EXHIBIT 10.16D
AMENDMENT TO SUBSCRIPTION AGREEMENT AND WAIVER
AMENDMENT TO SUBSCRIPTION AGREEMENT AND WAIVER, dated as of June 18, 1997
(this "Amendment and Waiver"), among STAR DIGITEL LIMITED, a Hong Kong
corporation with its principal offices at 00/X Xxx Xxxx Xxx Xxxxxx, 00 Xxxxxxx
Xxxx, Xxxxxxx, Xxxx Xxxx (the "Company"), STAR TELECOM HOLDING LIMITED, a Hong
Kong corporation with its registered offices at 6th Floor, Star Telecom Tower,
414 Xxxx Xxxx Road, Xxxx Xxxx, Kowloon, Hong Kong ("STHL"), INTERNATIONAL
WIRELESS COMMUNICATIONS, INC., a Delaware corporation with its principal offices
at 000 Xxxxx Xx Xxxxxx Xxxx, Xxx Xxxxx, XX 00000, X.X.X. ("IWC"), and IWC CHINA
LIMITED, a Mauritius corporation with its principal offices at 000 Xxxxx Xx
Xxxxxx Xxxx, Xxx Xxxxx, XX 00000, U.S.A. ("IWC China"). Capitalized terms used
but not defined herein shall have the respective meanings assigned to them in
the Subscription Agreement among the Company, STHL and IWC, dated as of
September 23, 1996 (the "Subscription Agreement").
The Subscription Agreement sets forth, among other things, the terms and
conditions under which STHL and IWC will subscribe for the Second STHL Shares
and the Second IWC Shares, respectively.
Pursuant to Section 1.1 of the Subscription Agreement, IWC has, pursuant to
an Assignment and Assumption Agreement of even date herewith, between IWC and
IWC China, assigned its rights under Section 1.2 (c) of the Subscription
Agreement to subscribe for the Second IWC Shares to IWC China.
The parties wish to amend the Subscription Agreement as provided herein, and to
waive certain conditions precedent relating to IWC China's subscription of the
Second IWC Shares, STHL's subscription of the Second STHL Shares and IWC China's
payment of the Hebei Premium.
NOW, THEREFORE, the parties hereto agree as follows:
1. AMENDMENT OF SUBSCRIPTION AGREEMENT.
(a) Section 1.3 of the Subscription Agreement is hereby amended by
deleting the last sentence, and deleting clause (b) in its entirety and
replacing it with the following:
"(b) on June 18, 1997, pay and deliver to STHL, or cause its Designated
Assignee to pay or deliver, cash in the amount of US$9,000,000 by wire
transfer of immediately available funds to the bank account designated in
writing by STHL."
(b) Section 3.2 of the Subscription Agreement is hereby amended by
deleting the last two sentences thereto and replacing them with the following:
"The Second Closing shall take place on a date designated by IWC which
shall not be later than June 17, 1998. The Company and STHL shall have no
obligation to complete the Second Closing unless the amount of US$9,000,000
has been paid by IWC or its Designated Assignee to STHL pursuant to Section
1.3(b)."
(c) Section 5.4 of the Subscription Agreement is hereby amended by
deleting the word "PRC" and replacing it with the words "People's Republic of
China ("PRC").
(d) Section 10.1 of the Subscription Agreement is hereby amended by
deleting the last sentence thereof and replacing it with the following:
"Each of the Company and STHL shall have delivered to IWC a certificate,
dated the Second Closing Date, and signed by each party, to the effect set
forth in the preceding sentence."
(e) Section 11.1 of the Subscription Agreement is hereby amended by
deleting the last sentence thereof and replacing it with the following:
"IWC shall have delivered to the Company a certificate, dated the Second
Closing Date and signed by IWC, to the effect set forth in the preceding
sentence."
(f) Clauses (a) and (b) of the Section 13.2 of the Subscription
Agreement are hereby amended by deleting the phrase "the first anniversary of
the First Closing Date" and replacing it with "June 17, 1998."
(g) Clause (f) of Section 15.1 of the Subscription Agreement is
hereby amended by changing the section reference for the defined term "PRC" from
"1.3" to "5.4" and deleting the references to "Deadline Date" and "Hebei
Restructuring."
2. WAIVERS OF CONDITIONS PRECEDENT AND RIGHTS.
(a) IWC China, as Designated Assignee of IWC, hereby waives the
fulfillment of the conditions precedent to its obligations to enter into and
complete the Second Closing set forth in the first sentence of Section 10.1 and
in Sections 10.3 and 10.4 of the Subscription Agreement.
(b) IWC hereby waives its rights under Section 12 and Section 13.2(c)
of the Subscription Agreement.
(c) The Company hereby waives the fulfillment of the conditions
precedent to its obligations to enter into and complete the Second Closing set
forth in the first sentence of Section 11.1 and Section 11.3 of the Subscription
Agreement.
3. CONTINUING EFFECT OF THE SUBSCRIPTION AGREEMENT.
Except as otherwise expressly provided herein, all of the terms and
conditions of the Subscription Agreement are hereby ratified and shall remain
unchanged and shall continue in full force and effect.
4. FURTHER ASSURANCES.
Each of the parties shall execute such documents and other papers and take
such further actions as may be reasonably required or desirable to give effect
to the provisions of this Amendment and Waiver.
5. MISCELLANEOUS.
(a) This Amendment and Waiver shall be governed by and construed in
accordance with the laws of England and Wales.
(b) This Amendment and Waiver may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Amendment and
Waiver, as of the date first above written.
STAR DIGITEL LIMITED
By: /s/ Xxx Xxxx
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Name: Mr. Xxx Xxxx
Title: President and Chief
Executive Officer
STAR TELECOM HOLDING LIMITED
By: /s/ Xxxx Xxxxx
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Name: Xx. Xxxx Xxxxx
Title: Authorized Representative
INTERNATIONAL WIRELESS
COMMUNICATIONS, INC.
By: /s/ Xxxx X.X. XxXxxxx
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Name: Xx. Xxxx X.X. XxXxxxx
Title: Vice Chairman and Managing
Director, Asia
IWC CHINA LIMITED
By: /s/ Xxxx X.X. XxXxxxx
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Name: Xx. Xxxx X.X. XxXxxxx
Title: Chairman
