EX-4.1
3
u00157exv4w1.htm
EX-4.1 SHARES SALE AND PURCHASE AGREEMENT BETWEEN TROZENIN MANAGEMENT PLC (MALAYSIA), PT SIGMA CITRA HARMONI AND PT MULTIMEDIA NUSANTARA DATED AS OF DECEMBER 18, 2007.
Exhibit 4.1
DATED 18 December 2007
PT Sigma Citra Harmoni
and
Trozenin Management Plc
as
THE VENDORS
PT Multimedia Nusantara
as THE PURCHASER
AGREEMENT FOR THE
SALE AND PURCHASE OF SHARES
CONTENTS
SCHEDULE 1 Details of the Company
SCHEDULE 2 The Subsidiaries
SCHEDULE 3 The Properties
SCHEDULE 4 Warranties
SCHEDULE 5 Disclosure Letter
SCHEDULE 6 Software
SCHEDULE 7 Key Individuals
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AGREEMENT FOR THE SALE AND PURCHASE OF SHARES
THIS
AGREEMENT is made on 18 December 2007
BETWEEN:
| (1) | | PT Sigma Citra Harmoni, a company incorporated under Indonesian law whose
registered office is at Sigma Inno Office, Menara DEA, 8th Floor, Kawasan Mega
Kuningan, Jalan Mega Kuningan Barat IX, Kavling E4.3 Xx. 0, Xxxxxxx 00000, in this
matter represented by Xx. Xxxx Xxxx Sugiri, its President
Director (“SCH”). |
| |
| (2) | | Trozenin Management Plc, a company incorporated under Malaysian law whose
principal place of business is at Tiara Labuan, Jalan Tanjung Ratu 87000, FT
Labuan, East Malaysia, in this matter represented by Mr. Eko X.X. Xxxxxxx, its proxy
(“Trozenin”). |
| |
| | | SCH and Trozenin shall individually be referred to as a “Vendor” and collectively the
“Vendors”. |
| |
| (3) | | PT Multimedia Nusantara, company incorporated under Indonesian law whose
registered office is at Century Tower, 11th Floor, Xx. X.X. Xxxxxx Xxxx, Xxx.
X-0, Xx.
0, Xxxxxxx 00000, in this matter represented by Xxxx X. Xxxxxx, its President Director
(the “Purchaser”). |
RECITALS:
| (A) | | The Vendors are the registered holders and owners of 48,800,983 shares
representing 90.79% of the total issued shares in the capital of PT
Sigma Cipta Caraka (the “Company”). Particulars of the Company are set out in Schedule 1. |
| |
| (B) | | The Vendors wish to sell and the Purchaser wishes to purchase 43,001,348 shares
representing 80% of the total issued shares in the capital of the
Company (the “Sale Shares”) on the terms and conditions set out in this Agreement. |
THE PARTIES AGREE as follows:
| 1. | | DEFINITIONS AND INTERPRETATION |
| |
| 1.1 | | In this Agreement, including the Recitals, except to the extent that the context otherwise
requires, the following words and expressions shall have the following meanings: |
| |
| | | “Accounting Date” means 31 March 2007; |
| |
| | | “Accounts” means the audited consolidated financial statements of the Company and of each
of the Subsidiaries for the accounting period which ended on the Accounting Date (each
such financial statement comprising a balance sheet, statement of income, statement of
changes in equity, statement of cash flows, notes and directors’ and auditors’ report) and
the consolidated statements of income and |
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| | | consolidated balance sheet of the Company and the Subsidiaries as at and for the period
ending on the Accounting Date as audited by Purwantono, Sarwoko & Sandjaja (a member of
Ernst & Young Global); |
| |
| | | “Agreed US$-Rp Exchange Rate” means the conversion rate based on the US$-Rp middle rate
issued by Bank Indonesia on the day being five (5) Business Days before the Completion
Date; |
| |
| | | “Authorisation” includes any consent, registration, filing, agreement, notarisation,
certificate, licence, approval, permit, authority or exemption from, by or with a
Governmental Agency; |
| |
| | | “BKPM” means the Capital Investment Coordinating Board (Badan Koordinasi Penanaman Modal); |
| |
| | | “Business Day” means any day, other than a Saturday or a Sunday, on which banks are open
for business in Jakarta; |
| |
| | | “Commissioners” means the persons listed as commissioners of the Company in Schedule 1; |
| |
| | | “Company” means PT Sigma Cipta Caraka details of which are set out in Schedule 1; |
| |
| | | “Company Law” means the Law of the Republic of Indonesia No. 40 of 2007 on Limited
Liability Companies; |
| |
| | | “Completion” means completion of the sale and purchase of the Sale Shares as specified in
Clause 5; |
| |
| | | “Completion Date” means the date being five (5) Business Days after the Conditions have
been satisfied or waived in accordance with Clause 4 (or such later date as the Parties
may agree in writing); |
| |
| | | “Conditions” means the conditions specified in Clause 4.1; |
| |
| | | “Directors” means the persons listed as directors of the Company in Schedule 1; |
| |
| | | “Disclosure Letter” means the disclosure letter from the Vendors to the Purchaser as set
out in Schedule 5; |
| |
| | | “Employee Waivers” means waivers, in a form and substance satisfactory to the Purchaser,
from each of the Specified Employees waiving all demands, rights to and entitlements under
the Labor Law and regulations, any company regulations or any collective labor agreement
with the Company which may arise as a result of the consummation of the transactions
contemplated by this Agreement; |
| |
| | | “Encumbrance” means any mortgage, charge (fixed or floating), pledge, lien, Option, right
to acquire, assignment by way of security or trust arrangement for the purpose of
providing security or other security interest of any kind (including any retention
arrangement), right of pre-emption, any third party rights, or any agreement to create any
of the foregoing; |
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| | | “Governmental Agency” includes any government, BKPM and any minister, department, office,
commission, delegate, instrumentality, agency, board, authority or other organ of government,
whether statutory or otherwise; |
| |
| | | “Group” means the group of companies comprising the Company and its Subsidiaries. The expression
“member of the Group” shall be construed accordingly; |
| |
| | | “IFC” means International Finance Corporation, the holder of 4,950,701 shares representing 9.21%
of the total issued shares in the capital of the Company; |
| |
| | | “Indonesia” means the Republic of Indonesia; |
| |
| | | “Intellectual Property” means includes patents, knowhow, trade secrets, copyrightable work and
other confidential information, registered designs, copyrights, design rights, topography rights,
trade marks, service marks, business names, registrations of and applications to register any of
the aforesaid items, rights in the nature of any of the aforesaid items in any country, rights in
the nature of unfair competition rights and rights to xxx for passing off; |
| |
| | | “IPO” means the Initial Public Offering of the shares of the Company on the Indonesia Stock
Exchange; |
| |
| | | “Jamsostek” means the employees’ social security scheme as governed by Law Xx. 0 xx 0000 xxxxxxxxx
xxx Xxxxxxx Xxxxxx Xxxxxx Xxxxx; |
| |
| | | “Key Individuals” means the individuals whose names are mentioned in Schedule 7; |
| |
| | | “Labor Law” means Law No. 13 of 2003 on Labor; |
| |
| | | “Leases” means all the leases, sub-leases, tenancy agreements, sub-tenancy agreements, licences or
other documents (including any options for extension relating thereto) granted or agreed to be
granted to any member of the Group] or pursuant to which any member of the Group holds or occupies
any property, details of which are set out in Schedule 3; |
| |
| | | “Leased Properties” means the properties short particulars of which are set out in Part 2 of
Schedule 3; |
| |
| | | “Management Accounts” means the unaudited consolidated balance sheet of the Company and the
Subsidiaries as at 30 November 2007 and the unaudited consolidated profit and loss account of the
Company and of each of the Subsidiaries for the period commencing from the day immediately
following the Accounting Date and ending on 30 November 2007 copies of which are annexed to the
Disclosure Letter; |
| |
| | | “MOLHR” means the Ministry of Law and Human Rights of the Republic of Indonesia; |
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“Moral Rights” means the rights of an author of a copyright literary, dramatic, musical or artistic
work or other intellectual works or a director of a copyright film (“Work”) to be identified as the
author or director (as the case may be) of the Work, not to have the Work subjected to derogatory
treatment and not to have a Work falsely attributed to him as the author or director (as the case
may be), and rights in the nature of the aforesaid rights in any country;
“Non Compete Agreement” means the agreement setting out the restrictions applicable to each of the
Key Individuals containing the terms and conditions the same as those provided under Clause 6 of
this Agreement;
“Option” means with respect to any person, any option, warrant or other security or contract that
gives the holder the right to purchase or otherwise receive or be issued any shares of capital
stock of such person or any security of any kind convertible into or exchangeable or exercisable
for any shares of capital stock of such person;
“Owned Properties” means the properties, short particulars of which are set out in Part 1 of
Schedule 3;
“Parties” means the named parties to this Agreement;
“Post Completion Agreement” has the meaning as ascribed to it in Clause 4.1 (m);
“Properties” means the Owned Properties and the Leased Properties;
“Purchase Price” means the total Purchase Price for the Sale Shares being the aggregate of the
sums specified in Clause 3;
“Put Option Agreement” means Put Option Agreement dated 27 April 2001 made by and between the
Company, PT Sigma Citra Harmoni, Caatoosee A.G and IFC;
“Put Option Price” means the higher of (i) the value of the Company as determined by an
independent appraisal agreed by SCH and the Purchaser or (ii) the price determined by using the
following formula:
å Shares x 100% x Purchase Price per share x (1 +l)^t
where:
å
Shares = the Put Option Shares;
l = Reference Interest Rate, defined as the average historical Rupiah Indonesian
government bond yield maturing in 1 year, as stated in Bloomberg terminal (page CURV 132)
for the period t.
The Reference Interest Rate will be fixed at the end of business day Jakarta time at the
Exercise Date;
t = time in years between the Completion Date and Exercise Date; and
Exercise Date= the date of exercise of the put option.
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“Restricted Business” has the meaning as ascribed to it in Clause 6.1(a);
“Sale Shares” means the 43,001,348 shares representing 80% of the total issued shares in the
capital of the Company;
“Shareholders” means the existing shareholders of the Company;
“Shareholders Agreement” means the Amended and Restated Shareholders Agreement of the
Company dated 27 April 2001 including its amendment, alteration, and addendum made by and
between PT Sigma Citra Harmoni, PT Sigma Ratana Harmoni, Trozenin Management Plc, Caatoosee
AG IFC and the Company.
“Specified Employees” means the Directors, Commissioners and certain employees of the
Company holding Levels 1, 2 and 3 positions as further identified and agreed by the
Parties;
“Subsidiaries” means the subsidiaries of the Company which are listed in Schedule 2;
“Tax” includes all forms of taxation, estate duties, deductions, withholdings, duties,
imposts, levies, fees, charges, social security contributions and rates imposed, levied,
collected, withheld or assessed by any local, municipal, regional, urban, governmental,
state, federal or other body in Indonesia or elsewhere and any interest, additional
taxation, penalty, surcharge or fine in connection therewith;
“Tax Restitution Payment” means the actual amount of tax restitution that any member of the
Group receives from the tax office in relation to the objection(s) or appeal(s) that the
relevant company has on the date of this Agreement submitted to the tax office or tax
court;
“Vendors’ Accounts” means a US$ denominated bank account and a Rupiah denominated bank
account designated by Trozenin and SCH respectively and informed in writing to the
Purchaser at the latest five (5) Business Days prior to Completion;
“Warranties” means the representations, warranties and undertakings contained or referred
to in Clause 7 and Schedule 4;
“Rp.” Means Indonesian Rupiah;
“US$” means United States Dollars.
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| 1.2 | | Any references, express or implied, to statutes or statutory provisions shall be
construed as references to those statutes or provisions as respectively amended or
re-enacted or as their application is modified from time to time by other provisions
(whether before or after the date hereof) and shall include any statutes or provisions
of which they are re-enactments (whether with or without modification) and any
orders, regulations, instruments or other subordinate legislation under the relevant
statute or statutory provision. References to Sections of consolidating legislation
shall, wherever necessary or appropriate in the context, be construed as including
references to the Sections of the previous legislation from which the consolidating
legislation has been prepared. |
| |
| 1.3 | | References in this Agreement to Clauses and Schedules are to clauses in and
schedules to this Agreement (unless the context otherwise requires). The Recitals
and Schedules to this Agreement shall be deemed to form part of this Agreement. |
| |
| 1.4 | | Headings are inserted for convenience only and shall not affect the construction of
this Agreement. |
| |
| 1.5 | | The expression “the Vendors” includes their respective personal representatives
and the expression “the Purchaser” includes its successors and assigns. |
| |
| 1.6 | | References to “persons” shall include bodies corporate, unincorporated
associations and partnerships (whether or not having separate legal personality). |
| |
| 1.7 | | References to writing shall include any methods of reproducing words in a legible
and non-transitory form. |
| |
| 1.8 | | The masculine gender shall include the feminine and neuter and the singular
number shall include the plural and vice versa. |
| |
| 1.9 | | All warranties, representations, indemnities, covenants, agreements and obligations
given or entered into by more than one person are given or entered
into jointly and severally. |
| |
| 1.10 | | A document expressed to be “in the approved terms” means a document the terms
of which have been approved by or on behalf of the Parties and a copy of which
has been signed for the purposes of identification by or on behalf of those Parties or
will need to be approved by the Parties prior to Completion. |
| 2. | | SALE OF SALE SHARES |
| |
| 2.1 | | This Agreement and the Parties’ rights and obligations set out under this Agreement is
conditional upon each Party (i) obtaining its relevant corporate approvals for it to enter
into this Agreement and perform its obligations hereunder and (ii) providing copies of such
corporate approvals to the other Party. |
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| 2.2 | | Subject to the terms of this Agreement, each of the Vendors shall sell a certain
number of their shares set opposite their names below or any other number of shares
agreed by the Parties provided that the total number of shares sold is 43,001,348
constituting 80% of the total issued and paid up shares of the Company and the
Purchaser shall purchase such shares, free from any Encumbrances and together with all
rights now or hereafter attaching to them, including all rights to any dividend or
other distribution declared, made or paid after the date of this Agreement (for the
avoidance of doubt, including any dividend or other distribution declared out of the
Company’s profits made in the fiscal years prior to that ended on the Accounting Date). |
| | | | | | | | | |
| Name | | Shares | | Percentage |
| PT Sigma Citra Harmoni
| | | 15,457,855 | | | | 28.758 | % |
| Trozenin Management Plc
| | | 27,543,493 | | | | 51.242 | % |
| TOTAL
| | | 43,001,348 | | | | 80.000 | % |
| 3. | | PURCHASE PRICE |
| |
| 3.1 | | The total purchase price payable for the Sale Shares (and all rights and title to and
interest in the Sale Shares) shall be US$35,200,000 (thirty five million two
hundred thousand United States Dollars). Payment to Trozenin shall be made in
U5$. Payment to SCH shall be made in Rupiah at the Agreed US$-Rp Exchange
Rate. |
| |
| 3.2 | | The Purchase Price shall be payable upon the fulfilment of all conditions as
stipulated in Clause 4 and Clause 5. |
| |
| 3.3 | | Each Party shall be liable for their respective tax obligations pursuant to the
prevailing tax regulations. The Purchaser is entitled to withhold a portion of the
Purchase Price (in accordance to the applicable tax rate) otherwise payable to
Trozenin and shall remit the withheld amount to the relevant Indonesian tax
office. |
| 4. | | CONDITIONS AND PRE-COMPLETION MATTERS |
| |
| 4.1 | | The sale and purchase of the Sale Shares is conditional upon: |
| | (a) | | the Warranties remaining true and accurate and not misleading at
Completion as if repeated at Completion and at all times between the date of this Agreement and Completion; |
| |
| | (b) | | the shareholders of the Company have convened a general meeting of shareholders or executed a circular shareholders resolution which approves
(i) the transfer of the Sale Shares from the Vendors to the Purchaser, (ii) the
amendment to the Company’s Articles of Association which, to the extent
possible, reflects the positions agreed in the Post Completion Agreement
and (iii) the changes to the composition of the Company’s Board of
Directors and Board of Commissioners, as evidenced by minutes of
meeting of the Company shareholders or a signed circular shareholders
resolution in the form and substance satisfactory to the Purchaser; |
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| | (c) | | each of the Vendors having complied fully with the obligations specified in
Clauses 11.1 and 11.2 and otherwise having performed in all material
respects all of the covenants and agreements required to be performed by it
under this Agreement; |
| |
| | (d) | | approvals from BKPM in relation to (i) the transfer of Sale Shares from the
Vendors to the Purchaser, (ii) changes to the composition of the Company’s
Board of Directors and Board of Commissioners, in the form and substance
satisfactory to the Purchaser and (iii) conversion of the Company into a non
PMA/PMDN company; |
| |
| | (e) | | an approval from and/or and receipt of report by the MOLHR in relation to
the amendment to the Company’s Articles of Association as evidenced by
an approval letter and/or a letter acknowledging receipt of the report issued
by the MOLHR; |
| |
| | (f) | | a written consent from PT Orix Indonesia Finance as the lessor pursuant to
the lease agreements (i) No. E0511J2454 dated 7 December 2005 as
amended by Agreement No. ORIF/OLD/SK/315/IX/2005 undated, (ii) No.
E0509J2359 dated 27 September 2005 as amended by Addendum
Agreement No. ORIF/OLD/SK/077/IX/2005 undated, (iii) No.
E0602J2526 dated 22 February 2006 as amended by Additional
Agreement dated 22 February 2006, and any other similar agreements
between the Company and PT Orix Indonesia Finance, in respect of the
change of the controlling shareholder in the Company due to the transfer of
Sale Shares from the Vendors to the Purchaser; |
| |
| | (g) | | a written consent from Bank Ekonomi Raharja in respect of the change of
the controlling shareholder in the Company due to the transfer of Sale
Shares from the Vendors to the Purchaser; |
| |
| | (h) | | an express consent from the Company for the Purchaser to make an announcement in a newspaper
in respect of the proposed transfer of Sale Shares from the Vendors to the Purchaser in
accordance with Article 127 of the Company Law and complete settlement of any objections
filed by any creditors to the Company in the form and substance satisfactory to the
Purchaser; |
| |
| | (i) | | announcements to the employees of the Company and the Purchaser in accordance with Article
127 of the Company Law; |
| |
| | (j) | | a written consent from PT Bank HS 1906, in accordance with the License Agreement of ATM
Management System No. 579.5.HS1906 dated 2 September 2004, in respect of the change of the
controlling shareholder in the Company due to the transfer of Sale Shares from the Vendors to
the Purchaser; |
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| | (k) | | a written notification from the Company to PT Bank Bumiputera Indonesia Tbk, in
accordance with the Infinium Human Resources Utilization Service Agreement No. 033.14.BBPI
dated 1 August 2001 (as amended), in respect of the change of the controlling shareholder
in the Company due to the transfer of Sale Shares from the Vendors to the Purchaser; |
| |
| | (I) | | if required pursuant to applicable law or the Articles of Association (or similar document)
of each of the Vendors, the Vendors shall have delivered to the Purchaser a duly executed
copy of any relevant corporate resolutions of each of the Vendors approving the sale and
purchase of the Sale Shares to the Purchaser; |
| |
| | (m) | | the Parties agreeing the final form of an agreement to be entered into by the Parties at the
Completion (the “Post Completion Agreement”) in respect of the following: |
| | (i) | | Each of the Purchaser and SCH shall make its reasonable endeavour to
support the Company in achieving the IPO in 24 months as of the Completion Date,
subject to the market conditions and absence of any unfavourable externalities. |
| |
| | (ii) | | A minority shareholder holding no less than 20% of the total issued shares
in the Company shall have the right to nominate one (1) Director in the Company’s
Board of Directors and one (1) Commissioner in the Company’s Board of Commissioners. |
| |
| | (iii) | | SCH shall have the right to require (by serving a notice to) the
Purchaser (or its designee) to purchase all (but not some) of SCH’s shares in the
Company (the “Put Option Shares”) at the Put Option Price, such right exercisable
during a period commencing from the date being 24 month after the Completion Date
until the IPO (if it occurs later). For the avoidance of doubt, if the IPO occurs
within 24 month after the Completion Date, SCH shall have no such put option right.
Subject to the obtainment of the relevant third parties’ (including Governmental
Agency’s) consents, the sale and purchase of the Put Option Shares shall be
completed within ninety (90) days after receipt by the Purchaser of the notice from
SCH. |
| |
| | (iv) | | SCH shall have a proportional tag-along right in respect of any sale by
the Purchaser of any of its shares in the Company to a third party prior to the IPO. |
| |
| | (v) | | Until the Company has reached the IPO, each of SCH and the Purchaser shall
have the right of first refusal in the event of any sale of shares in the Company
that the other Party holds. |
| |
| | (vi) | | The Post Completion Agreement shall terminate and cease to have any effect
once the Company has reached the IPO. |
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| | (n) | | the Purchaser shall have received a legal opinion dated the Completion Date
from Trozenin’s Malaysian legal counsel (which shall be a reputable firm) in regard
to valid existence, due execution and due authorisation in the form and substance
satisfactory to the Purchaser; and |
| |
| | (o) | | no statute, regulation or decision which would prohibit, restrict or
materially delay the sale and purchase of the Sale Shares or the operation of any
member of the Group after Completion having been proposed, enacted or taken by any
Governmental Agency. |
| 4.2 | | The Purchaser may waive all or any of such conditions at any time by notice in
writing to the Vendors. |
| |
| 4.3 | | The Vendors shall use their best endeavours to procure the fulfilment of the
Conditions which relate to and are directly or indirectly within the control of the
Vendors on or before the date specified in Clause 4.4. |
| |
| 4.4 | | In the event that any of the Conditions is not fulfilled (or waived
pursuant to Clause 4.2) on or prior to 30 June 2008 then the Purchaser shall not be bound to proceed
with the purchase of the Sale Shares and this Agreement shall cease to be of any
effect except Clauses 1, 10, 12, 13, 14.1 to 14.5, 15 and 16 which shall remain in
force and save in respect of claims arising out of any antecedent breach of this
Agreement. |
| |
| 4.5 | | The Vendors shall use its best efforts to obtain or to procure that the Company
obtains by five (5) Business Days prior to the Completion Date: |
| | (a) | | duly signed Non Compete Agreements; and |
| |
| | (b) | | duly signed Employee Waivers. For the avoidance of doubt, in the event
that any Specified Employee ceases to be employed by the Company
prior to Completion, that shall not be a failure to satisfy any conditions
hereunder. |
| 5.1 | | Subject to the provisions of Clause 4, Completion shall take place on the
Completion Date at the offices of the Company when all (but not some only) of the
events described in this Clause 5 shall occur. |
| |
| 5.2 | | At Completion, contemporaneously with instruction by the Purchase to its bank to
commence the wire transfer of the full amount of the Purchase Price to the
Vendors’ Accounts as stated in Clause 5.4, the Parties shall execute (i) the Deeds
Transfer of Shares in the approved terms in Indonesian language in notarial
deeds by which ownership and title to the Sale Shares are transferred from the
Vendors to the Purchaser and (ii) the Post Completion Agreement. |
| |
| 5.3 | | Concurrently with the execution of the Deeds of Transfer of Shares, the Vendors
shall: |
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| | (a) | | deliver to the Purchaser: |
| | (i) | | share certificates for the Sale Shares and/or other
evidence of ownership of the Sale Shares; |
| |
| | (ii) | | share certificates for the shares in the Subsidiaries
held by the Company and/or such other evidence of ownership by the Company
of such shares; |
| |
| | (iii) | | such waivers or consents as the Purchaser may require to
enable the Purchaser or its nominees to be registered as holders of any of
the Sale Shares |
| |
| | (iv) | | the title deeds, Leases and all other relevant deeds,
documents and correspondence relating to the Properties; |
| | (b) | | cause a meeting of the Shareholders to be held or a circular shareholders
resolution to be executed at which the Shareholders shall pass resolutions
in the approved terms (inter alia) to:- |
| | (i) | | approve the transfer of the Sale Shares and the
registration of the Purchaser as a shareholder of the Company in the
Company’s shareholders registry book and shall cause and procure the Board
of Director of the Company to register the Purchaser as shareholder in such
shareholders registry book; |
| |
| | (ii) | | cause such persons as the Purchaser may nominate to be
validly appointed as commissioners and directors of the Company; |
| |
| | (iii) | | change the Company’s and each of the Subsidiaries’ fiscal
year to become that ending on 31 December. |
| 5.4 | | At the date of Completion, the Purchaser shall pay the Purchase Price by wire
transfer to Vendors’ Accounts whose receipt in good funds in such account shall be
an absolute discharge of the Purchaser’s obligation to pay the Purchase Price and
the Purchaser shall not be concerned to see to the distribution of the moneys so
paid. |
| |
| 5.5 | | Without prejudice to any other remedies available to the Purchaser, if in any
respect the provisions of Clause 5 are not complied with by any of the Vendors on
the Completion Date the Purchaser may: |
| | (a) | | defer Completion to a date not more than 28 days after the Completion
Date (and so that the provisions of this Clause 5.4 shall apply to
Completion as so deferred); or |
| |
| | (b) | | proceed to Completion so far as practicable (without prejudice to its rights
under this Agreement); or |
| |
| | (c) | | rescind this Agreement. |
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| 6. | | RESTRICTION ON VENDORS |
| 6.1 | | Each of the Vendors undertakes with the Purchaser that, except with the consent in
writing of the Purchaser and subject to the provisions of Clause 6.3: |
| | (a) | | (i) for the period of three years after Completion or (ii) from the
Completion
to one year after the IPO (whichever is the earlier), it will not within
Indonesia either on its own account or in conjunction with or on behalf of
any person, firm or company carry on or be engaged, concerned or
interested, directly or indirectly, in carrying on any business carried on by
any member of the Group (the “Restricted Business”) (other than as a
holder of not more than 5 per cent of the issued shares or debentures of
any company listed on a recognised stock exchange); |
| |
| | (b) | | (i) for the period of three years after Completion or (ii) from the
Completion
to one year after the IPO (whichever is the earlier), it will not either on its
own account or in conjunction with or on behalf of any other person, firm
or company solicit or entice away from any member of the Group the
custom of any person, firm, company or organisation who shall at any time
have been a customer, identified prospective customer, representative,
agent, or correspondent of any member of the Group or in the habit of
dealing with any member of the Group or enter into any contract for sale
and purchase or accept business from any such person, firm, company or
organisation in the Restricted Business; |
| |
| | (c) | | (i) for the period of three years after Completion or (ii) from the
Completion
to one year after the IPO (whichever is the earlier), it will not either on its
own account or in conjunction with or on behalf of any other person, firm
or company employ, solicit, entice away or attempt to employ, solicit or
entice away from any member of the Group any person who at the date of
this Agreement is or within the year preceding such employment,
solicitation, enticement or attempt shall have been an officer, manager,
consultant or employee of any member of the Group whether or not such
person would commit a breach of contract by reason of leaving such
employment; |
| |
| | (d) | | it will not at any time hereafter make use of or disclose or divulge to any
person (other than to officers or employees of the Company or any of the
Subsidiaries who is required to know the same) any information (other than
any information properly available to the public or disclosed or divulged
pursuant to an order of a court of competent jurisdiction) relating to any
member of the Group, the identity of its customers and suppliers, its
products, finance, contractual arrangements, business or methods of
business and shall use its best endeavours to prevent the publication or
disclosure of any such information; |
12
| | (e) | | if, in connection with the business or affairs of any member of the Group, it
shall have obtained trade secrets or other confidential information
belonging to any third party under an agreement purporting to bind any
member of the Group which contained restrictions on disclosure it will not
without the previous written consent of the Purchaser at any time infringe
or take any action which would or might result in an infringement of such
restrictions; |
| |
| | (f) | | it will not at any time hereafter in relation to any trade, business or
company use a name or trade xxxx including the word or symbol or logo
of “Sigma” and shall use its best endeavours to procure that no such name
or trade xxxx shall be used by any firm or company which he controls. |
| 6.2 | | Each of the Vendors will procure that its subsidiaries, holding company and any
other affiliated companies will observe the restrictions contained in the foregoing
provisions of this Clause 6 and will make reasonable endeavour to ensure that its
and their respective employees will observe the restrictions contained in Clause
6.1(d). |
| |
| 6.3 | | While the restrictions contained in this Clause are considered by the parties to be
reasonable in all the circumstances, it is recognised that restrictions of the nature in
question may fail for technical reasons. Accordingly it is agreed that if any of such
restrictions shall be adjudged to be void as going beyond what is reasonable in all
the circumstances for the protection of the interests of the Purchaser but would be
valid if part of its wording were deleted or the stipulated periods reduced or the
range of activities or area dealt with thereby reduced in scope the said restriction
shall apply with such modifications as may be necessary to make it valid and
effective. |
| |
| 6.4 | | The restrictions contained in Clauses 6.1 and 6.2 above shall be without prejudice
to performance by and shall not limit the restrictions on the Commissioners and the
Directors in their performance for the Company. |
| 7.1 | | Each of the Vendors jointly and severally represents, warrants and undertakes to
and with the Purchaser that each of the statements set out in Schedule 4 is now and
will at Completion be true and accurate. |
| |
| 7.2 | | The Warranties (other than Warranties 4.1, 4.2, 4.3, the entire 15 and the entire 16
in respect of which no qualification is accepted) are given subject to matters fully
and fairly disclosed in the Disclosure Letter. |
| |
| 7.3 | | Each of the Vendors acknowledges that the Purchaser has entered into this
Agreement in reliance upon the Warranties and has been induced by them to enter
into this Agreement. |
| |
| 7.4 | | Without restricting the rights of the Purchaser or otherwise affecting the ability of
the Purchaser to claim damages on any other basis available to it, in the event that
(i) any of the Warranties is broken or (as the case may be) proves to be untrue or
misleading, and/or (ii) any breach by any of the Vendors of any of their respective |
13
| | | agreements, obligations or covenants under this Agreement, the Vendors shall, on demand,
pay to the Purchaser or, at the Purchaser’s direction, the Company: |
| | (a) | | the amount necessary to put the Company and each of the Subsidiaries into
the position which would have existed if the Warranties had not been
broken or (as the case may be) had been true and not misleading; and |
| |
| | (b) | | all losses, costs and expenses incurred by the Purchaser, the Company and
each member of the Group in connection with or as a result of such breach
and any costs (including reasonable legal costs), expenses which any of
them may incur either before or after the commencement of any action in
connection with (i) any legal proceedings in which the Purchaser claims
that any of the Warranties has been broken or is untrue or misleading and
in which judgement is given for the Purchaser or (ii) the enforcement of
any settlement of, or judgement in respect of, such claim. |
| 7.5 | | Each of the Warranties shall be separate and independent and, save as expressly
provided to the contrary, shall not be limited by reference to or inference from any
other Warranty or any other term of this Agreement, nor by anything in the
Disclosure Letter which is not expressly referenced to the Warranty concerned. |
| |
| 7.6 | | Where any statement in the Warranties or any confirmation or certificate given by
any of the Vendors hereunder or pursuant hereto is qualified by the expression “so
far as the Vendors are aware” or “to the best of the
Vendor’s knowledge and belief” or any similar expression, that statement shall be deemed to include an additional
statement that it has been made after due and careful enquiry. |
| |
| 7.7 | | Each of the Vendors agrees with the Purchaser (for itself and on behalf of the
Company and each of the Subsidiaries) to waive any rights which it may have in
respect of any gross misrepresentation or gross inaccuracy in, or gross omission
from, any information or advice supplied or given by the Company or its
Subsidiaries or its or their officers, employees or advisers in connection with the
giving of the Warranties and the preparation of the Disclosure Letter. |
| |
| 7.8 | | Each of the Vendors agrees to disclose promptly to the Purchaser in writing
immediately upon becoming aware of the same, any matter, event or circumstance
(including any omission to act) which may arise or become known to it after the
date of this Agreement and before Completion which: |
| | (a) | | constitutes a material breach of or is materially inconsistent with any of
the Warranties; or |
| |
| | (b) | | has an adverse effect on the financial position or prospects of the Company
or any Subsidiary. |
| 7.9 | | The Vendors shall give to the Purchaser both before and after Completion all such
reasonable information and documentation relating to the Company and the
Subsidiaries as the Purchaser shall reasonably require to enable it to satisfy itself as
to the accuracy and due observance of the Warranties. |
14
| 7.10 | | The liabilities of the Vendors under the Warranties:- |
| | (a) | | shall save in relation to paragraphs 4.1, 4.2, 4.3, the entire Section 15
and
the entire Section 16 of Schedule 4 (the “Enduring Warranties”), cease after
(i) one (1) year following the IPO or (ii) three (3) years following the
Completion Date (whichever is the earlier) except in respect of matters
which have been the subject of a written claim made before such date by
the Purchaser to any of the Vendors; |
| |
| | (b) | | shall in relation to the Enduring Warranties cease after five (5) years as
of
the Completion Date except in respect of matters which have been the
subject of a written claim made before such date by the Purchaser to any
of the Vendors; |
| |
| | (c) | | shall be limited to a maximum aggregate amount equal to the total
Purchase Price; |
PROVIDED ALWAYS that if in any case the relevant claim or claims has arisen by reason of:
| | (i) | | fraud or wilful concealment or dishonesty or deliberate non disclosure on
the part of any of the Vendors or on the part of any officer or representative of any
member of the Group or of the Vendors; or |
| |
| | (ii) | | the Vendors, the Company or any Subsidiary not having good title to any
asset (including any shares or stock of any company) of which it is now warranted to
be the owner; or |
| |
| | (iii) | | any of the Vendors or any signatory on their respective behalf’s being
claimed not to have had legal authority or capacity to enter into this Agreement or
any agreement ancillary thereto; |
then in any such case none of the limitations whether as to amount or time set forth in
this Clause 7.10 shall apply.
| 7.11 | | No claims for breach of warranties under this Agreement shall be made against
the Vendors unless the losses relating thereto for which they would, but for this
Clause 7.11, be liable exceeds five hundred United States Dollars (US$500,000)
or its equivalent Rupiah amount based on the prevailing middle rate issued by
Bank Indonesia on the day the claim is made, provided that the claim in each
event exceeds this threshold, the entire amount of such losses shall become due
and payable. |
| |
| 7.12 | | The amount that the Purchaser shall be entitled to recover from the Vendors
under a qualified claim for breach of warranties (save for the Enduring
Warranties) shall be deducted by the Tax Restitution Payment that the Company
has received before or on the date when the claim is made by the Purchaser. For
the avoidance of doubt, no such deduction shall be made in respect of any
claims by the Purchaser for any breach of the Enduring Warranties. In the event
that the Tax Restitution Payment is received by the Company after a claim by the
Purchaser to the Vendors is paid by the Vendors, the Purchaser shall refund to |
15
| | | the Vendors an amount equal to the Tax Restitution Payment so received by the Company
provided that such refund shall not exceed the claim payment previously received by the
Purchaser from the Vendors. |
| |
| 7.13 | | SCH covenants and agrees with the Purchaser that it will, upon requested by the Purchaser at
any time following the Completion, vote affirmatively in a general shareholders meeting of the
Company, provide a written consent or cause the adoption of circular shareholders resolution
in respect of change of the Company’s fiscal year to become that ending 31 December. |
| 8. | | COVENANT IN RESPECT OF TAX |
| |
| 8.1 | | In this Clause unless the context otherwise requires: |
| | (a) | | “event” includes (without limitation) any omission, event, action or
transaction whether or not the Company or any of the Subsidiaries is a
party thereto, the death of any person, a change in the residence of any
person for any Tax purpose, a failure to make sufficient dividend payments
to avoid an apportionment or deemed distribution of income and the
entering into and completion of this Agreement and references to the result
of events on or before the Completion Date shall include the combined
result of two or more events one or more of which shall have taken place
on or before the Completion Date; |
| |
| | (b) | | “relief” includes (without limitation) any relief, allowance, credit, set
off, deduction or exemption for any Tax purpose; |
| |
| | (c) | | reference to income or profits or gains earned, accrued or received shall
include income or profits or gains deemed to have been or treated as or
regarded as earned, accrued or received in accordance with the Indonesian
Accounting Standard (PSAK); |
| |
| | (d) | | reference to any Tax liability shall include not only any liability to make
actual payments of or in respect of Tax but shall also include: |
| | (i) | | the loss or reduction in the amount of, or the setting off
against income, profits or gains, or against any Tax liability for which no
sufficient provision has been made in preparing the Accounts of, any relief
which would (were it not for the said loss, reduction or setting off) have
been available to the Company or any of the Subsidiaries and which relief
has been taken into account in computing (and so eliminating or reducing)
any provision for deferred Tax which appears (or which but for such relief
would have appeared) in the Accounts; |
| |
| | (ii) | | the loss or reduction in the amount of, or the setting off
against any Tax liability for which no sufficient provision has been made in
preparing the Accounts of, a right to repayment of Tax which has been
treated as an asset of the Company or any of the Subsidiaries in preparing
the Accounts; and |
16
| | (iii) | | the loss or reduction in the amount of, or the setting off against
income, profits or gains earned, accrued or received on or before
Completion, or against any Tax liability of, any relief which is not
available before Completion but which arises in respect of an event
occurring after Completion in circumstances where, but for such loss,
reduction or setting off, the Company or any of the Subsidiaries would
have had a Tax liability in respect of which the Purchaser would have
been able to make a claim under this Clause 8; |
| | | | and in such a case the amount of Tax which could otherwise be saved or relieved,
by the relief so lost, reduced or set off (calculated by reference to the rates
of Tax in force at the date of this Agreement) or the amount of repayment which
would otherwise have been obtained shall be treated as the amount of a Tax
liability which has arisen; |
| |
| | (e) | | reference to the “Company” includes a reference to each of the
Subsidiaries; |
| |
| | (f) | | reference to a payment in respect of Tax includes (without limitation) a
payment for the surrender or transfer of any other relief, a repayment of any
such payment and a payment by way of reimbursement, recharge,
indemnity or damages. |
| 8.2 | | Subject as hereinafter provided, each of the Vendors covenants with and
undertakes to pay to the Company, within seven days after the Vendors have been
notified by the Purchaser, a sum equal to the amount of: |
| | (a) | | any Tax liability resulting from the ordinary course of business of the
Company or any of the Subsidiaries resulting from or by reference to any
income, profits or gains earned, accrued or received on or before the
Completion Date or any event on or before the Completion Date whether
alone or in conjunction with other circumstances and whether or not such
Tax is chargeable against or attributable to any other person; and |
| |
| | (b) | | all reasonable costs and expenses which are incurred by the Purchaser or
any member of the Group in connection with any of the matters referred to
in this Clause 8 or in taking or defending any action under the covenants
contained in this Clause 8 (including, without prejudice to the generality of
the foregoing, all legal and other professional fees and disbursements). |
| 8.3 | | The covenants contained in Clause 8.2 do not apply to any liability: |
| | (a) | | to the extent that provision or reserve for such amount has been made in
the Accounts or to the extent that payment or discharge of such liability
has been taken into account therein; and |
| |
| | (b) | | in respect of which provision or reserve has been made in the Accounts
which is insufficient only by reason of any increase in rates of Tax made
after the Completion Date with retroactive effect. |
17
| 8.4 | | If the Purchaser shall become aware of any assessment, notice, demand or other
document issued or action taken by or on behalf of any person, authority or body
from which it appears that the Company or any of the Subsidiaries has or may have
a liability in respect of which a claim could be made under this Clause, it shall give
written notice thereof to the Vendors and shall (if the Vendors shall indemnify and
secure the Purchaser and the Company and the Subsidiaries as applicable to the
Purchaser’s reasonable satisfaction against any liabilities, costs, damages or
expenses which may be incurred thereby) take such action and procure that the
Company and/or the relevant Subsidiary shall take such action as the Vendors may
reasonably request to dispute, resist or compromise the liability; provided that
neither the Company and/or the relevant Subsidiary nor the Purchaser shall in any
event be required to take any steps which would require any admission of guilt or
liability relating to matters connected with the claim in question or which would
affect the future conduct of the business of the Purchaser or the Company or any of
the Subsidiaries or any subsidiaries of the Purchaser or affect the rights or
reputations of any of them. |
| |
| 8.5 | | The liability of the Vendors under this Clause shall cease after (i) one (1) year
following the IPO or (ii) three (3) years following the Completion Date (whichever
is the earlier) except in respect of matters which have been the subject of a written
claim made within the said period by the Purchaser to any of the Vendors unless
the claim in question has arisen by reason of fraud, wilful concealment or
dishonesty on the part of any of the Vendors or, prior to the Completion Date, any
member of the Croup or any of its officers or deliberate non disclosure on the part
of any of the Vendors or, prior to the Completion Date, by any officer or
representative of any member of the Group in which event there shall be no
contractual limit on the time period within which such claim may be brought. |
| |
| 8.6 | | The due date for the making of payments by the Vendors under this Clause 8 shall
be:- |
| | (a) | | where the payment relates to a liability of the Company or any of the
Subsidiaries to make an actual payment of or in respect of Tax, the date
which is seven days before the date on which such actual payment is due
to be made to the relevant authority; |
| |
| | (b) | | where the payment relates to a matter falling within Clause 8.1(d)(i) or
8.1(d)(iii), the date falling seven days after the Vendors have been notified
by the Purchaser that the auditors for the time being of the Company or the
relevant Subsidiary have certified at the request of the Purchaser or the
Company or the relevant Subsidiary that the Vendors have a liability for a
determinable amount under Clause 8.2; and |
| |
| | (c) | | where the payment relates to a matter falling within Clause 8.1(d)(ii) the
date on which the repayment of Tax would otherwise have been due to be
made; and |
| |
| | (d) | | in the case of costs and expenses within Clause 8.2(b) the date on which
such costs and expenses are incurred. |
18
| 8.7 | | The Vendors shall give all such assistance and provide such information as the
Purchaser shall reasonably request from time to time for the purpose of enabling the
Purchaser or any member of the Group to make returns and provide information as required
to any Tax authority and to negotiate any liability to Tax. |
| 9. | | THE PURCHASER’S REMEDIES |
| 9.1 | | The Purchaser shall be entitled (without prejudice to all other rights and
remedies available to it) to terminate this Agreement if at any time on or before
Completion (a) any of the Vendors fails to comply with any of its material
obligations in this Agreement or (b) the Purchaser becomes aware of any fact,
matter or event which in its reasonable opinion constitutes a material breach of
any Warranty. |
| |
| 9.2 | | Without prejudice to Clause 9.1, the Purchaser shall be entitled to claim all
losses, damages, payments, awards, costs or expenses suffered or made by the
Purchaser as a result of any material breach of any representation, statement,
assurance, covenant, undertaking, indemnity, guarantee or commitment given
by or on behalf of the Vendors in connection with this Agreement other than the
Warranties. |
| 10. | | RESTRICTION ON ANNOUNCEMENTS |
| |
| | | Each of the Parties undertakes that prior to Completion it will not (save as required by
Article 127 of Company Law or any prevailing law or by any securities exchange or any
supervisory or regulatory body to whose rules any of the Parties is subject) make any
announcement in connection with this Agreement unless the other Parties shall have given
their respective consents to such announcement (which consents may not be unreasonably
withheld or delayed and may be given either generally or in a specific case or cases and
may be subject to conditions). |
| 11. | | PRE-COMPLETION OBLIGATIONS |
| 11.1 | | The Vendors shall procure that the business of each member of the Group is operated until
Completion in the ordinary course and in the same manner as it was operated prior to the date
of this Agreement and that without a prior written consent from the Purchaser, no member of
the Group: |
| | (a) | | makes or commits to any capital expenditure for more than Rp. 2 billion
or for longer than 12 months except those made for Surabaya Data
Center amounting to no more than Rp. 15 billion; |
| |
| | (b) | | acquires, disposes of, or creates a security interest over any of its assets
other than in the ordinary course of business consistent with past practice, but in any case not to exceed Rp. 2 billion ; |
19
| | (c) | | distributes or return any capital to its shareholders or undertakes any
merger, consolidation, acquisition, recapitalization, liquidation or
dissolution; |
| |
| | (d) | | pays any dividend to its shareholders or pays any management fee, or
other distribution; |
| |
| | (e) | | issues any shares, Options or securities which are
convertible into shares; |
| |
| | (f) | | materially changes the terms of employment (including remuneration
and/or any benefit plan) of any of the employees, or pays or provides any
bonus (in cash or in kind) to any employee; |
| |
| | (g) | | alters its Articles of Association, provided that the Company may make
any alterations to its Articles of Association that are necessary to
complete the transactions contemplated by this Agreement; |
| |
| | (h) | | makes any material changes to the accounting procedures or principles by reference to which
the Accounts are drawn up; |
| |
| | (i) | | and/or the Vendors pass any shareholder resolutions in general meeting or by way of written
resolution of shareholders of any member of the Group, provided that the shareholders of the
Company may pass resolutions that are necessary to complete the transactions contemplated by
this Agreement; |
| |
| | (j) | | discontinues or ceases to operate all or a material part of their respective business; |
| |
| | (k) | | incurs any liabilities or borrows (other than by bank overdraft, bank guarantee or similar
facility within limits subsisting at the date of this Agreement) any money for more than Rp.
3 billion or agrees so to do; |
| |
| | (l) | | discloses to any third party any confidential information relating to any member of the
Group including but not limited to the identity of its customers and suppliers, its products,
finance, contractual arrangements, business or methods of business; |
| |
| | (m) | | enters into, amends or terminates any contract or commitment (other than those which are
immaterial or specifically referred to in this Agreement to be entered into, amended or
terminated) which relates to or affects a material part of the business or any materially
unusual or abnormal or onerous contract or commitment; |
| |
| | (n) | | writes off or writes down any of its assets other than in the ordinary course of business,
consistent with past practice; |
20
| | (o) | | files any amended Tax return, makes any material Tax election, settle any Tax
claim or Tax assessment, consent to any extension or waiver of the limitation
period applicable to any Tax claim or Tax assessment, or take any other similar
action relating to the filing of any Tax return or the payment of any Tax, if such
amendment, agreement, settlement, consent or other action would have the effect of
increasing its tax liability for any period ending after Completion; |
| |
| | (p) | | engages in any transaction outside the ordinary course of business
consistent with past practice or not on arm’s length basis with the Vendors or any
officer, director or commissioner or affiliates of the Vendors; and |
| |
| | (q) | | enters into any contract or other agreement to do or engage in any of the
foregoing. |
| 11.2 | | The Vendors shall not solicit, initiate or encourage the submission of any proposal to
acquire the Sale Shares or any rights pertaining to the Sale Shares (the “Acquisition
Proposal”), enter into any agreement with respect to any Acquisition Proposal, or cooperate
in any way with, or knowingly assist, participate in, facilitate or encourage any effort by
any person that is seeking to make, or has made, an Acquisition Proposal. |
| |
| 11.3. | | As from the date of this Agreement, the Vendors shall give and shall procure that the
Purchaser and/or any persons authorised by it will for the purpose of satisfying itself as to
the accuracy of the Warranties be given such access during normal office hours to the
premises and all books, title deeds, records and accounts of the Company and the Subsidiaries
as the Purchaser may reasonably request and be permitted to take copies of any such books,
deeds, records and accounts and that the Commissioners, Directors and employees of the
Company and the Subsidiaries shall be instructed to give within reasonable time all such
information and explanations to any such persons as aforesaid as may be requested by it or
them, provided that before making such request, the Purchaser or any person appointed by it
shall provide the Vendors with a written request outlining the intention to inspect the
Company, the issues or matters which needs to be clarified, and the documents or information
which are required for that purpose. |
| |
| 11.4 | | The Purchaser undertakes that it will not prior to Completion, save as required by law (or
by any securities exchange or any supervisory or regulatory body to whose rules it is
subject), divulge any confidential information relating to the Company and the Subsidiaries
obtained by it pursuant to this Clause to any person other than its own officers, employees
or professional advisers. |
| 12. | | CONFIDENTIALITY OF INFORMATION RECEIVED |
| 12.1 | | Each of the Parties undertakes that it shall treat as strictly confidential all information
received or obtained by it or its employees, agents or advisers as a result of entering into
or performing this Agreement including information relating to the provisions of this
Agreement, the negotiations leading up to this Agreement, the subject matter of this
Agreement or the business or affairs of the other Parties |
21
| | | and subject to the provisions of Clause 12.2 that it not at any time hereafter make use of
or disclose or divulge to any person any such information and shall use its best
endeavours to prevent the publication or disclosure of any such information. |
| |
| 12.2 | | The restrictions contained in Clause 12.1 shall not apply so as to prevent a Party from
making any disclosure required by law or by any securities exchange or supervisory or
regulatory or governmental body pursuant to rules to which the relevant Party is subject or
from making any disclosure to any professional adviser for the purposes of obtaining advice
(provided always that the provisions of this Clause 12 shall apply to and the Parties shall
procure that they apply to and are observed in relation to, the use or disclosure by such
professional adviser of the information provided to him) nor shall the restrictions apply in
respect of any information which comes into the public domain otherwise than by a breach of
this Clause 12 by the Party. |
| 13. | | COSTS |
| |
| 13.1 | | Each Party to this Agreement shall pay its own costs of and incidental to this Agreement and
the sale and purchase envisaged under this Agreement. |
| 14. | | GENERAL |
| |
| 14.1 | | This Agreement shall be binding upon and endure for the benefit of the estates,
personal representatives or successors of the Parties. |
| |
| 14.2 | | This Agreement (together with any documents referred to herein) constitutes the
whole agreement between the Parties and supersedes any previous agreements or
arrangements between them relating to the subject matter of this Agreement; it is
expressly declared that no variations of this Agreement shall be effective unless
made in writing signed by duly authorised representatives of the Parties. |
| |
| 14.3 | | Subject always to the provisions providing time limit specifically stated in this
Agreement and applicable statute of limitations, all of the provisions of this
Agreement shall remain in full force and effect notwithstanding Completion (except
insofar as they set out obligations which have been fully performed at Completion). |
| |
| 14.4 | | If any provision or part of a provision of this Agreement shall be, or be found by
any authority or court of competent jurisdiction to be, invalid or unenforceable,
such invalidity or unenforceability shall not affect the other provisions or parts of
such provisions of this Agreement, all of which shall remain in full force and effect. |
| |
| 14.5 | | If any liability of one or more but not all of the Vendors shall be or become illegal,
invalid or unenforceable in any respect, such circumstance shall not affect or
impair the liabilities of the other Vendors under this Agreement. |
| |
| 14.6 | | The Purchaser may release or compromise the liability of any of the Vendors
hereunder or grant to any Vendor time or other indulgence without
affecting the liability of any other Vendor hereunder. |
22
| 14.7 | | No failure of the Purchaser to exercise, and no delay or forbearance in exercising,
any right or remedy in respect of any provision of this Agreement shall operate as a
waiver of such right or remedy. |
| |
| 14.8 | | This Agreement may be executed in one or more counterparts, and by the Parties
on separate counterparts, but shall not be effective until each party has executed at
least one counterpart and each such counterpart shall constitute an original of this
Agreement but all the counterparts shall together constitute one and the same
instrument. |
| 15. | | NOTICES |
| |
| 15.1 | | Each notice, demand or other communication given or made under this Agreement
shall be in writing 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
five (5) days’ prior written notice specified to the other parties): |
| |
| | | To the Vendors: |
| |
| | | PT Sigma Citra Harmoni
Sigma Inno Office
Menara DEA, 8th
Floor
Kawasan Mega Kuningan
Jalan
Mega Kuningan Barat IX
Kavling E4.3
Xx. 0
Xxxxxxx 00000 |
| |
| | | Attention: President Director
Fax Number: + 62 21 5762155 |
| |
| | | Trozenin Management Plc
Tiara Labuan
Jalan Tanjung Ratu 87000
FT Labuan, East Malaysia |
| |
| | | Attention: Director
Fax Number: + 6087417655 |
| |
| | | To the Purchaser: |
| |
| | | PT Multimedia Nusantara
Century Tower, 11th Floor
Xx. X.X.
Xxxxxx Xxxx, Xxx. X-0
Xx. 0, Xxxxxxx 00000 |
| |
| | | Attention: President Director / Director of Finance
Fax Number: + 62 21 521 0124 |
| |
| 15.2 | | Any notice, demand or other communication so addressed to the relevant party
shall be deemed to have been delivered (a) if given or made by letter, when |
23
| | | actually delivered to the relevant address and (b) if given or made by fax, when
despatched with a confirmed transmission report. |
| 16. | | GOVERNING LAW AND ARBITRATION |
| |
| 16.1 | | This Agreement shall be governed by and construed in accordance with the laws of
Indonesia. The Parties waive the provisions of Article 1266 of the Indonesian Civil
Code to the extent that those provisions require a court order to terminate this
Agreement. |
| 16.2 | (a) | | The Parties agree that if any dispute arises out of or in connection with this
Agreement, including without limitation any question regarding its existence,
validity, termination of rights or obligations of any party, the Parties shall
attempt, for a period of thirty (30) days after the receipt by one Party of a
notice from the other Party of the existence of the dispute, to settle such
dispute in the first instance by mutual discussions between the Parties. |
| | (b) | | Failing such an amicable settlement any and all disputes, conflicts or
controversies arising out of or in connection with this Agreement, or its
performance, shall be settled by arbitration to be held in Jakarta under
the Rules of Arbitration of the Indonesian National Board of Arbitration
(BANI) (the “Rules”). |
| |
| | (c) | | Each of the Parties has the right to appoint one (1) arbitrator. The two (2)
arbitrators will in turn appoint the third arbitrator. Should either Party
fail to appoint its respective arbitrator within thirty (30) days as from the
date requested by the other Party, or should the two (2) arbitrators so
appointed fail to appoint the third arbitrator within thirty (30) days as
from the date of appointment of the second arbitrator then such
arbitrator(s) shall be appointed by the chairman of the BANI. |
| |
| | (d) | | The Board of Arbitration appointed shall operate pursuant to the BANI
Rules. Where the BANI Rules and this Agreement are silent as to the
conduct of the arbitral proceedings, the arbitrators will decide as to how
the proceedings shall be conducted. |
| |
| | (e) | | No Party shall be entitled to commence or maintain any action in a court of
law upon any matter which has been submitted to arbitration hereunder
until such matter shall have been determined as provided in this Clause
16.2 and then only for the enforcement of the arbitration award. |
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| | | | The decision of the board of arbitration in any matter within this Clause shall be final,
binding and incontestable and may be used as a basis for judgment thereon in Indonesia or
elsewhere. It shall include a determination as to which of the Parties shall pay the cost
and expenses of the arbitrators, the administrative costs of the arbitration, the legal
fees incurred by the parties, the cost and expenses of witnesses and all other costs and
expenses necessarily incurred in the opinion of the board of arbitration in order to
properly settle the dispute. |
| | (f) | | The Parties expressly agree (i) that there shall be no appeal to any court from the decision
of the arbitrator, (ii) that the arbitrators need not be bound by strict rules of law in
making their decision, but may pronounce judgment based on ex aequo et xxxx principle and
(iii) that the mandate of the arbitrators duly constituted in this Agreement shall remain in
effect until a final arbitration award has been issued by the arbitrators. |
[signature page will follow]
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The Vendors:
| | | | | | | | | | | |
| PT Sigma Citra Harmoni | | | | Trozenin Management Plc | | |
|
| | | | | | | | | | |
| /s/ Xxxx Xxxx Sugiri | | | | /s/ Eko Xxxxxxx | | |
| | | | | | | |
| Name:
| | Xxxx Xxxx Sugiri
| | | | Name:
| | Eko Xxxxxxx | | |
| Title:
| | PRESIDENT DIRECTOR
| | | | Title:
| | PROXY | | |
The Purchaser:
| | | | | |
| PT Multimedia Nusantara
| |
| /s/ Xxxx X. Xxxxxx
| |
| Name: | Xxxx X. Xxxxxx | |
| Title: | President Director | |
| |
26
