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SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT (this "AGREEMENT") is executed by and
between ALPHA COMMSAT CO., LTD., a corporation organized under the laws of
Thailand ("ALPHA") and STONE MEDIA CORPORATION, a corporation organized under
the laws of the State of Colorado, United States of America ("STONEMEDIA").
This Agreement is dated as of June 1, 1996, but is actually executed by the
parties hereto as set forth on the execution pages hereof. ALPHA and StoneMedia
are each hereinafter sometimes individually referred to as a "SHAREHOLDER", and
collectively referred to as the "SHAREHOLDERS".
RECITALS
WHEREAS, the Shareholders have agreed that a corporation to be known
as Alpha Stone International Co., Ltd. ("ASI") shall be organized, capitalized
and financed in accordance with and subject to the provisions of this
Agreement; and
WHEREAS, the Shareholders agree that ASI is the joint-venture
contemplated in the License Agreement, executed between Epoch Communications
Corporation ("EPOCH") and ALPHA, dated as of January 15, 1996 (together with
any amendments thereto, the "LICENSE AGREEMENT"), pursuant to which a license
was granted to certain of Epoch's technology (such technology, as defined in
the License Agreement "TECHNOLOGY"); and
WHEREAS, the primary business purpose of ASI shall include marketing
the Technology and facilitating the deployment of the vision of a network (the
"TRANS-ASIAN NETWORK"), initially in the Kingdom of Thailand and then in the
countries of China, Taiwan, Korea, Malaysia, Singapore, Thailand, Japan,
Vietnam, Philippines, Brunei, India, Srilanka, Cambodia, Laos, Indonesia,
Burma, Bangladesh, Pakistan, Australia and New Zealand. (Thailand and the
other countries, collectively, "ASIA PACIFIC");
WHEREAS, the Trans-Asian Network is envisioned to include similar or
compatible computer networks, control architecture and specialized programming
which will support access to the EPOCH real-time, interactive products; and
WHEREAS, the Shareholders wish to enter into this Agreement to set
forth certain rights and obligations of the Shareholders and other matters as
set forth herein.
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NOW THEREFORE, in consideration of the premises and of the mutual
promises and agreements herein contained, the Shareholders agree as follows:
ARTICLE I
ORGANIZATION AND SUBSCRIPTION FOR SHARES
SECTION 1.01. Activity Pending Organization.
Prior to the organization of ASI, ALPHA (in its name) and StoneMedia
and/or Epoch Communications Corporation (in one or both of their names), as
promoters of ASI, may enter into business arrangements which would otherwise be
a "business opportunity" of ASI; and, upon formation of ASI, said business
arrangements, upon approval thereof by the Board of Directors of ASI, shall be
transferred to and assumed by ASI.
SECTION 1.02. Organization.
(a) ASI shall have an authorized capitalization of Baht 10,000,000
consisting of 1,000,000 shares of Common Stock (the "COMMON STOCK") having a
par value of Baht 10 per share with ALPHA having an ownership interest up to
seventy percent (70%) of such Common Stock and StoneMedia having an ownership
interest up to thirty percent (30%) of such Common Stock;
(b) If the name Alpha Stone International Co., Ltd. shall not be
available for use by ASI, then the corporation to be organized by the parties
hereto shall have such other available name as shall be mutually agreed to by
the Shareholders.
SECTION 1.03. Subscription for Initial Capitalization.
(a) To initially capitalize ASI, the Shareholders hereby
subscribe for and agree to purchase the number of shares of Common
Stock set forth below, opposite its name, at and for a purchase price
of Baht 10 per share, namely:
Shareholder Common Stock
----------- ------------
ALPHA 175,000
StoneMedia 75,000
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it being understood that no shares of Common Stock are presently
issued and outstanding or, except as herein provided, subscribed for.
(b) The certificates of shares of Common Stock shall be
issued promptly, but in no event later than thirty (30) business days
following receipt of the Certification Document (herein so called)
issued by the appropriate governmental authority evidencing the
formation of ASI.
(c) The subscription price for the initial shares of Common
Stock shall be paid in full by each Shareholder, as set forth above,
in Baht paid directly into a designated bank account in accordance
with applicable Thai law.
ARTICLE II
MANAGEMENT
SECTION 2.01. Composition of Board of Directors.
(a) The Board of Directors (the "BOARD") of ASI shall consist of five
members, three of whom shall be nominated and designated by ALPHA, two of whom
shall be nominated and designated by StoneMedia.
Within two weeks of executing this Agreement, each Shareholder shall
formally submit its Board nominees to the other Shareholder. Thereafter, Board
members shall be nominated in accordance with applicable law and this
Agreement.
(b) Each Shareholder agrees to vote its respective shares of Common
Stock so that each nominee so designated hereunder shall be elected as a
member of the Board. In the event of the inability, unwillingness, or
resignation of any designee to be a member of the Board, the Shareholder
represented by such person shall have the right to designate the substitute
therefor; and each Shareholder agrees to vote its respective shares of Common
Stock so that such substitute shall be elected as a member of the Board, it
being agreed that the Board shall at all times be comprised of three
representatives of ALPHA, and two representatives of StoneMedia.
(c) The Shareholders agree that: (i) a nominee of ALPHA shall be
elected as the Chairman of the Board of ASI; and (ii) a nominee of StoneMedia
shall be elected as a Vice Chairman of the Board; and (iii) the Board shall
elect its officers.
SECTION 2.02. Quorum. A majority of the Board of Directors shall
constitute a quorum. No quorum for a meeting of the Board shall exist unless
there shall be actually present or by written proxy at any meeting at least two
Directors nominated by ALPHA and one Director nominated by StoneMedia.
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SECTION 2.03. Actions By Board. Except as set forth herein, all
decisions of the Board shall require an affirmative vote of at least a simple
majority of the Directors present (actual or by written proxy) at the meeting.
With respect to the following matters, decisions can be only taken
with respect to such matters if at least one Director representing StoneMedia
is present (actual or by written proxy) at such meeting, and votes in favor of
the decision:
(a) Future financing, either debt or equity;
(b) Declaration and payment of dividends;
(c) Annual business plans and budgets (including, without
limitation, key employee and officer compensation);
(d) Changes in Certificate of Incorporation;
(e) Changes in Articles of Association;
(f) Mergers, consolidations or acquisitions of material assets;
(g) Entering into or material modification of any material
agreement;
(h) Any material change in the business;
(I) Sale of any substantial part of the assets of ASI;
(j) Guarantees and loans;
(k) Future capital contributions; and
(l) Agreements with or between any Shareholder or any Affiliate of
a Shareholder.
For purposes of clause (g) and clause (h) of this Section 2.03, "MATERIAL
AGREEMENT" and "MATERIAL CHANGE IN THE BUSINESS" shall mean any agreement or
change which could have or cause: (A) a material adverse effect on: (i) the
property of the ASI or the business, operations, condition (financial or
otherwise), liabilities or capitalization of ASI, (ii) the ability of ASI to
perform its obligations under any contract to which it is a party, (iii) the
validity or enforceability of any contract to which ASI is a party or (iv) the
availability of any government approval as shall now or hereafter be necessary
to be
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obtained under applicable government rules in connection with the development
of ASI business or ability of ASI to comply with the terms and conditions of
any government approval; or (B) the occurrence of any of the following: (i) the
impairment of any government approval relating to ASI's business or (ii) the
issuance by any government authority of any order, judgment, regulation or
decision or the taking of any other action the effect of which (x) is to impair
any governmental approval or (y) could result in a material adverse effect on
ASI under clause(A) above.
SECTION 2.04. General Conduct of Business. ASI shall be managed and
operated, at all times, in compliance with the policies and procedures adopted
by the Board. The daily conduct of the business of ASI shall be the
responsibility of the management of ASI ("Management") and/or the officers
and/or employees charged with the responsibility by the Board.
SECTION 2.05. Reports and Plans. Management shall prepare
financial reports and operating plans as required by the Board.
SECTION 2.06. Books of Account. Proper and complete books of account
and accounting records shall be kept by ASI in accordance with internationally
recognized Generally Accepted Accounting Principles. The independent auditors
for ASI shall be designated by the Board. ALPHA and StoneMedia shall work with
said auditors to determine the accounting policies of ASI. Financial
statements, including year end audited statements and unaudited quarterly
statements (prepared on a comprehensive basis of accounting for income and tax
reporting) shall be furnished to the Shareholders at such times and in such
forms as may be reasonably requested by ALPHA and StoneMedia.
SECTION 2.07. Bank Accounts. ASI shall maintain accounts in such
banks as may be designated from time to time by Management and the signing
authority on depository accounts and the authority for borrowings shall be as
specified from time to time by the Board; provided however: (i) any such bank
shall not control nor be under the control of any Affiliate of any Shareholder
(except with the unanimous consent of the Board of Directors of ASI); shall be
either a Thai or United States bank subject, respectively, to the rules,
regulations and oversight of the Bank of Thailand and the United States
Comptroller of Currency.
SECTION 2.08. Fiscal Year. Unless otherwise provided in a resolution
adopted by the Shareholders, the fiscal year of ASI shall be a calendar year
except that the first fiscal year of ASI shall commence on the date of its
formation and end on December 31, 1996.
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ARTICLE III
OPERATIONS; BUSINESS PURPOSE
SECTION 3.01. License. The Shareholders acknowledge, agree and
reaffirm that, upon the organization thereof, ASI shall be the lawful assignee
of the license granted by EPOCH to ALPHA in the License Agreement; that the
license (the "LICENSE") granted and defined in, and transferred to ASI, upon
the organization thereof, pursuant to the License Agreement shall be and is
the sole and exclusive property of ASI upon the organization thereof; and
that no Shareholder, upon the organization of ASI, has, nor shall have, any
ownership interest in the License. Within thirty (30) days of ASI being
organized and capitalized, it is agreed that such License Agreement shall be
amended and/or supplemented to set forth an option on ASI's behalf to renew the
License for an additional five (5) years on a fair and equitable, arms-length
transaction basis. Such amendment or supplement shall provide that ASI shall
notify Epoch in writing three (3) months prior to the expiration date of the
License as to whether such renewal will be exercised.
SECTION 3.02. Permissible Undertakings and Contracts. ASI may
undertake projects and contracts where the Technology is a key component
thereof, and where the products incorporating the Technology are intended for
use in Asia Pacific by End-Users (as defined in the License Agreement). ASI
shall use reasonable efforts so as not to allow End- Users or unauthorized
parties to resell the Technology, make any unauthorized modifications to the
Technology, or use the Technology or any product outside Asia Pacific.
SECTION 3.03. Sub-contracts, Payments.
(a) It is contemplated that, during the initial phases of its
development of its business, ASI will sub- contract much of each project to be
performed by the respective staffs of ALPHA, StoneMedia and/or EPOCH. Any
portion of a project which is outside the capabilities of the Shareholders will
be properly sub-contracted to third-parties.
(b) ASI may, and it is contemplated that, ASI will subcontract
projects to Affiliates of the Shareholders of ASI; provided however, any such
subcontract shall be invalid and without force and effect should (i) such
transaction result in any direct or indirect personal gain to any person
controlling, controlled by or under common control with any officer, Directors
or Shareholder of ASI, or any affiliate thereof, and (ii) such transaction,
directly or indirectly, has a material detrimental effect on the business,
affairs or prospects of ASI.
(c) Where staff are seconded to ASI by ALPHA, StoneMedia, or their
respective affiliates, ASI shall issue in advance a written service purchase
order to the entity providing such staffing, and shall pay and reimburse the
entity providing such staffing
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an amount which is agreed in writing as fair and equitable on an arms length
transaction basis.
ARTICLE IV
DIVIDENDS
SECTION 4.01. Dividends. Unless otherwise agreed by the Board, as set
forth in Section 2.03 of the Agreement, the Shareholders agree that no
dividends shall be paid to the Shareholders during the first three fiscal years
of ASI's operation, and that after the fiscal quarter ending on December 31,
1999, dividends shall be declared and paid in an amount not to exceed 50% of
ASI's net after tax profits, as agreed at a Shareholders' meeting.
ARTICLE V
NO DILUTION
SECTION 5.01. Initial Working Capital. The parties hereby acknowledge
that: (a) the working capital requirements of ASI through its first full fiscal
year of operations will exceed the initial capitalization to be funded by the
Shareholders' subscription payments; (b) that the financial positions and
resources of ALPHA and StoneMedia are disparate; and (c) that no financing
arrangement or issuance of securities shall be undertaken by ASI or ALPA on
behalf of ASI which would serve to dilute, or result in a dilution to, below
thirty percent (30%) the interest of StoneMedia in distributions to
shareholders of every form and nature, including without limitation
distributions through the issuance of securities and payments in kind.
ARTICLE VI
TRANSFER OF SHARES
SECTION 6.01. Limitations. Shares of the Common Stock may not be
transferred except as set forth in this Article VI.
SECTION 6.02. Permitted Transfers. Shares of the Common Stock may be
transferred:
(a) At any time, during the term of this Agreement, by any party to
this Agreement to any third party with the consent of the other Shareholder;
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(b) At any time, freely and without limitation, from and after the
third anniversary of the date of this Agreement;
(c) Upon early termination of this Agreement; and
(d) At any time during the term of this Agreement, from any party to
this Agreement to a parent or a wholly- owned subsidiary of such party;
provided, however, notwithstanding any such transfer, the transferor shall
remain bound by its respective agreements contained in this Agreement.
SECTION 6.03. Change in Control.
(a) If at any time while any of ALPHA or StoneMedia owns any shares
of ASI any of the following events (each of which is hereinafter referred to in
this Section 6.03 as a "FORCED SALE EVENT") occurs to ALPHA or StoneMedia (the
one of them to which such event occurs being hereinafter referred to in this
Section 6.03 as the "CHANGED PARTY"), the other party (hereinafter referred to
in this Section 6.03 as the "UNCHANGED PARTIES") shall have the option (the
"FORCED SALE OPTION"), but not the obligation, of causing the Changed Party to
this Agreement (or its successors) to purchase all shares of ASI owned by the
Unchanged Party to this Agreement (or its successors) pursuant to subparagraph
(b) of this Section 6.03:
(i) The Changed Party is merged with and disappears into another
corporation;
(ii) The Changed Party is consolidated with another corporation;
(iii) All or substantially all of the assets of the Changed Party
are transferred to another person or entity; or
(iv) Any person shall acquire directly or indirectly the beneficial
ownership of more than 50% of the outstanding voting stock of
the Changed Party (whether by merger, tender offer, or
otherwise). For purposes of the foregoing, the terms "PERSON"
shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability
company, trust, unincorporated organization or government or
agency or any political subdivision thereof and "BENEFICIAL
OWNERSHIP" shall mean ownership by a person who, directly or
indirectly, through any contract, arrangement, understanding,
relationship or otherwise has or shares (1) voting power,
which includes the power to vote, or to direct the voting of
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the voting stock and/or (2) investment power, which includes
the power to dispose, or to direct the disposition of, such
voting stock.
For purposes of Section 6.03(a), the terms "ANOTHER CORPORATION",
"PERSON", and "ENTITY" shall not include a corporation, person or entity which
is an affiliate of the Changed Party at the time of the occurrence of the
Forced Sale Event and the term "AFFILIATE" shall mean any other corporation,
person or entity that, directly or indirectly, controls, is controlled by or is
under common control with such Changed Party.
(b) The Changed Party shall give the Unchanged Party written notice
of the occurrence of a Forced Sale Event within twenty days after such
occurrence (such notice being hereinafter referred to in this Section 6.03 as
the "FORCED SALE EVENT NOTICE"). Thereafter, the Unchanged Party shall have
the option to exercise the Forced Sale Option as hereinafter provided by giving
written notice (hereinafter referred to as the "FORCED SALE NOTICE") to the
Changed Party or its successors) of its exercise of the Forced Sale Option
within twenty days after its receipt of the Forced Sale Event Notice. The
Forced Sale Notice shall include an offer of the Unchanged Party to sell all
shares of ASI owned by the Unchanged Party (or its successors) at a price per
share specified therein. The Changed Party must either accept such offer or
offer in writing within twenty days after its receipt of the Forced Sale Notice
to sell all shares of ASI owned by the Changed Party at a price per share
specified in such written offer which is at least 10% lower than the Unchanged
Parties' sale offer. This procedure shall continue, with each party having the
right to either accept the other party's sale offer or make another sale offer
to such other party which is at least 10% lower per share than such other
party's last sale offer, until one of the parties either accepts the other
party's sale offer or fails to make a lower sale offer as aforesaid within
twenty days after receipt of such other party's last sale offer, whereupon the
party willing to accept the highest per share sale price offer (the
"PURCHASER") shall purchase all shares of ASI owned by such other party (or its
successor) (the "SELLER") and the Seller shall sell such shares to the
Purchaser for such price per share. Payment for such shares shall be made by
certified check or wire transfer within twenty days after it is determined who
the Purchaser is against delivery to the Purchaser of the certificates therefor
duly endorsed for transfer or accompanied by a duly executed instrument of
assignment.
(c) If the Unchanged Party fails to exercise the Forced Sale Option
within the twenty day period provided therefor, no party shall have any right
under this Section 6.03 to cause the other party (or its successor) to purchase
or sell shares of ASI.
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SECTION 6.04. First Refusal Procedure.
(a) If any party to this Agreement wishes to sell all or part of its
shares in ASI pursuant to Section 6.02 (a) of this Agreement (such party being
herein referred to as "SELLING SHAREHOLDER') such Selling Shareholder shall
give written notice by registered mail ("FIRST REFUSAL NOTICE") to the other
party to this Agreement ("REMAINING SHAREHOLDER"). The First Refusal Notice
shall state the Selling Shareholder's intention of transferring its shares and
the number of shares to be transferred. The Selling Shareholder, pursuant to
the First Refusal Notice, shall offer to sell to the Remaining Shareholders
such shares for the Transfer Price (and terms) as set forth in Section 6.05 of
this Agreement. Such offer shall be irrevocable for sixty (60) days from the
date of the mailing of the First Refusal Notice.
(b) If the Remaining Shareholder wants to purchase the shares of the
Selling Shareholder which have been offered pursuant to the First Refusal
Notice, such Remaining Shareholder must notify the Selling Shareholder of its
acceptance of the offer by registered mail ("NOTICE OF ACCEPTANCE") on or prior
to the expiration of such sixty (60) day period and must make payment of the
Transfer Price by international wire transfer within thirty (30) days
following the date of the mailing of the Notice of Acceptance.
(c) Any shares offered pursuant to the First Refusal Notice which
have not been purchased and paid for pursuant to Sections 6.04(a) and (b) above
within ninety (90) days of the date of the mailing of the First Refusal Notice
above may thereafter be sold by the Selling Shareholder at any time within 180
days from the date of the mailing of the First Refusal Notice to any person or
persons at a price not less than the Transfer Price and on other terms no less
favorable to the Remaining Shareholder than those set forth in the First
Refusal Notice. Shares not sold by the Selling Shareholder within such 180 day
period shall be subject, thereafter, to the limitations on transferability,
including the First Refusal Procedure provisions of this Agreement.
SECTION 6.05. Third Persons. Notwithstanding anything herein to the
contrary, if a Shareholder, after fulfilling all of its other obligations
hereunder with respect to a transfer of Shares to a third party, transfers
Shares to a third party; the Shares in the hands of such third party shall
remain subject to this Agreement and such third party shall signify its consent
to be bound by the terms of this Agreement by executing the signature page of
this Agreement.
ARTICLE VII
TERM OF AGREEMENT - TERMINATION
SECTION 7.01. Term of Agreement. This Agreement shall continue to be
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binding upon the parties hereto and shall remain in full force and effect, in
accordance with the provisions of this Agreement.
SECTION 7.02. Termination of Agreement. The term of this Agreement
shall terminate upon:
(a) the unanimous written consent of the Shareholders;
(b) the registration of the shares of Common Stock on the
Stock Exchange of Thailand or any United States national exchange;
(c) the dissolution and winding up of the affairs of ASI in
accordance with applicable law.
SECTION 7.03. Force Majeure.
(a) Termination of this Agreement shall not be permitted during any
period that failure to perform any term of this Agreement is caused by
occurrences beyond the control of the party in question, including, but without
limiting the generality of the foregoing, acts of governmental authorities,
local or federal, acts of God strikes, fires, floods, explosions, wars, riots,
storms, earthquakes, accidents, acts of public enemy, rebellion, insurrection,
sabotage, epidemics, quarantine restrictions, shortages of labor, materials or
supplies, failures by contractors or subcontractors, transportation embargoes,
or failure or delays in transportation.
(b) Without prejudice to any other remedies that may then be
available, in the event of the causes referred to in this Section 7.03, the
parties will cooperate in an effort to agree upon establishment of such
alternative arrangements not subject to such failure or delay as will confer
upon them benefits comparable in character and substantially equivalent in
amount to those intended to be conferred by this Agreement on terms and
conditions not materially more burdensome to any party than those herein
provided.
ARTICLE VIII
ASSIGNMENT OF RIGHTS; DEVELOPMENT
SECTION 8.01. Right to Use Development Work. The Technology and work
developed ("DEVELOPMENT WORK") by or on behalf of ASI will be made available on
an on a fair and equitable, arms-length transaction basis (upon execution of a
licensing agreement with respect to such information): (i) to ALPHA for use
within Asia Pacific and (ii) StoneMedia for use outside of Asia Pacific.
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ARTICLE IX
PROTECTIVE COVENANTS
SECTION 9.01. Definitions.
"Competing Business" shall mean a business or venture involving:
(a) within Asia Pacific: (i) the deployment of technology or
of a network which, directly or indirectly, is in competition with the
services provided by ASI on and through the Trans-Asian Network, (ii)
the financing, manufacturing, distribution or marketing of products
which compete with products incorporating ASI's technology, including
the Technology and Development Work; or (iii) a project or venture
which engages in "head to head" commercial, competition with a
substantially similar project or venture of ASI; and
(b) in all parts of the world, other than Asia Pacific, any
business in which StoneMedia is engaged, or within the two preceding
years was engaged, or pursuant to resolutions or a business plan
adopted by StoneMedia, has declared an intent to become engaged.
"Confidential Information" shall mean:
a) Information, data, drawings, computer software and
hardware and other records and materials disclosed to or known to any
Shareholder or its affiliates as a direct or indirect, consequence of
or through its activities with or ownership of the shares of Common
Stock, about any Protected Person or ASI's business, methods, business
plans, operations, services and products (existing and contemplated),
and processes.
(b) All information disclosed to any Shareholder, or to
which any Shareholder has access during the period of his engagement,
for which there is any reasonable basis to believe the information Is
confidential or which information appears to be treated by ASI as
Confidential Information shall be presumed, which presumption may be
rebutted by any Shareholder, to be Confidential Information hereunder.
"Non-Disclosure Period" shall mean, with respect to each Shareholder,
the period commencing as of the date of this Agreement and thereafter for a
period of five (5) years following the date that such Shareholder no longer
owns any shares of the Common Stock.
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"Ownership Period" shall mean that period during which a Shareholder
or any affiliate of such Shareholder, or any affiliate of an affiliate owns any
shares of the Common Stock.
"Person" shall mean any individual, proprietorship, partnership,
corporation, association or other entity.
"Protected Person" shall mean any Person which at the time of the
execution of this Agreement, or within the one (1) year period prior to the
date hereof is a Person with whom a Shareholder has conducted business on a
regular, frequent and material basis..
SECTION 9.02 Confidentiality.
(a) Each Shareholder acknowledges that such Shareholder,
pursuant to this Agreement, will have access to and receive certain
Confidential Information. Each Shareholder hereby expressly covenants
and agrees that, during the Ownership Period and for a period of five
(5) years thereafter, it will not use or disclose any Confidential
Information, in whole or in part, to any person or entity without the
prior written approval of ASI and the other Shareholder.
(b) Each Shareholder hereby acknowledges that the
Confidential Information is the sole property of ASI and no
Shareholder shall acquire any ownership interest therein. In
particular, without limiting the generality of the foregoing, each
Shareholder agrees to maintain in confidence and not to disclose to
any third party, without the prior written consent of ASI and the
other Shareholder any information related to: the Technology,
Development work, or the Trans-Asian Network, except to the extent
such information is or becomes public knowledge or is already known to
the party acquiring such information from a source other than a
Shareholder's affiliates or advisors.
SECTION 9.03. Personnel. Each Shareholder recognizes that the staff
personnel of such Shareholder and its affiliates, from time to time, will have
access to and contact and familiarity with certain proprietary data and market
information of the other Shareholder and its affiliates. Each Shareholder
agrees to use its best effort and exercise diligence to protect and safeguard
the trade secrets and confidential or proprietary information of the other
Shareholder and its affiliates. Each Shareholder hereby acknowledges that such
trade secrets and confidential or proprietary information shall remain the sole
property of the other Shareholder or its affiliate and, unless expressly
transferred to ASI, neither ASI nor the other Shareholder shall acquire any
ownership interest therein.
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SECTION 9.04. Return Of Confidential Information. Each Shareholder
agrees that immediately following the date, if any, on which such Shareholder
cease to own any share of the Common Stock to deliver to ASI Confidential
Information in its possession, custody or control, or in the care custody or
control of any Affiliate.
Section 9.05 Protection of Goodwill. Each Shareholder acknowledges
that in the course of carrying out, performing, and fulfilling its
responsibilities hereunder, such Shareholder will be given access to and be
entrusted with Confidential Information relating to ASI's business and
Customers and that it will develop, on behalf of ASI, personal acquaintances
with Customers and prospective Customers, which acquaintance may constitute
ASI's only contact with such persons. Each Shareholder recognizes that (i) the
goodwill of ASI depends upon, among other things, its keeping the Confidential
Information confidential and that unauthorized disclosure of such Confidential
Information would irreparably damage ASI, and (ii) disclosure of any
Confidential Information to competitors of ASI or to the media or general
public would be highly detrimental to ASI. Each Shareholder further
acknowledges that in the course of performing its obligations to ASI, each
Shareholder may be, from time to time, both a representative of ASI to many of
ASI's Customers, and, in some instances, a representative on behalf of such
Customers to others. As such, each Shareholder will be responsible for
maintaining or enhancing the business and/or goodwill of ASI with those
Customers and of the Customers with others.
SECTION 9.06. Covenant Not to Compete. During the Ownership Period,
except on behalf of ASI, and for a period of five (5) years thereafter no
Shareholder shall:
(a) Solicit, contact or service any Protected Person which is
known to be a Protected Person at the time of the initial contact of
such Protected Person by such Shareholder;
(b) Give or attempt to give any person or entity assistance
with soliciting, contacting or serving any Protected Person;
(c) Engage in any Competing Business;
(d) Induce or attempt to induce any Protected Person known to
be a Protected Person at the time of the initial contact of such
Protected Person by any Shareholder to withdraw, curtail, divert, or
cancel its business with ASI or in any manner modify or fail to enter
into any actual or potential business relationship with ASI;
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15
(e) Induce or attempt to induce any employee of ASI or any
independent contractor providing services to or behalf of ASI, to
terminate his or her employment or other business relationship with
ASI; or
(f) Become engaged or otherwise associate (for business
purposes) with any Person, as an employer, consultant, agent,
principal, partner, shareholder (other than through ownership of
publicly-traded security of a Person which represents less than one
percent (1%) of the outstanding capital stock of such Person),
corporate officer, director, investor, financier or in any other
individual or representative capacity, by any Person engaged in (as to
StoneMedia in Asia Pacific and as to any other Shareholder in any area
other than Asia Pacific) a Competing Business.
Section 9.07. Conflicts of Interests. Each person becoming a
Shareholder expressly acknowledges and agrees that it is not presently engaged
in and/or holds interests in any undisclosed businesses and/or ventures
("CONFLICTING INTERESTS") which will either directly compete with or give rise
to irreconcilable conflicts of interest with the business and interests of ASI.
If at any time a Shareholder believes that it may be engaged in and/or
may hold an interest in any business and/or venture which would directly
compete with or give rise to an irreconcilable conflict of interest with the
business and interests of ASI, then such Shareholder shall call a meeting of
the Board of ASI to inform it of such matters.
SECTION 9.08. Survival of Covenants. Each covenant set forth in this
Article shall survive the termination of this Agreement and shall be construed
as an agreement independent of any other provision of this Agreement, and the
existence of any claim or cause of action of any Shareholder against ASI or any
other Shareholder whether predicated on this Agreement or otherwise shall not
constitute a defense to the enforcement by ASI or any other Shareholder of said
covenant.
SECTION 9.09. Remedies. In the event of breach or threatened breach
by any Shareholder of any provision of this Article, ASI and any other
Shareholder on its behalf and on behalf of ASI shall be entitled to relief by
temporary restraining order, temporary injunction, or permanent injunction or
otherwise, in addition to other legal and equitable relief to which it may be
entitled, including any and all monetary damages which it or ASI may incur as a
result of said breach, violation or threatened breach or violation. ASI and any
other Shareholder may pursue any remedy available to it concurrently or
consecutively in any order as to any breach, violation, or threatened breach or
violation, and the pursuit of one of such remedies at any time will not be
deemed an election of remedies or waiver of the right to pursue any other of
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16
such remedies as to such breach, violation, or threatened breach or violation,
or as to any other breach, violation, or threatened breach or violation.
Existence of any claim or cause of action of any Shareholder against ASI or any
other Shareholder, whether predicated on this Agreement or otherwise, will not
constitute a defense to the enforcement by ASI or any Shareholder of this
provision of the Agreement.
ARTICLE X
GENERAL
SECTION 10.01. Entire Agreement. This Agreement constitutes the
entire Agreement between the parties hereto pertaining to the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings of the parties in connection therewith.
SECTION 10.02. Counterparts. This Agreement may be signed in any
number of counterparts, all of which are taken together shall constitute one
and the same instrument, and any party hereto may execute this Agreement by
signing one or more counterparts. One complete set of counterparts shall be
lodged with and maintained by ASI.
SECTION 10.03. Notices, All notices required under this Agreement
shall be in writing and shall be deemed to have been duly given upon the
delivery thereof by Federal Express, Airborne Express or such other similarly
recognized courier service employing an electronic tracking system, to the
following address:
(a) If to ALPHA, to;
Alpha CommSat Co., Ltd.
000 Xxxxxxxxx Xx., 00xx Xxxxx
Xxxxxxx 00000
Attention: Chief Executive Officer
Fax: 000-000-000-0000
With a copy to:
Hunton & Xxxxxxxx
000 Xxxx Xxx., 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax: 000-000-0000
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(b) If to StoneMedia, to:
StoneMedia Corporation
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Chief Operating Officer
Fax: 000-000-0000
With a copy to:
Xxxxx X. Xxxxxxxxx, Esq.
Xxxxxxx, Xxxxxx & Xxxxxxxxx
00000 X. Xxxxxxx Xxxxx.
Xxxxxx, Xxxxx 00000
Fax: 000-000-0000
In case of change of address of any of the parties hereto, such party shall
notify the other party of such change in the manner specified above.
SECTION 10.04. Governing Law. All questions relating to the
validity, construction or performance of this Agreement shall be governed by
the laws of the Kingdom of Thailand.
SECTION 10.05. Arbitration.
(a) It is mutually understood and agreed that all disagreements,
disputes and/or claims arising in connection with this Agreement shall be
fairly settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce ("ICC") by three arbitrators (unless a single
arbitrator is unanimously agreed to by the parties) appointed in accordance
with said rules.
(b) Arbitration proceedings hereunder shall be conducted in the
English language in The Netherlands, unless otherwise agreed by the
Shareholders.
(c) Section 10.04 hereof shall govern the law to be applied with
respect to any such dispute.
(d) With respect to arbitration or litigation, reasonable attorneys'
fees, arbitration costs and court costs shall be awarded to the prevailing
party.
(e) Prior to requesting arbitration hereunder, the parties agree to
attempt, in good faith, to resolve any dispute in accordance with the Rules of
Optional Conciliation of the ICC. Any such conciliation proceedings shall be
held in the English language in
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18
The Netherlands, unless otherwise agreed by the Shareholders. With respect to
such conciliation proceeding, reasonable attorneys' fees, arbitration costs and
court costs shall be awarded to the prevailing party.
(f) Prior to requesting conciliation hereunder, an offended party
hereunder shall notify the offending party of the alleged breach of this
agreement. In such case the parties agree to exercise their best, good faith
efforts to resolve such disagreement. If such dispute shall not be resolved
within a timely period, the offended party shall give the offending party
notice that it has thirty (30) days to submit a plan to the offended party to
resolve the dispute. The parties shall then attempt to agree upon such a plan,
and if an agreeable plan is thereafter reached shall immediately implement such
plan. If the parties fail to agree upon a plan or fail to implement such plan
as agreed upon, then one or both of the parties shall immediately be entitled
to seek conciliation and arbitration as set forth in this Section 10.05.
(g) Nothing in this Section 10.05 is intended to preclude the parties
from seeking relief in a proper forum under conditions which require
intervention to address an emergency situation where time is of the essence.
Notwithstanding, a party seeking relief under this provision shall bear the
costs and expenses of the other party having to defend such an action if the
forum ultimately concludes that the action was sought in bad faith.
SECTION 10.06. Amendment and Waivers. This Agreement may be amended,
and compliance with any provision herein may be waived, only by a written
agreement duly executed and delivered by and among all Shareholders.
SECTION 10.07. Non-Waiver. The waiver, express or implied, by any
Shareholder of any right hereunder or of any failure to perform or breach
hereof of any other Shareholder, shall not constitute or be deemed a waiver of
any other right hereunder or of any other failure to perform or breach hereof
by the same or by any other Shareholder, whether of a similar or dissimilar
nature thereof.
SECTION 10.08. Survival of Rights, Duties and Obligations.
Termination of this Agreement for any cause shall not release any party from
any liability which at the time of termination had already accrued to any other
party or which thereafter may accrue in respect of any act or omission prior to
such termination.
SECTION 10.09. Further Assurances. Each of the parties hereto shall,
upon request of the other party, take such further action and execute,
acknowledge and deliver all such instruments, of further assurance as may be
necessary to carry out the provisions of this Agreement.
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SECTION 10.10. Legend on Certificates. To insure implementation of
the restrictions on the transfer of the Common Stock contained in this
Agreement, each certificate representing Common Stock which shall be issued by
ASI shall bear the following legend:
The sale, assignment, transfer, pledge or hypothecation of the
securities represented by this certificate is restricted by and
subject to the provisions of a shareholders agreement, dated as of
______________________, 1996, which is on file at the offices of ASI
and a copy of which will be furnished to any shareholder upon request
and without charge.
SECTION 10.11. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall be ineffective, as to
such jurisdiction, to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof or affecting the validity
or enforceability of such provision in any other jurisdiction.
SECTION 10.12. Assignment. Neither Shareholder may assign this
Agreement, or any interest herein, without the prior written consent of the
other party to this Agreement.
SECTION 10.13. Cooperation Regarding Listing. All parties shall use
their best efforts to conform with the rules and regulations of the Securities
and Exchange Commission ("SEC") and the Stock Exchange of Thailand ("SET") in
order to list ASI on the SET if the Board determines to have ASI listed on the
SET.
SECTION 10.14. Expenses. All expenses incurred in connection with
the preparation of this Agreement and the incorporation and organization of ASI
(including financial advisory, legal and accounting) shall be :
(i) paid by ASI if ASI, is incorporated; and
(ii) paid by the Shareholders, in accordance with the share
holdings of ASI set forth in Article 1 of this Agreement.
SECTION 10.15. Appointment of Auditors. The auditors of ASI shall be
appointed by the Board in accordance with applicable law.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed by their respective duly authorized representatives, as of the day
and year first above written,
ALPHA COMMSAT CO., LTD. STONE MEDIA CORPORATION
By: /s/ TARWORN YAOWAKUN By: XXXXXX X. XXXXXXX
--------------------------------- ---------------------------------
Name: Tarworn Yaowakun Name: Xxxxxx X. Xxxxxxx
Title: President Title: Chief Executive Officer
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SHAREHOLDER AGREEMENT - Page 20 of 20
