by and
between Asia Netcom Corporation Limited, a company organized and existing under
the laws of Bermuda ("SELLER") and CNC Network Corporation Limited, a company
organized and existing under the laws of the British Virgin Islands
("PURCHASER"). Certain capitalized terms used in this Agreement have the
meanings assigned to them in Article VII on page 7 hereof.
WHEREAS, Seller owns all of the issued and outstanding Shares of East Asia
Netcom Limited, (the "COMPANY"), a company organized and existing under the laws
of Bermuda; and
WHEREAS, each of the boards of directors of Purchaser and Seller has
approved, and deems it advisable and in the best interests of its respective
shareholders to consummate, the acquisition of the Company by Purchaser, which
acquisition is to be effected by the purchase of all the outstanding share
capital of the Company by Purchaser upon the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein,
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
Section 1.1 Sale and Transfer of Shares. Subject to the terms and
conditions of this Agreement, Seller hereby sells, conveys, assigns, transfers
and delivers to Purchaser all the issued and outstanding Shares, and Purchaser
hereby purchases all the issued and outstanding Shares from Seller, free and
clear of all Encumbrances, except for Encumbrances arising by operation of law,
and provided that such sale, conveyance, assignment, transfer and purchase shall
be made expressly subject to the EAN Charge.
Section 1.2 The Purchase Price. Subject to the terms and conditions of
this Agreement, in consideration of the aforesaid sale, conveyance, assignment,
transfer and delivery to Purchaser of the Shares, upon the execution of this
Agreement, Purchaser shall deliver to Seller a Note in the principal amount of
US$43,362,136.00, in substantially the form attached as Annex A hereto.
ARTICLE II
THE CLOSING
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Section 2.1 The Closing. The Closing of the sale and purchase of the
Shares by Seller and Purchaser shall take place as soon as practicable hereafter
at such time and place as the parties may determine.
Section 2.2 Deliveries by Seller. At the Closing, Seller shall deliver to
Purchaser:
(a) one or more certificates representing all the issued and
outstanding Shares, each such certificate to be duly and validly endorsed in
favor of Purchaser or accompanied by a separate share transfer form duly and
validly executed by Seller and otherwise sufficient to vest in Purchaser good
title to such Shares;
(b) the register of shareholders of the Company evidencing the
registration of the Shares to the name of the Purchaser on the Closing Date,
subject to the EAN Charge;
(c) all other previously undelivered documents required to be
delivered by Seller to Purchaser at or prior to the Closing in connection with
the Transactions; and
(d) such evidence as may be reasonably requested by Purchaser of the
completion of the transactions contemplated in Sections 5.1 and 5.3 hereof.
Section 2.3 Deliveries by Purchaser. At the Closing, Purchaser shall
deliver to the Seller:
(a) such other documents as are required to be delivered by Purchaser
to Seller pursuant hereto; and
(b) such evidence as may be reasonably requested by Seller of the
completion of the transactions contemplated by Sections 5.2 and 5.3 hereof.
Section 2.4 Deliveries by Seller and Purchaser.
At the Closing, Purchaser shall duly execute and deliver to Seller, DB
Trustees (Hong Kong) Limited, KDDI and NEC, and Seller shall duly execute and
deliver to Purchaser, DB Trustees (Hong Kong) Limited, KDDI and NEC, an
amendment to the EAN Share Charge in the form of a Deed of Acknowledgement and
Agreement, in substantially the form of Annex B hereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser that all of the statements
contained in this Article III are true and correct as of the date of this
Agreement (or, if made as of a specified date, as of such date).
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Section 3.1 Organization. Seller is a company duly organized, validly
existing and in good standing under the laws of Bermuda with full corporate
power and authority to conduct its business as it is now being conducted and to
own or use the properties and assets that it purports to own or use.
Section 3.2 Authorization; Validity of Agreement. Seller has full
corporate power and authority to execute and deliver this Agreement and perform
its obligations hereunder, and to consummate the Transactions. The execution,
delivery and performance by Seller of this Agreement and the consummation of the
Transactions have been duly authorized by the board of directors and
shareholders of Seller, no other corporate action on the part of Seller is
necessary to authorize the execution, delivery and performance by Seller of this
Agreement or the consummation of the Transactions.
Section 3.3 Execution; Validity of Agreement. This Agreement has been
duly executed and delivered by Seller, and, assuming due and valid
authorization, execution and delivery hereof by Purchaser, is a valid and
binding obligation of Seller, enforceable against Seller in accordance with its
terms except (a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws of
general application affecting enforcement of creditors' rights generally and (b)
the availability of the remedy of specific performance or injunctive or other
forms of equitable relief may be subject to equitable defenses and would be
subject to the discretion of the court before which any Proceeding therefor may
be brought.
Section 3.4 Consents and Approvals; No Violations. (a) Seller is not and
will not be required to obtain any consent from any Person in connection with
the execution and delivery of this Agreement, the consummation of any of the
Transactions or the performance by Seller of its obligations under this
Agreement, except for such consents as have been obtained and remain in full
force and effect.
(b) None of the execution, delivery or performance of this Agreement
by Seller, the consummation by Seller of the Transactions or compliance by
Seller with any of the provisions hereof will (i) conflict with or result in any
breach of any provision of the memorandum of association or bye-laws of Seller,
(ii) require any filing with, or permit, authorization, consent or approval of,
any Governmental Entity other than the Bermuda Monetary Authority, (iii) result
in a violation or breach of, or constitute (with or without due notice or lapse
of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, lease, license, contract, agreement or
other instrument or obligation to which Seller or any of its Subsidiaries is a
party or by which any of them or any of their respective properties or assets
may be bound, or (iv) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to Seller, any of its Subsidiaries or any of their
properties or assets, excluding from the foregoing clauses (ii), (iii) and (iv)
such violations, breaches or defaults which (A) would not, individually or in
the aggregate, have a Material Adverse Effect on Seller's ability to consummate
the Transactions or (B) would become applicable as a result of the business or
activities in which Purchaser is or proposes to be engaged or as a result of any
acts or omissions by, or the status of any facts pertaining to, Purchaser.
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Section 3.5 No Other Representations. Except for the representations
and warranties contained in this Article III, neither Seller nor any other
person or entity acting on behalf of Seller, makes any representation or
warranty, express or implied.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrant to Seller that:
Section 4.1 Organization. Purchaser is a company duly organized, validly
existing and in good standing under the laws of the British Virgin Islands, with
full corporate power and authority to conduct its business as it is now being
conducted, to own or use the properties and assets that it purports to own or
use.
Section 4.2 Authorization; Validity of Agreement. (a) Purchaser has full
corporate power and authority to execute and deliver this Agreement and perform
its obligations hereunder, and to consummate and the Transactions. The
execution, delivery and performance by Purchaser of this Agreement and the
consummation of the Transactions have been duly authorized by the board of
directors of Purchaser, and no other corporate action on the part of Purchaser
is necessary to authorize the execution and delivery by Purchaser of this
Agreement or the consummation of the Transactions. This Agreement has been duly
executed and delivered by Purchaser, and, assuming due and valid authorization,
execution and delivery hereof by Seller, is a valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms except (i)
as limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other similar laws of general application affecting
enforcement of creditors' rights generally and (ii) the availability of the
remedy of specific performance or injunctive or other forms of equitable relief
may be subject to equitable defenses and would be subject to the discretion of
the court before which any Proceeding therefor may be brought.
Section 4.3 Consents and Approvals; No Violations. (a) Purchaser is not,
and will not be required, to obtain any consent from any Person in connection
with the execution and delivery of this Agreement, the consummation of any of
the Transactions or the performance by Purchaser of its obligations under this
Agreement, except for such consents as have been obtained and remain in full
force and effect.
(b) None of the execution, delivery or performance of this Agreement
by Purchaser, the consummation by Purchaser of the Transactions or compliance by
Purchaser with any of the provisions hereof will (i) conflict with or result in
any breach of any provision of the certificate of incorporation or by-laws of
Purchaser, (ii) require any filing with, or permit, authorization, consent or
approval of, any Governmental Entity other than the Bermuda Monetary Authority,
(iii) result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation or acceleration) under, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, lease, license, contract,
agreement or other instrument
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or obligation to which Purchaser is a party or by which it or any of its
properties or assets may be bound, or (iv) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Purchaser, any of its
properties or assets, excluding from the foregoing clauses (ii), (iii) and (iv)
such violations, breaches or defaults which would not, individually or in the
aggregate, have a Material Adverse Effect on Purchaser's ability to consummate
the Transactions.
ARTICLE V
COVENANTS
Section 5.1 Seller Transactions.
Prior to or contemporaneously with the Closing, Seller shall cause the
following transactions to be completed:
(a) Seller shall cause EAN UK to transfer to ANC Singapore of all the
issued and outstanding shares of each of:
(1) Asia Netcom Services (S) Pte. Ltd.;
(2) Asia Netcom Australia Pty Ltd.; and
(3) Asia Netcom Singapore Pte Ltd.,
(collectively, the "THREE SERVICE COMPANIES") for consideration in an amount
equal to $401,000; it being understood and agreed that the transfer of the
shares of Asia Netcom Singapore Pte Ltd. shall be made expressly subject to the
ANS Charge;
(b) Seller shall cause East Asia Netcom Philippines, Inc. to transfer
to South Asia ANC Philippines Services Inc., a wholly-owned subsidiary of ANC
Singapore, all substantial operations, staff and contracts of East Asia Netcom
Philippines, Inc.; and
(c) Seller shall cause China Netcom Holdings (BVI) Limited to be
nominated as the notional beneficiary of Taiwan STAR Trust;
Section 5.2 Purchaser Transactions
Prior to or contemporaneously with the Closing, Purchaser shall cause the
following transactions to be completed:
(a) Purchaser shall cause China Netcom Corporation International
Limited to transfer OpCo and OpCo's subsidiaries, China Netcom (USA) Operations
Inc. and Asia Netcom (UK) Limited (formerly known as China Netcom (UK)
Operations Limited), to ANC Singapore; and
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(b) Purchaser shall cause Pacific Netcom (BVI) Limited and its Taiwan
Branch to be transferred to East Asia Network Holding Taiwan Inc. under the
Taiwan Trust.
Section 5.3 Service and Capacity Transactions.
Prior to or contemporaneously with the Closing, Purchaser and Seller shall
cause the following transactions to be completed:
(a) Each of Seller and the Company shall duly execute and deliver the
Management Services Agreement;
(b) Each of Seller and the Company shall duly execute and deliver the
Capacity Purchase Agreement; and
(c) Each of Seller and the Company shall duly execute and deliver the
Capacity Lease Agreement.
ARTICLE VI
TERMINATION
Section 6.1 Termination. The Transactions may be terminated or abandoned
at any time prior to the Closing Date:
(a) By the mutual written consent of Purchaser and Seller; or
(b) By Purchaser or Seller if any Governmental Entity shall have
issued an order, decree or ruling or taken any other action (which order,
decree, ruling or other action the parties hereto shall use their best
reasonable efforts to lift) which permanently restrains, enjoins or otherwise
prohibits the acquisition by Purchaser of the Shares and such order, decree,
ruling or other action shall have become final and non-appealable;
Section 6.2 Effect of Termination. In the event of the termination or
abandonment of the Transactions by any party hereto pursuant to the terms of
this Agreement, written notice thereof shall forthwith be given to the other
party or parties specifying the provision hereof pursuant to which such
termination or abandonment of the Transactions is made, and there shall be no
liability or obligation thereafter on the part of Purchaser or Seller except for
fraud or for willful breach of this Agreement prior to such termination or
abandonment of the Transactions.
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ARTICLE VII
DEFINITIONS AND INTERPRETATION
Section 7.1 Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context clearly requires otherwise:
"Affiliate" shall have the meaning set forth in Rule 12b-2 promulgated
under the Exchange Act.
"Agreement" or "this Agreement" shall mean this Share Purchase and Sale
Agreement, together with the Annexure hereto.
"ANC Singapore" shall mean Asia Netcom Corporation (Singapore) Pte. Ltd.
"ANS Charge" shall mean EAN UK's charge of the shares of Asia Netcom
Singapore Pte Ltd. pursuant to the ANS Share Charge.
"ANS Share Charge" shall mean the agreement dated May 14, 2002 entered into
between EAN UK as chargor and NEC as chargee.
"Capacity Lease Agreement" means the agreement dated June 30, 2004,
relating to the lease by Seller from the Company and its subsidiaries certain
telecommunications services and other related services, entered into between
Seller and the Company.
"Capacity Purchase Agreement" means the agreement dated June 30, 2004,
relating to the acquisition by Seller of an indefeasible right to use a certain
amount of telecommunications of capacity on the East Asia Crossing Submarine
Cable Systems, including the various terrestrial backhaul systems, entered into
between Seller and the Company.
"Closing" shall mean the closing referred to in Section 2.1.
"Closing Date" shall mean the date on which the Closing occurs.
"Company" shall mean East Asia Netcom Limited, a company organized and
existing under the laws of Bermuda.
"EAN Charge" shall mean the Seller's charge of the Shares to DB Trustees
(Hong Kong) Limited pursuant to the EAN Share Charge.
"EAN Share Charge" shall mean the agreement dated March 10, 2003 entered
into among Seller, as chargor, DB Trustees (Hong Kong) Limited, as chargee, KDDI
and NEC as beneficiaries.
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"EAN UK" shall mean East Asia Netcom UK Holdings Limited.
"Encumbrances" shall mean any and all liens, charges, security interests,
options, claims, mortgages, pledges, proxies, voting trusts or agreements,
obligations, understandings or arrangements or other restrictions on title or
transfer of any nature whatsoever.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Governmental Entity" shall mean a court, arbitral tribunal, administrative
agency or commission or other governmental or other regulatory authority or
agency.
"KDDI" shall mean KDDI Submarine Cable Systems, Inc.
"Management Services Agreement" shall mean the agreement dated June 30,
2004 relating to the roles and responsibilities of Seller and the Company and
their respective subsidiaries with regard to the continued provision of certain
services by Seller and its subsidiaries, entered into between Seller and the
Company.
"Material Adverse Effect" on a Person means a material adverse effect on
(i) the ability of such Person to observe the provisions of, and to perform its
obligations under, this Agreement; or (ii) the financial condition, business,
assets, operations, properties or prospects of such Person.
"NEC" shall mean NEC Corporation.
"Note" shall mean a promissory note in the principal amount of
US$43,362,136.00, in substantially the form attached as Annex A hereto.
"OpCo" shall mean China Netcom (Hong Kong) Operations Limited, a
corporation organized and existing under the laws of Hong Kong.
"Person" shall mean a natural person, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Entity or other entity or organization.
"Proceeding" shall mean any action, arbitration, audit, hearing,
investigation, litigation or suit (whether civil, criminal, administrative,
investigative or informal) commenced, brought, conducted or heard by or before,
or otherwise involving, any Governmental Entity or arbitrator.
"Purchase Price" shall mean the amount set forth in Section 1.2.
"Purchaser" shall mean CNC Network Corporation Limited, a company organized
and existing under the laws of the British Virgin Islands.
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"Seller" shall mean Asia Netcom Corporation Limited, a company organized
and existing under the laws of Bermuda.
"Shares" shall mean common shares, par value US$0.01, issued by the
Company.
"Taiwan STAR Trust" means the trust settled on March 7, 2003 pursuant to
Part VIII of the Trusts Law (2001 Revision) of the Cayman Islands of which
Wilmington Trust (Cayman) Ltd. is the trustee.
"Three Service Companies" shall mean, collectively, Asia Netcom Services
(S) Pte. Ltd., Asia Netcom Australia Pty Ltd., and Asia Netcom Singapore Pte
Ltd.
"Transactions" shall mean all the transactions provided for or contemplated
by this Agreement.
Section 7.2 Interpretation. (a) The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(b) When a reference is made in this Agreement to a section or
article, such reference shall be to a section or article of this Agreement
unless otherwise clearly indicated to the contrary.
(c) Whenever the words "include", "includes" or "including" are used
in this Agreement they shall be deemed to be followed by the words "without
limitation."
(d) The words "hereof", "hereto", "herein" and "herewith" and words
of similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
article, section, paragraph, exhibit and schedule references are to the
articles, sections, paragraphs, exhibits and schedules of this Agreement unless
otherwise specified.
(e) The meaning assigned to each term defined herein shall be equally
applicable to both the singular and the plural forms of such term, and words
denoting any gender shall include all genders. Where a word or phrase is defined
herein, each of its other grammatical forms shall have a corresponding meaning.
(f) A reference to any party to this Agreement or any other agreement
or document shall include such party's successors and permitted assigns.
(g) A reference to any legislation or to any provision of any
legislation shall include any amendment to, and any modification or re-enactment
thereof, any legislative provision substituted therefor and all regulations and
statutory instruments issued thereunder or pursuant thereto.
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(h) The parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Fees and Expenses. All costs and expenses incurred in
connection with this Agreement and the consummation of the Transactions shall be
paid by the party incurring such expenses, except as specifically provided to
the contrary in this Agreement.
Section 8.2 Amendment and Modification. This Agreement may be
amended, modified and supplemented in any and all respects, but only by a
written instrument signed by all of the parties hereto expressly stating that
such instrument is intended to amend, modify or supplement this Agreement.
Section 8.3 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given when mailed, delivered personally,
telecopied (which is confirmed) or sent by an overnight courier service, such as
Federal Express, to the parties at the following addresses (or at such other
address for a party as shall be specified by such party by like notice):
if to Purchaser, to:
CNC Network Corporation Limited
x/x Xxxxx Xxxxxx
00/X, Xxxx xx Xxxxx Tower
0 Xxxxxx Xxxx, Xxxxxxx
Xxxx Xxxx
Attention: Sun, Wenlong, General Counsel
Facsimile: x000 0000-0000
if to Seller, to:
Asia Netcom Corporation Limited
x/x 00/X, Xxxxxx Xxxx Center
0 Xxxxx'x Xxxx, Xxxxxxx
Xxxx Xxxx
Xxxxxxxxx: General Counsel
Facsimile: x000 0000 0000
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Section 8.4 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when two or more counterparts have been signed by
each of the parties and delivered to the other parties.
Section 8.5 Entire Agreement; No Third Party Beneficiaries. This
Agreement (a) constitute the entire agreement and supersede all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof and thereof and (b) is not intended to confer upon any
Person other than the parties hereto and thereto and the officers and directors
of Seller any rights or remedies hereunder.
Section 8.6 Severability. Any term or provision of this Agreement
that is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction. If the final judgment of a
court of competent jurisdiction or other authority declares that any term or
provision hereof is invalid, void or unenforceable, the parties agree that the
court making such determination shall have the power to reduce the scope,
duration, area or applicability of the term or provision, to delete specific
words or phrases, or to replace any invalid, void or unenforceable term or
provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or
provision.
Section 8.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the principles of conflicts of law thereof.
Section 8.8 Venue. Each of the parties hereto (a) consents to submit
itself to the personal jurisdiction of any federal court located in the State of
New York or any New York supreme court in the event any dispute arises out of
this Agreement or any of the Transactions, (b) agrees that it shall not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court and (c) agrees that it shall not bring any action
relating to this Agreement or any of the Transactions in any court other than a
federal or state court sitting in the State of New York.
Section 8.9 Time of Essence. Each of the parties hereto hereby
agrees that, with regard to all dates and time periods set forth or referred to
in this Agreement, time is of the essence.
Section 8.10 Further Assurances. The parties agree (a) to furnish
upon request to each other such further information, (b) to execute and deliver
to each other such other documents, and (c) to do such other acts and things,
all as the other party may reasonably request for the purpose of carrying out
the intent of this Agreement and the documents referred to in this Agreement.
Section 8.11 Extension; Waiver. At any time prior to the Closing
Date, either party hereto may (a) extend the time for the performance of any of
the obligations or
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other acts of the other party, (b) waive any inaccuracies in the representations
and warranties of the other party contained in this Agreement or in any document
delivered pursuant to this Agreement or (c) waive compliance by the other
parties with any of the agreements or conditions contained in this Agreement.
Any agreement on the part of a party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed by or on behalf of
such party. The failure of any party to this Agreement to assert any of its
rights under this Agreement or otherwise shall not constitute a waiver of those
rights.
Section 8.12 Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties, except that Purchaser may assign, in its
sole discretion, all (but not less than all) of its rights and interests
hereunder to any direct or indirect wholly-owned subsidiary of Purchaser.
Subject to the preceding sentence, this Agreement shall be binding upon, inure
to the benefit of and be enforceable by the parties and their respective
successors and assigns.
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IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement or
caused this Agreement to be executed by their respective officers thereunto duly
authorized as of the date first written above.
CNC Network Corporation Limited
By: ________________________________
Name:
Title:
Asia Netcom Corporation Limited
By: ________________________________
Name:
Title:
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ANNEX A
FORM OF PROMISSORY NOTE
PROMISSORY NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED. NEITHER THIS NOTE NOR ANY INTEREST THEREIN MAY BE REOFFERED OR SOLD IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE NOTE UNDER SAID ACT
OR EVIDENCE SATISFACTORY TO CNC NETWORK CORPORATION LIMITED, THAT SUCH
REGISTRATION IS NOT REQUIRED.
US$43,362,136.00 JUNE 30, 2004
FOR VALUE RECEIVED, the undersigned, CNC Network Corporation Limited, a
company organized and existing under the laws of the British Virgin Islands
("OBLIGOR"), promises to pay to Asia Netcom Corporation Limited, a company
organized and existing under the laws of Bermuda ("HOLDER"), the principal
amount of Forty-Three Million Three Hundred and Sixty-Two Thousand and One
Hundred and Thirty-Six United States Dollars (US$43,362,136.00), as hereinafter
provided. Such principal shall be payable in money of the United States of
America lawful at such time for the payment of public and private debts.
Payment. The entire principal amount of this Note shall be payable on
demand.
Interest. No interest shall be payable on any principal amount outstanding.
Method of Payment. Payment of principal hereunder shall be made by wire
transfer of next-day funds to the account of Holder specified below:
Name of Account: Asia Netcom Corporation Limited
Account Number: 01-56-00607-5
Name of Bank: Industrial and Commercial Bank of China (Asia) Ltd
Bank I.D. Number: 072
Branch code: 861
SWIFT Code: XXXXXXXX
Waivers. Obligor hereby waives presentment, diligence, protest and demand,
notice of protest, demand, dishonor and nonpayment of this Note, and all other
notices of any
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kind in connection with the delivery, acceptance, performance, default or
enforcement of this Note.
Successors. The provisions hereof shall be binding upon the legal
representatives, successors and assigns of Obligor and shall inure to the
benefit of Holder and its successors by operation of law.
Governing Law. This Note shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to the principles
of conflicts of laws thereof.
IN WITNESS WHEREOF, Obligor has executed this Note as of the day and year
first above written.
CNC Network Corporation Limited
By:_________________________________
Name:
Title:
15
ANNEX B
FORM OF DEED OF ACKNOWLEDGEMENT AND AGREEMENT
1
