EXHIBIT 10.13C
SHAREHOLDERS AGREEMENT
by and among
PT BINA REKSA PERDANA
and
INTERNATIONAL WIRELESS COMMUNICATIONS
and
PT DELTONA SATYA DINAMIKA
and
PT RAJASA HAZANAH PERKASA
HADIPUTRANTO, HADINOTO & PARTNERS
Landmark Building Tower A, 24th Floor
Jl. Jend. Xxxxxxxx Xx. 0
Xxxxxxx 00000
Table of Contents
Page
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1. PURPOSE OF THE AGREEMENT; CONVERSION OF XXX 0
2. CAPITAL OF XXX 0
3. PRIOR TO APPROVAL OF THE AMENDED ARTICLES OF ASSOCIATION 3
4. FOLLOWING APPROVAL OF THE AMENDED ARTICLES OF ASSOCIATION 5
5. MANAGEMENT AND SUPERVISION OF THE COMPANY 5
6. REPRESENTATION AND WARRANTIES 8
7. TRANSITION PERIOD BUSINESS PLAN AND BUDGET 10
8. PRE-CONVERSION EXPENSES 10
9. DISTRIBUTION OF PROFITS DURING TRANSITION PERIOD 11
10. FINANCIAL POLICY 11
11. CONFIDENTIALITY AND XXX-XXXXXXXXXX 00
00. EFFECTIVE DATE; TERM AND TERMINATION 14
13. ARBITRATION 15
14. GENERAL PROVISIONS 16
EXHIBIT A 20
EXHIBIT B 21
EXHIBIT C 22
EXHIBIT D 23
EXHIBIT E 24
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SHAREHOLDERS AGREEMENT
This SHAREHOLDERS AGREEMENT (the "Agreement") is made and entered into on this
9th day of November 1995 by and among:
1 PT BINA REKSA PERDANA ("BRP"), a company established and operating under
the laws of the Republic of Indonesia, with its principal office at
Arthaloka Building, 14th Floor, Xxxxx Xxxxxxxx Xxxxxxxx Xx. 0, Xxxxxxx
00000, Xxxxxxxxx;
2. INTERNATIONAL WIRELESS COMMUNICATIONS ("IWC"), a corporation organized and
operating under the laws of the State of Delaware, United States of
America, with offices at 400 South El Camino Real, Xxxxx 0000, Xxx Xxxxx,
Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of America;
3. PT DELTONA SATYA DINAMIKA ("DSD"), a company established and operating
under the laws of the Republic of Indonesia, with its principal office at
Setiabudi Building II, Floor 3A, Xx. XX Xxxxxx Xxxx, Xxxxxxx 00000,
Xxxxxxxxx; and
4. PT RAJASA HAZANAH PERKASA ("RHP"), a company established and operating
under the laws of the Republic of Indonesia, with its principal office at
Wisma Pejaten, Xx. Xxxxxxx Xxxxx Xx. 0, Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx.
(IWC and DSD hereinafter collectively, shall be referred to as the "New
Shareholders", and the New Shareholders, RHP and BRP hereinafter collectively
shall be referred to as the "Parties").
WHEREAS:
(A) As at the date of this Agreement, RHP has authorized and issued capital of
Rp. 1.000.000.000,00 (one billion Rupiah) representing 1.000 (one thousand
shares) with a nominal value of Rp. 1.000.000,00 (one million Rupiah) per
share, with BRP being registered holder of 1000 shares or 100%;
(B) RHP under a revenue sharing arrangement with PT (Persero) Telekomunikasi
Indonesia ("TELKOM"), has been authorized to operate a NMT 450 cellular
system in certain geographical areas in Jakarta and West Java, covering a
number of designated lines for a certain time. RHP requires financing to
clear up its
financial obligations and to finance the expansion of its network to
become a nationwide network and to achieve that objective the Parties have
signed an agreement entitled Amendment to the Business Agreement on 17
April 1995 (the "Amended Business Agreement");
(C) To implement to the Amended Business Agreement, the Parties have submitted
a Model II.C Application to Badan Koordinasi Penanaman Modal (the
Investment Coordinating, Board - "BKPM") for the conversion of RHP into a
limited liability company established under Indonesia's Foreign Investment
Law No. 1/1967, as amended, and all implementing regulations relating
thereto, and further, IWC and DSD have effected the first funding of
US$5,000,000 each as committed for Phase I of the Implementation Plan in
the Amended Business Agreement;
(D) The Parties have acquired the approval of the competent authorities to
change the status of RHP to become a foreign investment company within the
framework of Law No. 1 Year 1967, as amended, pursuant to:
(a) Letter of Approval of the State Minister for the Mobilization of
Investment Fund/Chairman of BKPM No. 22/V/PMA/1995 dated 26 May 1995;
and
(b) Letter from BKPM No. 1226/A.6/1995 dated 28 September 1995 on
Amendment of Composition of Ownership of Foreign and Indonesian
Partners.
(E) BRP, RHP, Xxxx Atlantic Indonesia, Inc. and PT Panutan Duta have entered
into but have not yet fully implemented a Joint Venture Agreement dated 21
April 1993, which agreement, together with its related agreements, have
been terminated pursuant to a Sale and Termination Agreement dated 1
October 1995.
NOW THEREFORE, the Parties agree as follows:
1. PURPOSE OF THE AGREEMENT; CONVERSION OF RHP
1.1 The purpose of this Agreement is to set forth the terms and conditions of
(i) the Parties' respective financial investments in RHP; (ii) the
agreements of the Parties relating to capitalization, share transfers,
management and operation of RHP; and (iii) certain other matters.
1.2 Concurrently with execution of this Agreement, BRP and RHP shall convene an
extraordinary general meeting shareholders of RHP with an agenda including
the following matters, without limitation:
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(a) to increase RHP's authorized capital from Rp.1.000.000.000,00 to
Rp.25.000.000.000,00 (or equivalent value of US$11,061,947) and,
issue that authorized capital to the Parties in the proportions as
described in Article 2;
(b) to amend RHP's Articles of Association to become in form and
substance as attached hereto as Exhibit A (such amended Articles of
Association, the "Amended Articles of Association"). BRP and RHP
shall take such steps as are appropriate and reasonable to assure
that the Amended Articles of Association are filed with and approved
by all necessary governmental authorities.
2. CAPITAL OF RHP
2.1 Upon approval by the Minister of Justice to the Amended Articles of
Association:
(a) RHP shall have authorized capital ("Authorized Capital") of
Rp.25.000.000.000,00 - twenty five billion Rupiah (or equivalent
value of US$11,061,947.00 - eleven million sixty one thousand nine
hundred and forty seven United States Dollar), divided into 25,000
(twenty five thousand)registered shares ("Shares"), each share having
a nominal value of Rp.1.000.000,00 - one million Rupiah (or
equivalent to US$442.00 - four hundred and forty two United States
Dollar). The Parties acknowledge that the exchange rate to be used
to determine the Rupiah equivalent of the corresponding value in
United States dollar under this Agreement will be Rp.2.260,00
equivalent to US$1.00;
(b) IWC and DSD have effected the second funding by IWC and DSD, as
required in the Amended Business Agreement, in the amount of:
(i) US$5,000,000 (five million United States Dollar) from IWC, the
receipt of which is hereby acknowledged; and
(ii) US$5,000,000 (five million United States Dollar) from DSD, the
receipt of which is hereby acknowledged,
and RHP shall cause these amounts to be converted to 6,250 shares of
the Authorized Capital in the name of IWC and DSD, respectively,
amounting to Rp.6.250.000.000,00 - six billion two hundred and fifty
million Rupiah (or equivalent to US$2,765,487 - two million seven
hundred and sixty, five
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million four hundred and eighty seven United States Dollar) of
nominal value for each of IWC and DSD; and
(c) BRP, in addition to its current shareholding, shall subscribe to
11,500 shares of the Authorized Capital, amounting to Rp.
00.000.000.000,00 eleven billion five hundred million Rupiah (or
equivalent to US$5,088,496 - five million eighty eight thousand four
hundred and ninety six United States Dollar) of nominal value.
2.2 The registered shareholding and ownership of RHP upon the occurrence of all
the events specified in Article 2.1 shall become as follows:
BRP: 12,500 shares (50% of the total outstanding Shares)
IWC: 6,250 shares (25% of the total outstanding Shares)
DSD: 6,250 shares (25% of the total outstanding Shares)
3. PRIOR TO APPROVAL OF THE AMENDED ARTICLES OF ASSOCIATION
3.1 In addition to the provisions of this Agreement, which shall be applicable
to the Parties as of the execution hereof, as of the execution of the
Amended Articles of Association, the relationship between the Parties shall
also be governed by the Amended Articles of Association.
3.2 Upon execution of the Amended Articles of Association, but prior to its
approval by the Minister of Justice (the "Transition Period"):
(a) any references to shareholders shall be applicable to the Parties in
accordance with the shareholding ratios set out in Article 2.2, and
any references to meetings of shareholders shall mean meetings of the
Parties as new shareholders;
(b) any references herein to the Direksi and its members shall be
applicable to the persons appointed in the Amended Articles of
Association as the new Direksi, whose members shall serve as the
Transitional Management Board in managing the affairs of RHP, having
the same function as the Direksi and its members according to the
Amended Articles of Association;
(c) any references herein to the Dewan Komisaris and its members shall be
applicable to the persons appointed in the Amended Articles of
Association as the new Dewan Komisaris, whose members shall serve as
the Transitional Supervisory Board in
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supervising the management of RHP, having the same function as the
Dewan Komisaris and its members according to the Amended Articles of
Association;
3.3 To give legal effect to the authority of the respective Transitional
Management Board and the Transitional Supervisory Board, it is agreed that
immediately upon the commencement of the Transition Period:
(a) the members of the Direksi of RHP who were elected prior to conversion
shall each delegate to the Transitional Management Board sufficient
powers to manage the activities of RHP during the Transition Period.
Such delegations shall be substantially in the form of the Minutes of
Meeting as appended as Exhibit B; and
(b) the members of the Dewan Komisaris of RHP who were elected prior to
conversion shall jointly delegate to the Transitional Supervisory,
Board sufficient powers to supervise the management of RHP by the
Transitional Management Board during the Transition Period. Such
delegations shall be substantially in the form of the Minutes of
Meeting appended hereto as Exhibit C.
It is hereby agreed by BRP and RHP that such delegations of authority
during the Transition Period shall not be withdrawn without prior mutual
consent of the Parties.
3.4 Without prejudice to the delegations of authority provided for in this
Article, immediately following execution of the Amended Articles of
Association, the Direksi and Dewan Komisaris of RHP shall assist the
Transitional Management Board to obtain any license, permit or approval and
shall register with the tax and other competent authorities as required by
prevailing laws and regulations or otherwise as necessary for RHP to
undertake its business in accordance with its purposes and objectives as
set forth in the Amended Articles of Association and this Agreement.
3.5 It is agreed that during the Transition Period, RHP and BRP shall jointly,
and severally indemnify and hold harmless each of the New Shareholders for
any loss, damage or liability sustained by it or them in excess of the
capital invested by each of them as a result of any claims brought against
RHP, IWC and DSD in connection with their respective investment in or
lending to RHP except to the extent such loss, damage, liability, or claim
was the result of reckless or willful misconduct of the Party(ies) against
whom the claim is brought.
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4. FOLLOWING APPROVAL OF THE AMENDED ARTICLES OF ASSOCIATION
4.1 Immediately upon approval of the Amended Articles of Association by the
Minister of Justice, the Parties shall cause the Direksi of RHP to:
(a) register the approved Amended Articles of Association (together with
its approval by the Minister of Justice) with the District Court
having jurisdiction over RHP's domicile or in the Company Register
maintained by the Department of Trade, as applicable, having due
consideration to the enactment of the new Company Law, Law No.1 of
1995;
(b) publish the Amended Articles of Association (together with its
approval by the Minister of Justice and the registration with the
District Court or in Company Register, as applicable) in the State
Gazette of the Republic of Indonesia; and
(c) complete any other registration and obtain any other license required
by prevailing laws and regulations or required for RHP to undertake
its business in accordance with its purposes and objectives as set
forth in its Amended Articles of Association.
4.2 Not later than 60 (sixty) calendar days after approval of the Amended
Articles of Association by the Minister of Justice, the Parties shall cause
the Direksi of RHP to hold the first Extraordinary General Meeting of
Shareholders of RHP in order to:
(a) ratify the appointment of the members of the Direksi and Dewan
Komisaris of RHP appointed in the Amended Articles of Association; and
(b) decide other matters in accordance with the provisions of the Amended
Articles of Association.
4.3 It is expressly agreed that at any time before or after approval of the
Amended Articles of Association by the Minister of Justice, RHP shall only
engage in activities for which the appropriate/required registration,
approval, license or consent has been obtained and is subsisting, and RHP
shall use its best efforts to preserve its business organization intact and
will preserve the goodwill of its subscribers, suppliers and others having
business relations with it.
5. MANAGEMENT AND SUPERVISION OF THE COMPANY
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5.1 In accordance with the Amended Articles of Association, RHP shall be
managed by a Direksi consisting of 3 (three) members, under the supervision
of a Dewan Komisaris consisting of 4 (four) members.
5.2 The Parties shall cause the General Meeting of Shareholders that elects
members of the Direksi and Dewan Komisaris to elect the person recommended
by shareholder(s) entitled to nominate persons for the position concerned,
as described below:
(a) BRP shall be entitled to nominate 1 (one) member of the Direksi who
will become the President Director, while IWC and DSD shall each be
entitled to nominate 1 (one) member of the Direksi; and
(b) BRP shall be entitled to nominate 2 (two) members of the Dewan
Komisaris, including the President Komisaris, IWC and DSD will each be
entitled to nominate 1 (one) member of the Dewan Komisaris.
5.3 The quorum for meetings of the Direksi shall be 3 (three) Directors present
or represented and, except as provided in Article 5.5, the decisions of the
Direksi shall be adopted by a simple majority of the Directors present or
represented at a duly held meeting in which a quorum is present. The
meeting shall be conducted in the English language.
5.4 The quorum for meetings of the Dewan Komisaris shall be 4 (four) members
present or represented and, the decisions of the Dewan Komisaris shall be
adopted by a simple majority of the Komisaris present at a duly held
meeting in which a quorum is present. The meeting shall be conducted in
the English language.
5.5 Notwithstanding the provisions of Article 5.3, the Parties agree that the
affirmative vote of all members of the Direksi shall be required for the
following actions:
(a) designation of and change to RHP bank account signatories;
(b) loans, guarantees or trade credits to third parties in amounts
exceeding US$25,000, whether in a single or a series of related
transactions;
(c) contracts, agreements or transactions with any shareholders of RHP or
with any of their affiliated companies which involve amounts in annual
value in excess of US$75,000 in a single or a series of related
transactions;
(d) determining employee compensation guidelines;
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(e) any expenditure greater than the Rupiah equivalent of US$250,000,
provided that expenditures approved in the approved annual business
plan or approved budget shall not be regarded as expenditures for the
purpose of this provision;
(f) material amendments to the authorization policies as set forth from
time to time by the General Meeting of Shareholders;
(g) acquiring by purchase, lease or any other method movable or immovable
property having a price (in the case of leasing, an annual lease
price) in excess of the equivalent in any currency of US$250,000 (two
hundred and fifty thousand United States dollars) for any individual
transaction and US$1,000,000 (one million United States Dollars) in
the aggregate per year or such amount as otherwise approved by the
Dewan Komisaris from time to time;
(h) selling or disposing of movable or immovable property having a value
exceeding the limit from time to time determined by the Dewan
Komisaris;
(i) participating in any other business enterprise, including without
limitation establishing any subsidiary, without prejudice to any
approvals that may be required from competent authorities;
(j) establishing lines of credit or other credit facilities; and
(k) entering into, amending or terminating contracts in which the goods
and/or services to be purchased, sold or leased having a value in
excess of the equivalent in any currency of US$250,000 (two hundred
and fifty thousand United States dollars) for any individual
transaction and US$1,000,000 (one million United States dollars) in
the aggregate per year, or such amount as otherwise approved by the
Dewan Komisaris from time to time;
5.6 The Direksi shall represent RHP within and outside the Courts of Justice
with regard to all matters and is entitled to take all actions pertaining
to management and ownership affairs. Prior approval by the Dewan Komisaris
either in a meeting or by circular resolution in lieu of meeting shall be
required for the following actions:
(a) borrowing any money (provided that drawing money from an established
credit or loan account which has been so
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approved shall not be regarded as borrowing for the purpose of this
provision);
(b) binding RHP as guarantor and/or extending loans to or on behalf of
third parties;
(c) granting any hypothecation, fiduciary transfer of proprietary rights
for security purposes, pledge or other security interest or priority
claim in any property or assets of RHP;
(d) issuing interim dividends;
(e) transferring, acquiring or granting any licenses, sublicenses or
rights with respect to telecommunication technology, technical know-
how, trade secrets, patents, copyrights, trademarks, tradenames or
other intellectual property;
(f) undertaking any new business or substantially expanding any existing
business;
(g) issuance of securities by RHP on a stock exchange;
(h) writing off any accounts receivables or releasing any claims of RHP.
5.7 The Parties agree that, subject to compliance with the Articles of
Association, RHP's assets may be used to secure RHP's obligations with
respect to any borrowed money or other credit facilities. Each party
agrees that, should any shareholder guarantees be required to secure such
additional financing, each party will guarantee that percentage of such
financing as equals its percentage share ownership of RHP.
5.8 On or before November 1 of each calendar year, the Direksi shall finalize:
(i) the annual business plan, (ii) the annual budget, including capital and
operating expenditures; and (iii) the annual marketing plan. Adoption of
these plans by the meeting of Direksi shall be by majority vote.
5.9 Except as otherwise agreed in accordance with Article 5.5, the designated
Chief Operating Officer (COO) shall be authorized by the Direksi to be the
joint signatory along with the President Director on all bank accounts of
RHP. The Parties agree to cause the Direksi to adopt all such measures and
execute all such authorizations, documents and delegations of authority as
are required to implement at an effective management level the
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authorization policy with respect to purchase commitments, payment
authorization and disbursements.
5.10 With respect to participation in any other business enterprise in which
RHP has an equity interest, the Parties agree that participation in and
exercise of any management decision making at the Direksi level and
participation in and exercise of any supervisory functions at the Dewan
Komisaris level in any such enterprises by RHP shall at all times evidence
a single voting block reflecting the affirmative approval of all Parties.
6. REPRESENTATION AND WARRANTIES
6.1 Each of the Parties hereby represents and warrants as follows:
(a) this Agreement shall constitute its legally binding obligation;
(b) there is no provision of any existing law, rule, mortgage, indenture,
contract, financing statement, agreement or resolution binding on it
that would conflict with or any way prevent the execution, delivery,
or carrying out of the terms of this Agreement or any other document
or agreement referred to herein; and
(c) each of the Parties shall comply with the provisions of all applicable
national, federal, state, provincial, and local laws, ordinances, and
regulations of the United States of America and the Republic of
Indonesia, as applicable, and any other governmental entity having
jurisdiction over the activities being carried out under this
Agreement, including without limitation all provisions of the United
States Foreign Corrupt Practices Act (the "Act"). In addition, each
of the Parties represents and warrants neither it nor its affiliates,
nor any officer, director, shareholder, representative, employee, or
agent thereof, has made or will make, or cause to be made, in
connection with this Agreement and the course of action contemplated
by it, any payments, loans or gifts of any money or anything of value,
directly or indirectly, (i) to or for the use or benefit of any
official or employee of any government, (ii) to any political party or
official or candidate thereof, (iii) to any other person either for an
advance or reimbursement if it knows that any part of such payment,
loan or gift will be directly or indirectly given or paid by such
other person, or will reimburse such other persons for payments, gifts
or loans previously made, to any governmental official or political
party, or candidate of official thereof, or (iv)
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to any other person or entity, the payment of which would violate the
laws, or regulations having the force of law, of the United States of
America or the Republic of Indonesia or any other governmental entity
having jurisdiction over the activities being carried out under this
Agreement.
6.2 RHP and BRP each represent and warrant to the New Shareholders that:
(a) as at the date of this Agreement, RHP has authorized and issued
capital of Rp. 1.000.000.000,00 (one billion Rupiah) representing
1.000 (one thousand shares) with a nominal value of Rp. 1.000.000,00
(one million Rupiah) per share, with BRP being registered holder of
1000 shares or 100%, and that there are no outstanding subscriptions,
options, warrants, rights, convertible securities, or other agreements
or commitments obligating RHP to issue any shares of or other equity
interests in, or securities or rights convertible into or exchangeable
for shares of or other equity interests in RHP, except as provided in
the Amended Business Agreement and this Agreement;
(b) RHP's financial statements consisting of income and loss statements
for the years ending 31 December 1993 and 31 December 1994, audited by
Drs. Siddharta & Siddharta, a registered public accountant and
attached hereto as Exhibit D present fairly the financial condition,
assets, liabilities, obligations and results of operations of RHP as
of their respective dates and periods, and are correct and complete in
all material respects, and have been prepared in accordance with
generally accepted accounting principles. Except as disclosed in
those financial statements, there are no undisclosed liabilities of
RHP;
(c) RHP has good and valid title to all of the assets reflected in the
Financial Statements referred to in sub-paragraph (b) above, and such
assets constitute all of the assets at any time owned by RHP relating
to or usable in connection with its business;
(d) the total outstanding liabilities (including tax liabilities, but
excluding the amount set forth in Exhibit E) of RHP is as set forth in
the financial Statements referred to in sub-paragraph (b) above. Any
liabilities in excess of such amounts listed in Exhibits D and E shall
be the sole responsibility of BRP; and
(e) all monies owed, if any, by RHP to its former shareholders, is fully
repaid, except for the amounts referred to in the
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Tahir Debt Repayment Schedule attached as Exhibit E, which shall be
paid by RHP.
6.3 The Parties covenant that the foregoing representations and warranties
shall be true and accurate as of the date of this Agreement, it being
understood that each and all of the RHP and BRP indemnifications,
representations and warranties provided in this Agreement are of the joint
and several nature.
7. TRANSITION PERIOD BUSINESS PLAN AND BUDGET
7.1 Promptly but in any event no later than 30 (thirty) days following the
commencement of the Transition Period, the Transitional Management Board
shall submit to the New Shareholders for their review and approval a
business plan.
7.2 The business plan shall be a plan for the implementation, expansion and
operation of RHP's business and shall include, at a minimum, the following
items:
(a) Schedules for the expansion of the NMT 450 Mhz cellular system and of
any additional lines and any other areas of RHP's business;
(b) Schedules for the procurement of supplies, equipment and services by
RHP;
(c) Schedules of the staffing requirements of RHP;
(d) Schedules of the capitalization and financing requirements of RHP;
(e) Schedules and descriptions of marketing and sales projections and
strategies;
(f) Schedules for the pricing of services provided by RHP; and Schedules
and descriptions of projected financial results of RFIP; and
(g) Recommendations for the dividend policy for the current fiscal year.
8. PRE-CONVERSION EXPENSES
8.1 The following pre-conversion expenses shall be borne by RHP:
(a) all fees and expenses of the notary in Indonesia relating to the
execution of the Amended Articles of Association, the
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application to the Ministry of Justice for approval to the Amended
Articles of Association, and for obtaining such approvals, and any
other documents or actions related to the foregoing;
(b) any fees, taxes, duties or other costs relating, to any matter
referred to in points (a); and
(c) any other expenses that the General Meeting of Shareholders of RHP
determines to be treated as pre-conversion expenses of RHP.
8.2 All other expenses in respect to this Agreement incurred by each party
shall be borne by such party, including without limitation:
(a) all fees and expenses of their respective legal counsel relating to
the preparation and execution of this Agreement, the Amended Articles
of Association or any agreement referred to herein or relating to the
conversion of RHP and any agreements to be entered into by RHP and
third parties which are related to this conversion; and
(b) any fees, taxes, duties or other costs relating to any matter referred
to in paragraph (a) above.
9. DISTRIBUTION OF PROFITS DURING TRANSITION PERIOD
During the Transition Period and within 20 (twenty) days following the end
of each fiscal quarter, the Direksi shall determine the amount of
Distributable Cash (as defined below) of RHP for such quarter and shall
distribute, unless otherwise agreed to in writing by the Parties, the whole
amount in the following manner:
(a) during the Transition period, to each of the Parties in accordance
with their respective investment interests in RHP as reflected in
Article 2.2 of this Agreement; and
(b) following the Transition Period, in accordance with their respective
shareholding interest in RHP and pursuant to the provisions on
dividends contained in the Amended Articles of Association.
The term "Distributable Cash" shall only be applicable during the
Transition Period and shall mean undistributed net earnings of XXX.
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00. FINANCIAL POLICY
10.1 Access to the Books, Records and Facilities
Each party and its representatives shall have full and complete access to
the books, records and facilities of RHP at any time during normal business
hours and upon reasonable notice for the purpose of inspection, examination
and copying or any other reasonable purpose, and the cooperation of RHP and
the members of the Dewan Komisaris and Direksi and employees shall be
extended for such purposes. The financial statements of RHP shall be kept
in the English language to the extent deemed cost-effective by the Direksi
and as permitted under applicable laws. The minutes of corporate meetings
of the Direksi, Dewan Komisaris and General Meeting of Shareholders shall
be kept in the English language.
10.2 Financial Policy Control and Reporting
(a) Reports. For purposes of adequately informing the Parties, the
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Direksi shall be charged to provide each party with the following:
(i) monthly financial statements of RHP, including an income
statement and a statement of cash flows and a balance sheet
(collectively the "Financial Statements"), not later than 10
(ten) working days after the end of the following month. This
monthly financial statement shall include summary financial and
operating data, an explanation of any major budget variances, as
well as discussion of operational challenges and accomplishments
and the delineation of key issues under consideration by the
Direksi.
(ii) not later than 90 (ninety) days after the end of each fiscal
year, audited annual Financial Statements of RHP prepared in
accordance with generally accepted accounting principles
consistently applied together with an unqualified opinion of
RHP's Auditor (as defined below) and accompanied by supplemental
schedules showing any adjustments required in such Financial
Statements that would be required in order to conform such
Financial Statements to United States' generally accepted
accounting principles;
(iii) by the end of each fiscal year the annual business plans
prepared by the Direksi; and
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(iv) such other records, reports and data as each party may reasonably
request for compliance with its legal and contractual
obligations.
(b) Fiscal Year; Books of Account. RHP shall have a calendar fiscal year.
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RHP shall keep full and accurate books of account, which shall be kept
in accordance with generally accepted accounting principles. At the
end of each fiscal year of RHP, the books shall be examined at RHP's
expense by RHP's external public auditor (the "Auditor"). The Auditor
shall be appointed by the Parties at an Annual General Meeting of
Shareholders from among recognized accounting firms licensed in
Indonesia which have an international affiliation.
(c) Tax Matters. The Direksi shall approve all tax elections and tax
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accounting methods adopted by RHP for income tax purposes, and all
agreements and settlements proposed to be entered into with the
Indonesian government as a result of an audit or examination of RHP's
Indonesian tax returns.
(d) Other. Any party may at its own expense conduct periodic compliance
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audits of RHP with respect to, by way of illustration only in the case
of the New Shareholders, matters relating to the Act, MFJ, U.S. export
control regulations and company employee codes of conduct. It is
further agreed that if reporting for financial, tax, corporate, or
legal compliance matters should become particularly onerous and for
the benefit solely of one of the Parties, then the Direksi shall be
entitled to xxxx such services rendered to the party concerned based
on a calculation of reasonable costs under the circumstances.
11. CONFIDENTIALITY AND NON-DISCLOSURE
11.1 The Parties shall maintain in confidence the contents of this Agreement
and shall not disclose the same, or any part hereof, without the written
consent of the other Party(ies), except as may be otherwise required by
law, regulation or effective government policy.
11.2 All Proprietary Information disclosed by one party to the other in the
course of performing this Agreement shall remain the property of and be
deemed proprietary to the disclosing party. For purposes of this Article
11, "Proprietary Information" shall mean any technical data, including
computer software and computer programs, design information, architectural
drawings, customer usage patters, engineering diagrams or any other similar
15
information in tangible or recorded form, or other non-public, confidential
or proprietary information in tangible form, including marketing data and
business plans, or any know how and other intangible information, which is
disclosed by one party to the other in the course of performing this
Agreement, and which, if in tangible form, is stamped or otherwise marked
to indicate its confidential nature or, if in intangible form, is confirmed
in writing as confidential or proprietary information within ten (10)
business days of disclosure. The receiving party agrees: (a) to receive
and hold such Proprietary Information in strict confidence; (b) to accord
such Proprietary Information the protection that major U.S. corporations
customarily accord their own closely held, confidential and proprietary
information; (c) to hold such Proprietary Information in trust for the
disclosing party; and (d) to use such Proprietary Information solely and
exclusively in accordance with the terms of this Agreement in order to
carry out the purposes of RHP. Except as otherwise provided in this
Agreement, nothing contained in this Agreement shall be construed as
granting or conferring any rights by license or otherwise in any
Proprietary Information disclosed hereunder. No disclosure of any
Proprietary information pursuant to this Article 11 shall be construed as a
public disclosure of such Proprietary Information by either party for any
purpose whatever.
11.3 Notwithstanding the provisions of Article 11.1, neither party shall he
liable for disclosure or use of Proprietary Information belonging to any
other party if the same:
(a) was properly in the public domain at the time it was disclosed;
(b) was properly known to and available for use by the receiving, party
and recorded as such in its files at the time of receipt;
(c) is proven by the receiving party by appropriate documentation to have
been independently developed by the receiving party;
(d) is proven by the receiving party by appropriate documentation to have
become properly known to the receiving party from a source other than
the disclosing party without breach, to the knowledge of the receiving
party, of any confidentiality obligation by the receiving party; or
(e) is publicly released in response to a subpoena, court order or other
legal process under circumstances in which a protective order or
confidentiality agreement has been
16
requested but rejected by the appropriate judicial or other lawful
authority.
11.4 Notwithstanding the provisions of Article 12, the provisions of this
Article 11 shall continue to apply for a period of two (2) years:
(a) to each of the Parties and to any individual or entity who becomes a
party to this Agreement after such party, individual or entity is no
longer a party, hereto; or
(b) if this Agreement is terminated, expired or canceled.
Further, it is agreed that upon termination, expiration or cancellation of
this Agreement, the receiving party shall, at the disclosing party's
option, return or destroy all Proprietary Information received from the
disclosing party, and shall destroy all analyses, compilations, forecasts,
studies and other documents based upon such Proprietary Information, to the
extent they include Proprietary Information. The restrictions contained
herein on the disclosure or use of information shall survive through the
termination, expiration or cancellation of this Agreement, regardless of
the manner in which this Agreement is terminated, expired or canceled.
11.5 The foregoing provisions of Article 11 shall not be interpreted to prevent
any party, provided that it is entitled under the Amended Articles to sell
all or any of the Shares it owns to third parties, from disclosing to
potential third party purchasers information relating RHP and its
operations so long as prior to the disclosure the party intending to sell
the Shares has obtained in writing an agreement from the third party not to
disclose such information to other persons, and to use such information
only for the purpose of evaluating whether or not to acquire the Shares
being offered for sale.
12. EFFECTIVE DATE; TERM AND TERMINATION
12.1 This Agreement shall become effective on the date of the occurrence of the
last of the following events (the "Effective Date"):
(a) this Agreement shall have been executed by all the Parties; and
(b) this Agreement and the transactions contemplated hereby shall have
received the requisite corporate approvals of the New Shareholders;
17
and shall remain in effect as to each individual or entity who is or
becomes a party as long as such individual or entity funds shares in RHP;
12.2 This Agreement may be terminated at any time upon agreement of all persons
or entitles who are Parties. The Parties expressly waive Article 1266 of
the Indonesian Civil Code to the extent necessary to effect termination of
this Agreement as provided herein without judicial involvement.
12.3 Should one party (referred to in this Article 12.3 as the "Defaulting
Shareholder"):
(i) enter into any voluntary arrangements with creditors, appoint
receivers or liquidators, become insolvent, file, or have filed
against it a petition to be declared bankrupt or be the subject of a
similar proceeding, which petition is not revoked, or lifted or denied
by the court, within 60 (sixty) calendar days after the date such
petition was filed; or
(ii) breach any provision of this Agreement that has a material impact on
RHP's ability to perform its business or which jeopardizes the rights
of Parties not in breach as contemplated hereunder, and which breach
is not cured within 60 (sixty) calendar days after written notice to
cure from any other party; or
(iii)breach any material provision of any other agreement with RHP, which
breach is not cured within 60 (sixty) calendar days after written
notice to cure from any other party;
then, subject to applicable laws and regulations, the party(ies) who is
(are) not so insolvent, in bankruptcy proceedings, or in breach shall be
entitled, at its (their) option and upon written notice to the Defaulting
Shareholder, to purchase (or cause its (their) lawful designee to purchase)
on a pro rata basis the shares of RHP held by the Defaulting Shareholder at
a price and on terms and conditions in accordance with the provisions on
transfer of shares set forth in the Articles of Association. In the event
there is more than one party not insolvent, in bankruptcy proceedings or in
breach, such parties shall determine by vote whether to exercise the rights
hereunder, with each such party being entitled to vote in accordance with
the number of shares it owns.
12.4 The Parties further agree that:
18
(a) if the Parties in good faith conclude that the continuation of RHP no
longer will be feasible because of a deadlock in the Direksi or Dewan
Komisaris; or
(b) if legal or political reasons arise in the USA or in the Republic of
Indonesia which have a material adverse financial effect on RHP;
then the Parties will discuss the means of winding up the Company. If the
Parties are unable to agree within 90 (ninety) days as to the manner in
which the assets of RHP are to be distributed to the Parties, then RHP
shall be dissolved and all of the assets owned by RHP shall be liquidated
and sold and the proceeds realized from liquidation distributed in
accordance with the procedures set forth in the Amended Articles of
Association and Indonesian company law.
13. ARBITRATION
13.1 The Parties each agree that any dispute arising out of or in connection
with this Agreement, including without limitation any question regarding
its existence, validity, termination, or the rights or obligations of
either of them, that cannot be settled amicably within 30 (thirty) days
after it has been first raised in writing shall be settled by arbitration
under the Arbitration Rules of the Singapore International Arbitration
Center (the "Rules") and the provisions of this Article 13.
13.2 The arbitration shall be conducted in Singapore at the facilities of the
Singapore International Arbitration Center by three arbitrators appointed
in accordance with the Rules. Any notice of arbitration, response or other
communication given to or by a party to the arbitration shall be given and
deemed received as provided in the Rules. The costs of the arbitration
shall be determined and paid by the parties to the arbitration as provided
in the Rules.
13.3 The Parties agree not to institute any legal proceedings arising out of or
in connection with this Agreement, except only as provided in this Article
13 and then only to enforce in any court having jurisdiction any award
rendered by the arbitrators. In the event any legal proceedings are
instituted in any court to enforce any arbitration award, the party against
whom enforcement of that arbitration award is sought shall pay all costs,
including without limitation the costs of legal counsel and translation
fees, of the party seeking to enforce the arbitration award.
19
14. GENERAL PROVISIONS
14.1 Throughout the term of this Agreement, neither BRP or any of its
affiliates shall, whether alone or in conjunction with any third party, in
any manner, without the prior written consent of the other Parties,
participate, either directly or indirectly, in the ownership, financing,
implementation, expansion or operation of wireless communications,
transmission, manufacturing or distribution services in Indonesia, except
through RHP in accordance with this Agreement.
14.2 Neither this Agreement nor any interest herein may be assigned, in whole
or in part, by any party without the prior written consent of each of the
other parties, except that without securing such prior consent but upon
advance written notice, IWC shall have the right to assign this Agreement
to any of their affiliates.
14.3 All notices, requests, consents, demands and other communications required
or contemplated under this Agreement ("Notices") shall be in writing and
(i) personally, delivered, or (ii) sent by air courier (for delivery within
4 (four) business days after sending), shipping prepaid, or (iii) sent by
facsimile transmission, addressed as follows:
If to BRP, addressed to:
PT BINA REKSA PERDANA
Arthaloka Building, 14th Floor
Xxxxx Xxxxxxxx Xxxxxxxx Xx. 0
Xxxxxxx, Xxxxxxxxx
Facsimile: (00-00) 0000-000
Attention: President Director
If to IWC, addressed to:
INTERNATIONAL WIRELESS COMMUNICATIONS
000 Xxxxx Xx Xxxxxx Xxxx, Xxxxx 0000
San Mateo, California 94402
United States of America
Facsimile:
Attention:
If to DSD, addressed to:
PT DELTONA SATYA DINAMIKA
Setiabudi Building II, Floor 3A
Xx. XX Xxxxxx Xxxx
00
Xxxxxxx 00000, Xxxxxxxxx
Facsimile: (62-21)
Attention: President Director
If to RHP, addressed to:
PT RAJASA HAZANAH PERKASA
Wisma Pejaten
Xx. Xxxxxxx Xxxxx Xx.0, Xxxxx Xxxxxx
Xxxxxxx 00000, Xxxxxxxxx
Facsimile: (00-00) 0000 000
Attention: Director (Chief Operating Officer)
or such other persons or address as any party may request by notice given
as aforesaid. Notices shall be deemed given and received at the time of
personal delivery or, if sent by air courier, 4 (four) business days after
such sending, or if sent by facsimile transmission, 1 (one) business day
after the transmission. All notices and other communications among the
Parties Hereunder shall be in the English language.
14.4 This Agreement shall be exclusively governed by and construed in
accordance with the laws of the Republic of Indonesia, regardless of its
place of negotiation, execution or performance and regardless of any
conflicts of laws or rules which would require the application of the laws
of another jurisdiction, except for matters which pertain to the MFJ (as
defined below) which shall be construed in accordance with the laws of the
United States.
14.5 Each of the Parties acknowledges that IWC and its parent company are
subject to the Modified Final Judgment ("MFJ") as entered in United States
v. American Telephone & Telegraph Co. CA.82-0192, August 25, 1982, and as
amended from time to time. The Parties agree that they will take any and
all such actions as they are reasonably able to take to ensure that IWC's
share ownership in RHP and participation in the transaction contemplated in
this Agreement does not cause it to be in violation of the MFJ.
14.6 This Agreement shall be binding upon the Parties and their successors and
permitted assigns.
14.7 The provisions of this Agreement shall be deemed severable, and if any
part of any provision is held to be illegal, void, voidable, invalid, non-
binding or unenforceable in its entirety or partially or as to any party,
for any reason, such provision may be changed, consistent with the intent
of the Parties, to the extent reasonably, necessary, to make the provision,
as so changed, legal, valid, binding and enforceable. If any provision
21
of this Agreement is held to be illegal, void, voidable, invalid,
non-binding or unenforceable in its entirety or partially or as to any
party, for any reason, and if such provision cannot be changed consistent
with the intent of the Parties to make it fully legal, valid, binding and
enforceable, then such provision shall be stricken from this Agreement if
doing so would not change the basic intent of the Parties, and (if such
provision is so stricken) the remaining provisions of this Agreement shall
not in any way be affected or impaired, but shall remain in full force and
effect. To the extent permitted by applicable law, the Parties waive any
provision of law which renders any provision hereof unenforceable in any
respect.
14.8 No party (the "Non-performing Party") shall be in default or otherwise
liable for any delay in or failure of its performance under this Agreement
where such delay or failure arises by reason of any act of God, fire,
xxxxx, xxxxxxx, flood, earthquake, riot, civil commotion, civil war,
rebellion, revolution, insurrection, military or usurped power, aircraft,
strikes, labor disputes, or other similar cause beyond the control of the
Non-performing Party; provided, however, that the delay or failure in
performance could not have reasonably been foreseen or provided against by
the Non-Performing Party; and provided further that the Non-Performing
Party exercises such diligence as the circumstances may require. In the
event a force majeure condition occurs which prevents performance by the
Non-Performing Party for sixty (60) days or longer, then this Agreement or
the affected part thereof shall, at the option of the party adversely
affected by the force majeure condition, be suspended for the duration of
the force majeure condition.
14.9 This Agreement, together with its Exhibits and the Amended Business
Agreement supersede any other written agreements, letters of intent,
memoranda of understanding and any other written understandings or oral
arrangements among the parties. Changes, modifications, amendments,
supplements, alterations and additions to this Agreement shall be mutually
agreed in writing. The representations, warranties, covenants and
agreements contained in this Agreement are for the sole benefit of the
Parties, their permitted successors and assigns and they shall not be
construed as conferring any rights on any other persons.
14.10 Each of the Parties shall be deemed at all times to be an independent
contractor and as such, during the term of this Agreement, its employees
shall at all times remain under its sole control. The Parties shall not
be deemed to be partners or joint venturers or agents of each other for
any purpose whatsoever or to be sharing profits and losses arising out of
22
the efforts of any such Parties except to the extent provided in this
Agreement.
14.11 No licenses, express or implied, under any patents, copyrights, trade
secrets, trademarks, service marks or other intellectual property rights
are granted by any party or any of its affiliates under this Agreement.
RHP shall not adopt or register any trademarks, trade names or service
marks which are identical or confusingly similar to, or imitations of,
those of any of the Parties or any of their affiliates, without the
express written consent of the relevant party or the relevant affiliate.
14.12 A waiver by any party of any right it may have under this Agreement shall
be effective only if made expressly and in writing duly signed by the
party granting the waiver. The failure of any party to insist, in any one
or more instances, on performance of any of the terms or conditions of
this Agreement shall not be construed as a waiver or relinquishment of any
rights granted under this Agreement or of the future performance of any
such term, covenant or condition, but the obligations of the Parties with
respect thereto shall continue in full force and effect.
14.13 The headings contained in this Agreement have been inserted for the
convenience of reference only, and neither such headings nor the placement
of any term hereof under any particular heading shall in any way restrict
or modify any of the terms or provisions hereof. Terms used in the
singular shall be read in the plural, and vice versa, and terms used in
the masculine gender shall be read in the feminine or neuter gender, when
the context so requires. The term "person" as used herein refers to a
natural person, a corporation, a partnership, a joint venture or joint
operation, a limited liability company, a governmental entity or agency,
or other company, entity or association, as the context requires.
14.14 The Parties shall promptly take the necessary actions and execute such
further or other documents in such manner as to ensure that the
provisions, intent, and spirit of the Amended Business Agreement, this
Agreement and the Amended Articles of Association shall be complied with
and carried into full effect. The Parties shall also exercise good faith
at all times in the course of performing the agreements set forth in this
Agreement.
23
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives as of the day and year first written
above.
PT RAJASA HAZANAH PERKASA Approved
By /s/ Xxxxx Xxxxxxxxx By /s/ Hutomo Mandala Putra
------------------------------ ------------------------------
Name : Xxxxx Xxxxxxxxx Name : Hutomo Mandala Putra
Title : Director Title : Komisaris
PT BINA REKSA PERDANA Approved
[Seal]
By /s/ Xxxxx Xxxxxxxxx By /s/ Hutomo Mandala Putra
------------------------------ ------------------------------
Name : Xxxxx Xxxxxxxxx Name :
Title : President Director Title : President Komisaris
INTERNATIONAL WIRELESS PT DELTONA SATYA DINAMIKA
COMMUNICATIONS
By /s/ Xxxx Xxxxxx By /s/ Amir Xxxxx Xxxxxxx
------------------------------ ------------------------------
Name : Xxxx Xxxxxx Name : Amir Xxxxx Xxxxxxx
Title : Attorney-in-Fact Title : Director
24
Exhibit A
Minutes of the Extraordinary General Meeting of
Shareholders of PT Rajasa Hazanah Perkasa
TABLE OF CONTENTS
Page
----
1. NAME AND DOMICILE...................................... 4
2. TIME OF INCEPTION AND DURATION......................... 4
3. PURPOSES AND OBJECTIVES................................ 4
4. CAPITAL................................................ 4
5. SHARES................................................. 7
6. REPLACEMENTS........................................... 8
7. REGISTER OF SHAREHOLDERS............................... 8
8. TRANSFER OF SHARES..................................... 9
9. MANAGEMENT............................................ 12
10. POWERS OF THE DIREKSI................................. 13
11. MEETINGS OF THE DIREKSI............................... 16
12. THE DEWAN KOMISARIS................................... 17
13. POWERS OF THE DEWAN KOMISARIS......................... 18
14. MEETINGS OF THE DEWAN KOMISARIS....................... 19
15. FINANCIAL YEAR AND ACCOUNTS........................... 21
16. GENERAL MEETINGS OF SHAREHOLDERS...................... 21
17. ANNUAL GENERAL MEETINGS OF SHAREHOLDERS............... 22
18. EXTRAORDINARY GENERAL MEETINGS OF SHAREHOLDERS........ 22
19. PLACE AND NOTICE OF GENERAL MEETINGS OF SHAREHOLDERS.. 23
20. CHAIRPERSON OF THE GENERAL MEETINGS OF SHAREHOLDERS... 23
21. RESOLUTIONS AND VOTING RIGHTS AT THE GENERAL MEETINGS
OF SHAREHOLDERS....................................... 24
22. APROPRIATION OF PROFITS; DIVIDENDS.................... 25
23. RESERVE FUND.......................................... 26
24. AMENDMENT OF THE ARTICLES OF ASSOCIATION.............. 26
25. DISSOLUTION........................................... 27
26. MISCELLANEOUS PROVISIONS.............................. 27
1
MINUTES OF
THE EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS OF
PT RAJASA HAZANAH PERKASA
NUMBER:
On this day, ,the day of one thousand nine hundred and (__-__-19__),
at____________ (Western Indonesia Time).
At the request of the Direksi of the limited liability company, PT RAJASA
HAZANAH PERKASA (hereinafter referred to as the "Company"), domiciled in
Jakarta, the Articles of Association of which as contained in Deed No.22,
dated 17 December 1984, passed before Pariwondo Soekarno, Notary in
Jakarta, which Deed was approved by the Minister of Justice by his Decision
Letter No. X0-0000.XX.00.00.Xx'85, dated 8 May 1985, registered at the
District Court of South Jakarta under Registration Number 503/Not/1985/PN
JKT.SEL, dated 24 July 1985, and published in the State Gazette No.82,
dated 14 October 1986, Supplement No. 1 199, and lastly amended by Deed No.
15, dated 10 May 1985, as amended by Deed No.34, dated 14 August 1985, both
passed before Pariwondo Soekarno, Notary, in Jakarta, which were approved
by the Minister of Justice by his Decision Letter No.C2-
0000.XX.00.00.Xx'85, dated 29 October 1985, registered at the District
Court of South Jakarta under Registration Numbers 770 and 771/Not/1986/PN
JAKSEL, dated 10 September 1986, and published in the State Gazette No. 82,
dated 14 October 1986, Supplement No. 1200.
I, ___________, Notary in Jakarta, in the presence of witnesses known to me,
Notary, and whose names will be mentioned at the end of this Deed, was, at
___________,Jakarta, in order to draw up the minutes of all matters to be
discussed and resolved in an Extraordinary General Meeting of Shareholders of
the Company convened on the day, date, time and at the place as mentioned above
(hereinafter referred to as "Meeting").
Present in this Meeting and therefore appeared before me, Notary, in the
presence of witnesses, whose name will be mentioned at the end of this Deed:
1. Mister Xxxxx Xxxxxxxxx, businessman, residing in Jakarta, Jalan ___________
Jakarta, according to his statement in this matter acting in his capacity
as Director of the Company;
2. Mister Xxxxx Xxxxxxxxx, businessman, residing in Jakarta, Jalan ___________
Jakarta, according to his statement is a Director and therefore in this
matter acting on behalf of PT Bina Reksa Perdana ("BRP") the owner and
holder of 1000 shares of the
Company, which represents 100% of the total shares issued and existing up
to this day; and
3. Mister Xxxx XxXxxxx, businessman, temporarily residing in Jakarta, a
Director and therefore acting for and on behalf of the limited liability
company International Wireless Communications ("IWC") established under the
laws of the of the State of Delaware, United States of America, with
offices at 000 Xxxxx Xx Xxxxxx Xxxx, Xxxxx 0000, Xxx Xxxxx, Xxxxxxxxxx
00000 XXX.
4. Mister _______________ businessman, residing in Jakarta, attending by
invitation of the Company, according to his statement as a Director and
therefore in this matter acting for and on behalf of PT Deltona Satya
Dinamika ("DSD"), a limited liability, company established under the laws
of the Republic of Indonesia, with offices at Setiabudi Building 11, floor
3A, Xx. XX. Xxxxxx Xxxx, Xxxxxxx 00000, Xxxxxxxxx.
The Appearer Xx. Xxxxx Xxxxxxxxx, acting in his capacity as the President
Director of the Company, pursuant to Article 17 paragraph 1 of the Articles of
Association of the Company, presided over the Meeting as Chairman of the Meeting
and opened the Meeting, and announced:
Whereas, in this Meeting were present or represented the total number of
shares of the Company issued up to this day and date amounting to 1,000
shares, each share worth 1,000,000 Rupiah nominal value; and
Whereas, therefore, pursuant to Article 16 paragraph 4 of the Articles of
Association of the Company, no prior notice for this Meeting was required
and the Meeting was legally convened and was entitled to adopt legal and
binding decisions.
Because all those present at the Meeting had been priorly informed of the
agenda of this Meeting,, the Chairman proposed to the Meeting and the
Meeting unanimously approved and, subject to the approval by the Minister
of Justice to the amendment to the Company's Articles of Association,
resolved the following resolutions:
1 RESOLVED, to approve the change of the status of the Company, to
become a Foreign Investment Company within the framework of Law No. 1
Year 1967 as amended by Law No. 11 Year 1970, pursuant to:
Letter of Approval of the State Minister for the Mobilization of
Investment Fund/Chairman of BKPM No. 22/V/PMA/1995 dated 26 May 1995;
and
2
BKPM Letter No. 1226/A.6/1995 dated 28 September 1995 on amendment of
composition of ownership of foreign and Indonesian partners.
2. RESOLVED, to approve the increase of the authorized capital of the Company
to become Rp 25.000.000.000,00 - twenty five billion Rupiah (or equivalent
value of US$11,061,947.00 - eleven million sixty one thousand nine hundred
and forty seven United States Dollar), divided into 25,000 (twenty five
thousand) registered shares ("Shares"), each share having a nominal value
of Rp 1.000.000,00 - one million Rupiah (or equivalent to US$442.00 - four
hundred and forty two United States Dollar) and FURTHER RESOLVED, to issue
new shares from that increase to
PT Bina Reksa Perdana in the amount of 11,500 new shares, having the
aggregate nominal value of Rp 00.000.000.000,00 - eleven billion five
hundred million Rupiah (or equivalent to US$5,088,496 - five million
eighty eight thousand four hundred and ninety six United States
Dollar);
International Wireless Communications in the amount of 6,250 new
shares, having the aggregate nominal value of Rp 6.250.000.000,00 six
billion two hundred and fifty million Rupiah (or equivalent to
US$2,765,487 - two million seven hundred and sixty five million four
hundred and eighty seven United States Dollar);
PT Deltona Satya Dinamika in the amount of 6,250 new shares, having
the aggregate nominal value of Rp 6.250.000.000,00 - six billion two
hundred and fifty million Rupiah (or equivalent to US$2,765,487 - two
million seven hundred and sixty five million four hundred and eighty
seven United States Dollar);
3. RESOLVED, that as a result of the conversion of the Company to become a
Foreign Investment Company in accordance with approvals granted by the
competent authorities, the increase of capital and the issuance of new
shares as resolved above, to confirm the shareholding of the Company with
the following composition:
(1) PT Bina Reksa Perdana: 12,500 shares of the Company having an
aggregate nominal value of Rp 00.000.000.000,00 - eleven billion five
hundred million Rupiah (or equivalent to US$5,530,973 - five million
five hundred and thirty million nine hundred and seventy three United
States Dollar) and representing 50% of the total shares issued by the
Company;
3
(2) International Wireless Communications; 6,250 shares of the Company,
having an aggregate nominal value of Rp 6.250.000.000,00 - six billion
two hundred and fifty million Rupiah (or equivalent to US$2,765,487 -
two million seven hundred and sixty five-thousand four hundred and
eighty seven United States Dollar) and representing 25% of the total
shares issued by the Company;
(4) PT Deltona Satya Dinamika: 6,250 shares of the Company having an
aggregate nominal value of Rp 6.250.000.000,00 - six billion two
hundred and fifty million Rupiah (or equivalent to US$2,765,487 - two
million seven hundred and sixty five million four hundred and eighty
seven United States Dollar) and representing 25% of the total shares
issued by the Company;
4. RESOLVED, to honorably discharge all present members of the Direksi and the
Dewan Komisaris of the Company and to appoint new members of the Direksi
and the Dewan Komisaris of the Company effective as of the date of the
Minister of Justice approval to the Amended Articles of the Company, with
the following composition:
President Director Suprapto Pegeng
Director Xxxx XxXxxxx
Director Amir Xxxxx Xxxxxxx
President Komisaris Hutomo Mandala Putra
Komisaris Xxxxx Xxxxxxxxx
Komisaris Xxxx Xxxxx Xxxxx Xxxxxxx
Komisaris Xxx Xxxx
5. RESOLVED, to approve the amendment of the entire Articles of Association,
so that henceforth the Articles of Association of the Company (hereinafter
referred to as the "Articles of Association") shall read as follows:
1. NAME AND DOMICILE
-----------------
The company is named: "PT RAJASA HAZANAH PERKASA" (hereinafter in these Articles
of Association also referred to as the "Company") and shall be domiciled in
Jakarta, and may open branches and representative offices in other places within
or outside the territory of the Republic of Indonesia.
2. TIME OF INCEPTION AND DURATION
------------------------------
4
The Company shall be formed for a period of seventy five (75) consecutive years
commencing from the date of approval of its Deed of Establishment by the
Minister of Justice, with the provision that the Law on Foreign Investment (Law
Number 1/Year 1967), as amended, shall be applicable to the Company during a
period of thirty (30) years from the date of the commencement of commercial
production, unless the permit for foreign capital investment is extended or
renewed.
3. PUPPOSES AND OBJECTIVES
-----------------------
The purposes and objectives of the Company are:
(a) to engage in the business of providing wireless telecommunications
services throughout Indonesia;
(b) to engage in any business activity or endeavor ancillary,
complementary or relating to the business activities noted in the
preceding paragraph (a) and to conduct its activities for its own
account or in conjunction with other persons or corporate entitles in
such manner and form as may be required, without prejudice to
prevailing laws and regulations.
4. CAPITAL
-------
4.1 The authorized capital. of the Company shall be Rp 25.000.000.000,00 -
twenty five billion Rupiah (or equivalent value of US$11,061,947.00 -
eleven million sixty one thousand nine hundred and forty seven United
States Dollar) divided into 25,000 (twenty five thousand) registered
shares, each share having a nominal value of Rp 1.000.000,00 - one million
Rupiah (or equivalent to US$442.00 - four hundred and forty two United
States Dollar).
4.2 The above mentioned authorized capital has been subscribed by:
(1) PT Bina Reksa Perdana: 12,500 (twelve thousand five hundred) shares of
the Company having an aggregate nominal value of Rp 00.000.000.000,00
eleven billion five hundred million Rupiah (or equivalent to
US$US$5,530,973 - five million five hundred and thirty million nine
hundred and seventy three United States Dollar);
(2) International Wireless Communications: 6,250 shares of the Company
having an aggregate nominal value of Rp 6.250.000.000,00 - six billion
two hundred and fifty million Rupiah (or equivalent to US$2,765,487 -
two million seven
5
hundred and sixty five million four hundred and eighty seven United
States Dollar);
(4) PT Deltona Satya Dinamika: 6,250 shares of the Company having and
aggregate nominal value of Rp 6.250.000.000,00 - six billion two
hundred and fifty million Rupiah (or equivalent to US$2,765,487 - two
million seven hundred and sixty five million four hundred and eighty
seven United States Dollar);
4.3 One hundred percent of the nominal value of each of the above mentioned
subscribed ,shares, or an aggregate sum of Rp 25.000.000.000,00 - twenty
five billion Rupiah (or equivalent value of US$11,061,947.00 - eleven
million sixty one thousand nine hundred and forty seven United States
Dollar) will have been paid up in cash at the latest on the date of
approval of these Amended Articles of Association by the Minister of
Justice.
4.4 Payment for shares in kind or other than by payment in cash or by reduction
of the Company's debt pursuant to the terms of an agreement approved by all
shareholders, shall be subject to approval of all shareholders and if
approved, the Direksi shall have the property to be contributed as payment
appraised in accordance with prevailing laws and regulations.
4.5 In the event that additional shares are issued or the authorized capital of
the Company is increased, then, unless otherwise agreed by all
shareholders, and subject to prevailing laws and regulations, each
shareholder shall be entitled to subscribe to that number of the shares at
any time to be issued out of such increased authorized capital as bears the
same proportion to the total number of shares to be issued as the number of
shares already subscribed to by it bears to the total shares already issued
by the Company.
Subject to prior approval by a General Meeting of Shareholders, the Direksi
shall determine when to issue shares representing such increased authorized
capital, which determination shall be made on the basis of the needs of, or
requirements imposed on, the Company. If the Direksi is considering to
issue new shares, it shall promptly, notify the shareholders.
Unless otherwise determined by the General Meeting of Shareholders, the
price per share at which such new shares are to be issued shall be (i) the
per share book value of already issued shares at the time the new shares
are issued, which value shall be determined by the Direksi, or (ii) the
share's nominal value, whichever is higher. The Direksi shall also
determine the amount
6
of such price per share that must be paid at the time such new shares are
issued.
The Direksi shall notify each shareholder of the date, amount and per share
price (and amount thereof that must be paid upon issuance) of any new issue
of shares. Each shareholder shall have thirty (30) days from the date of
receipt of such notice to accept its proportionate share of the shares to
be issued. In the event any shareholder fails to notify the Direksi in
writing within such thirty (30) day period that it will subscribe to all of
its proportionate share of the shares to be issued, or notifies the Direksi
in writing that it will not subscribe to such shares or will subscribe to
fewer shares than those to which it is entitled, then the Direksi may offer
such shares that were not subscribed:
(i) proportionally to each other shareholder who agrees to subscribe to all
of its proportionate share of the shares to be issued, or,
(ii) in the case of shares which remain unsubscribed, to third parties
approved by the General Meeting of Shareholders, without prejudice to
the requirement to obtain approval from the competent authorities.
In the event any foreign shareholder is for any reason prohibited from
subscribing to or cannot obtain approval from the competent authorities to
subscribe to or purchase all of the new shares to which it is otherwise
entitled pursuant to this Article, then such foreign shareholder shall be
entitled to designate a person or legal entity entitled to purchase shares
in the Company. Such person or legal entity, upon the approval of the
General Meeting of Shareholders and subject to obtaining any approvals
front competent authorities that may be required, will have the right to
purchase any of the new shares to be issued that such foreign shareholder
would otherwise be entitled to subscribe to as provided in this Paragraph.
4.6 The Direksi may, by resolution and notice to the shareholders, require
payment of all or any portion of the value of any subscribed shares that
have not yet been fully paid. Such resolution and notice shall state the
amount of such payment and the date when such payment will be due.
4.7 In case a shareholder fails to pay to the Company any amount in payment for
the shares issued to it by the Company when payment is due as provided in
the Articles of Association, including as provided in Paragraph (3), (5) or
(6) of this Article, then the Direksi shall be obligated to serve on the
said shareholder a
7
written demand for payment of all or any portion of the unpaid amount for
the shares issued to such shareholder, together with interest thereon to
be determined by the Direksi from time to time. Interest shall be counted
from the date of the demand, or from such later date as the Direksi shall
determine, until the total amount due including interest shall have been
fully paid. Amounts received shall be applied first against accrued
interest.
4.8 In the event that the nonpaying shareholder fails to pay in full all
outstanding amounts including interest within fourteen (14) days after the
payment date mentioned in the demand or within such longer period as
determined by the Direksi and set forth in the said demand, then the
shareholder concerned must sell all his shares that are not fully paid to
another shareholder or to a third party comprising one or more other
persons or entitles, without prejudice to the provisions in the Articles of
Association including without invitation Article 8, and with the approval
of the General Meeting of Shareholders, without prejudice to any
requirement to obtain approval from the competent authorities.
For the implementation of the transfer of such shares from the nonpaying
shareholder to another shareholder or a third party, the Direksi is
entitled and authorized, for and 011 behalf of such shareholder who failed
to make the payment, to (i) appear before competent authorities, submit
information and sign and submit applications as necessary or desirable in
order to obtain the approval from the competent authorities and (ii) take
any other action, which is required to accomplish the above transfer of
shares as required by the Articles of Association, including without
limitation Article 8.
4.9 The transfer of such shares to other parties as provided in Paragraph 8 of
this Article shall not relieve the shareholder who has failed to make the
demanded payment from the responsibility for any loss to the Company
resulting from such failure, and such shareholder shall be obliged to
indemnify the Company for any unpaid interest and other damages caused by
its failure to pay.
4.10 Notwithstanding the provisions of Paragraph (5) of this Article, any
shareholder to whom Paragraph (7) or Paragraph (8) of this Article is
applicable shall not be entitled to subscribe to any new shares to be
issued by the Company until it has indemnified the Company in full pursuant
to Paragraph (9) of this Article.
SHARES
------
8
5.1 All shares of the Company shall be registered shares and issued in the name
of the owner as registered in the Register of Shareholders of the Company.
5.2 Subject to Paragraph (1) of this Article, each share certificate issued
will be for at least one share and shall mention the serial number of the
share concerned and shall bear the signatures of the President Komisaris
and President Director.
5.3 The Company may issue a collective certificate as evidence of ownership of
two or more shares held by one shareholder, which collective certificate
shall mention the number of shares concerned and the serial numbers
thereof, and which shall bear the signatures of the President Komisaris and
President Director.
5.4 Each share certificate and each collective certificate shall be numbered
and shall state the date of issue and, if so determined by the Direksi, a
legend or legends identifying applicable restrictions on the transfer of
shares and qualifications applicable to the share(s) represented by such
certificate.
5.5 The Company shall acknowledge only one person, either an individual or a
legal entity, as being entitled to exercise and utilize all the rights
attaching to a share by law or the Articles of Association upon a share.
In the event that any share for whatsoever reason becomes the property of
several persons, then those persons having joint ownership shall designate
in writing to the Direksi one person from amongst them or another person as
their joint representative and only such representative's name shall be
entered into the Register of Shareholders of the Company and such
representative shall be considered as the legal holder/owner of the share
concerned and shall be entitled to exercise and utilize all the rights
attaching to said share by law or the Articles of Association upon said
share. Prior to the Company receiving, the written notification with
respect to the designation of a joint representative or any change in such
designation, the Company shall be entitled to treat the person whose name
is registered in the Register of Shareholders of the Company as the only
person entitled to exercise and utilize the rights attaching to said share
by law or the Articles of Association.
6. REPLACEMENTS
------------
6.1 In case any share certificate is damaged or replacement thereof is deemed
necessary for any other reason determined by the Direksi, the original
share certificate may be exchanged for its replacement upon written request
addressed to the Direksi and on
9
surrender of the original share certificate or whatever is left thereof.
6.2 Whenever a replacement certificate has been issued as provided in Paragraph
(1) of this Article 6, the original share certificate, or whatever is left
of it, shall be marked as being cancelled at the subsequent meeting of the
Direksi and the proceeding shall be recorded in the minutes of such meeting
and thereafter reported to the General Meeting of Shareholders.
The cancellation of original share certificates and the issuance of
replacement certificates shall be recorded in the Register of Shareholders
pursuant to Article 7.
6.3 In case a share certificate is lost or totally destroyed, the replacement
may be issued to the shareholder concerned, provided he gives satisfactory
evidence to the Direksi, that said share certificate is in fact lost or
totally destroyed and gives such guarantee as may be deemed necessary by
the Direksi in any particular case.
6.4 The issuance of a replacement in accordance with the provisions of this
Article renders the original share certificate null and void.
6.5 All expenses incurred in connection with the replacement of share
certificates in accordance with the provisions of this Article shall be
borne by the shareholder concerned.
6.6 The provisions in Paragraphs (1) through (5) of this Article shall be
applicable, mutatis mutandis, to the issuance of replacements for
collective certificates.
7. REGISTER OF SHAREHOLDERS
------------------------
7.1 The Direksi shall keep a Register of Shareholders of the Company, which
Register shall contain each shareholder's name and address as notified in
writing by the shareholder concerned to the Direksi, the serial numbers of
the shares, the number of shares held by each. shareholder, any pledge or
other encumbrance of any share, and other particulars deemed necessary by
the Direksi and/or by prevailing laws and regulations. Each shareholder
shall notify the Direksi in writing of every change in address of such
shareholder and, promptly upon receipt of such notice, the Direksi shall
record such change of address of such shareholder in the Register of
Shareholders.
10
The address as recorded in the Register of Shareholders shall be used for
all correspondence, notices and dividends sent to the shareholder and in
the event of other rights that may be exercised by the such shareholder.
Each shareholder may request copies of all or part of the notices sent to
third parties designated by such shareholder.
7.2 The Direksi, upon request of the shareholder, transferee, pledgee or other
secured party concerned, but, in case of a pledge or other encumbrance of
any share, only after approval of the General Meeting of Shareholders as
provided in Paragraph (10) of Article 8, shall record the particulars of
such transfer, pledge or other encumbrance of shares, and shall make any
notation deemed necessary by the Direksi in the Register of Shareholders in
a manner to be determined by the Direksi and based on satisfactory evidence
acceptable to the Direksi.
7.3 Any registration, recordation or annotation in the Register of
Shareholders, shall be signed by the President Director or one of the
members of the Direksi authorized to act for and on behalf of the Direksi
pursuant to Article 10 hereof.
7.4 For the Company, the registration of a shareholder in the Register of
Shareholders shall constitute complete evidence for the ownership of shares
and other matters stated in the Register of Shareholders.
7.5 Unless otherwise provided in the Articles of Association, notices, demands,
offers and acceptances and other correspondences to be given or made to a
shareholder pursuant to the Articles of Association, shall be deemed given
or made if addressed to such shareholder as provided in the Register of
Shareholders and for shareholders whose address is within Indonesia if hand
delivered or sent by prepaid registered mail, whereas for shareholders
whose address is outside of Indonesia, if sent by prepaid air courier, in
each case requesting signature acknowledging receipt.
7.6 The Register of Shareholders shall be open for inspection at any time
during office hours at the request of any shareholder. The Company shall
provide to any shareholder, upon its request and at its expense, a copy of
the Register of Shareholders.
8. TRANSFER OF SHARES
------------------
8.1 None of the shareholders shall be entitled to sell, transfer or otherwise
assign any, of its shares other than in accordance with this Article,
except with the approval of the General Meeting of
11
Shareholders at which the owners of all of the shares issued by the Company
are present or represented and a resolution to that effect is approved by
the affirmative vote of all shareholders and without prejudice to
prevailing' laws and regulations.
8.2 if a shareholder wishes to transfer all or part of its shareholding in the
Company, (hereinafter the shareholder who wishes to transfer its shares is
referred to as the "Selling Shareholder", whereas the shares to be
transferred are referred to as the "Sale Shares") to a bona fide potential
third party purchaser (hereinafter referred to as the "Third Party
Purchaser"), the Selling Shareholder shall OIVC to the other shareholders
(hereinafter referred to as the "Other Shareholders") notice in writing
(hereinafter referred to as a "Transfer Notice") of its wish to transfer
the Sale Shares, together with details of the Third Party Purchaser, the
purchase price and other material terms agreed between the Selling
Shareholder and the Third Party Purchaser. A Transfer Notice shall
constitute an offer by the Selling Shareholder to the Other Shareholders to
sell the Sale Shares to the Other Shareholders in accordance with the
provisions of this Article 8.
8.3 Following receipt of a Transfer Notice, each of the Other Shareholders
shall by giving to the Selling Shareholder notice in writing (hereinafter
referred to as the "Acceptance Notice") within a period of sixty (60) days
of receipt of the Transfer Notice (the "Acceptance Period") have the right
to purchase the whole (but not part only) of a proportion of Sale Shares
equal to the proportion borne by its shares to the aggregate shares of the
Other Shareholders, at a purchase price (per share) and on other material
terms no less favorable to the Selling Shareholder than those agreed
between the Selling Shareholder and the Third Party Purchaser.
Any Sale Shares in respect of which no Acceptance Notice is received within the
Acceptance Period shall within fifteen (15) days of the expiry of the
Acceptance Period be offered to those Other Shareholders from whom
Acceptance Notices were so received, and each of whom, by giving to the
Selling Shareholder a second Acceptance Notice (hereinafter referred to as
the "Second Acceptance Notice") within a further period of thirty (30)
days, shall be entitled to purchase the whole (but not part only) of a
proportion of such Sale Shares equal to the proportion borne by its shares
to the aggregate shares of those Other Shareholders from whom Acceptance
Notices were so received, at a purchase price (per share) and on other
material terms no less favorable than those specified in the Transfer
Notice, provided that each of the Other Shareholders shall be entitled to
assign its rights under this Paragraph (3) of Article 8 to an alternative
third
12
party purchaser approved by the General Meeting of Shareholders, subject to
such alternative third party purchaser giving satisfactory evidence of its
undertaking to the Selling Shareholder to complete the sale and purchase in
accordance with Paragraph (6) of this Article 8.
8.4 Each of the Other Shareholders shall, by giving, the Acceptance Notice.
under Paragraph (3) of this Article 8, become bound to purchase the Sale
Shares accepted by it pursuant to the Acceptance Notice, subject only to
all necessary, approvals of competent regulatory authorities.
8.5 Completion of the sale and purchase of the Sale Shares shall take place
within sixty (60) days of the receipt by the Selling Shareholder of an
Acceptance Notice, and the obtaining, of all necessary approvals from the
competent regulatory authorities, provided that if all necessary approvals
are not obtained within one hundred twenty (120) days of the receipt by
the Selling Shareholder of an Acceptance Notice, the Acceptance Notice and
the rights of the Other Shareholders under Paragraph (3) of this Article 8
above shall automatically terminate and the Selling Shareholder shall be
entitled to sell the Sale Shares to the Third Party Purchaser, without
prejudice to the requirement of approval from the competent authorities as
may be required. The other shareholders shall be bound to give all
reasonable assistance with a view to obtaining such approvals in a timely
manner.
The transfer of shares to the Third Party Purchaser shall be carried out
at a price and on material terms no less favorable to the Selling
Shareholder than those specified in the Transfer Notice, provided that
such transfer shall have been completed within a period of 60 days from
(i) the date of expiry of the period for giving the Acceptance Notice, or
if applicable, from the date of expiry of the period during which a Second
Acceptance Notice may be given, or (ii) the date on which an Acceptance
Notice ceases to have effect pursuant to Paragraph (5) of this Article 8.
The Other Shareholders undertake to give all necessary approval to any
such share transfer.
8.7 Any foreign shareholder that for any reason is prohibited from purchasing,
or accepting, or cannot obtain approval that may be required from the
competent authorities to purchase or accept, all of the shares that lie
would be entitled to purchase or accept under the preceding Paragraphs of
this Article, shall be entitled to designate a third party who, will have
the same right to purchase or otherwise accept all or part of the shares
that such foreign shareholder would otherwise have been entitled to
purchase or accept, without prejudice to obtaining any approvals
13
from the competent regulatory authorities that may be required, and subject
to the third party obtaining the approval of the General Meeting of
Shareholders.
8.8 The preceding Paragraphs of this Article shall not apply in the case of a
transfer of shares resulting from death or if the sale or transfer is
required pursuant to any law, regulation, order, decision or instruction
from any competent authority, or in the case of a sale or other transfer to
an Affiliate of the selling/transferring shareholder, or if approved by
resolution of an Extraordinary General Meeting of Shareholders upon the
affirmative vote of all shareholders or their duly authorized
representatives, or if all other shareholders have waived their rights
under such Paragraphs. As used in the preceding sentence, the term
"Affiliate" shall mean a person that directly or indirectly, through one or
more intermediaries, controls or is controlled by or is under common
control with, the person specified, through the ownership of shares, by
voting rights, by contract or otherwise, where "control" means ownership of
more than fifty percent (50%) of the total shares (and "controls" and
"controlled by" are construed accordingly).
8.9 All sales and other share transfers shall be evidenced by a document signed
by or on behalf of the transferor and the transferee of the share
concerned, which document of share transfer shall be in the form as
prescribed by or satisfactory to the Direksi, without prejudice to the
provisions in the Commercial Code with respect to the transfer of shares.
8.10 Any pledge or other encumbrance of a share of the Company must be approved
by the General Meeting of Shareholders and recorded in the register of
Shareholders. Any sale by the pledgee or other secured party of pledged or
otherwise encumbered shares shall be subject to the provisions of this
Article as well as the applicable laws and regulations relating to pledges.
8.11 Shares shall only be sold or otherwise transferred pursuant to procedures
specified in the preceding Paragraphs of this Article 8 and, if applicable,
Paragraph (8) of Article 4. Any sale or other transfer of shares in
contravention of such provisions of the Articles of Association shall not
be recognized by the Company. In addition, the sale or other transfer of
shares shall be subject to any approval of the competent authorities that
may be required.
Any party purchasing or otherwise accepting a transfer of shares without an
approval that may be required from competent authorities shall not be
entitled to exercise any authority or rights whatsoever as a shareholder,
including the rights to
14
participate or vote in the General Meeting of Shareholders or to receive
payments of dividends or distributions upon liquidation, with respect to
such shares until the transfer of such shares has been approved by the
competent authorities and registered in the Register of Shareholders.
8.12 In the case of a change of ownership of a share, the original owner
registered in the Register of Shareholders shall be deemed to remain the
owner of such share until the name of the new owner has been entered in the
Register of Shareholders.
8.13 No transfer of shares shall be registered during the period from the date
of the dispatch of the notices for a General Meeting of Shareholders until
and including the date of the closing of such meeting.
8.14 Any person becoming entitled to a share as a consequence of the death of a
shareholder or in any case in which the ownership of a share changes by
operation of law, regulation, order, decision or instruction from any
competent authority may, upon producing, such evidence of transfer and its
entitlement to the shares as may from time to time be required by the
Direksi, apply in writing to be registered as the holder of the share. The
share transfer shall be registered only if the Direksi can accept and is
satisfied with the evidence of title, without prejudice to the provisions
in the Articles of Association.
9. NIIANAGEMENT
------------
9.1 The company shall be managed by a Direksi under the supervision of the
Dewan Komisaris.
9.2 The Direksi shall consist of three (3) members, one (1) of whom shall be
the President Director.
9.3 The members of the Direksi shall be appointed by the General Meeting of
Shareholders. One (1) member of the Direksi shall be appointed from
candidates recommended by the foreign shareholder and two (2) including the
President Director shall be appointed from candidates recommended by the
Indonesian shareholder(s). The General Meeting of Shareholders shall be
bound to appoint the persons recommended as aforesaid.
9.4 The members of the Direksi shall be appointed for a term commencing, on the
date determined by the General Meeting of Shareholders that appoints them
and, except as provided in the following sentence, ending at the close of
the next Annual General Meeting of Shareholders after the date of their
15
appointments. If for any reason whatsoever the post of a member of the
Direksi is not filled by the General Meeting of Shareholders upon the
expiration of such member's terms as stated lit the preceding sentence,
then the term for such member of the Direksi shall continue, and such
member shall remain in office, until his successor is appointed.
9.5 Members of the Direksi may be reappointed to serve after the expiration of
their terms of office.
9.6 A General Meeting of Shareholders may at any time dismiss a member of the
Direksi prior to the expiration of his term of office if such member has
violated the Articles of Association, has neglected his duties or upon the
recommendation of the same group of shareholders who, pursuant to
'Paragraph (3) of this Article, initially recommended the- appointment of
such member.
9.7 A member of the Direksi may resign from his office by giving at least
thirty (30) days notice in writing to the Company of his intention to do
so, provided that a General Meeting of Shareholders may agree that such
resigning member may resign prior to the expiration of such thirty-day
period.
9.8 The term of office of a member of the Direksi shall automatically terminate
if such member of the Direksi:
9.8.1 is declared bankrupt or a court decision is issued pursuant to which
he/she is to be put under custody; or
9.8.2 becomes prohibited from being a member of the Direksi under a
provision of prevailing laws or regulations; or
9.8.3 dies.
9.9 If a vacancy occurs in the Direksi, then a General Meeting of Shareholders
shall be held within 30 (thirty) days after the vacancy occurs to fill said
vacancy. The vacancy shall be filled from candidates recommended by the
same group of shareholders who, pursuant to Paragraph (3) of this Article,
initially recommended the appointment of the member of the Direksi whose
post has become vacant.
9.10 The term of office of any person appointed to the Direksi to fill a
vacancy resulting from any cause whatsoever shall be the remaining portion
of the term of the member of the Direksi so replaced, unless otherwise
determined by the General Meeting of Shareholders.
16
9.11 Salaries or other remunerations may be granted to the members of the
Direksi as determined by the General Meeting of Shareholders.
9.12 The Direksi shall meet for the transaction of business from time to time
and in any event at least once in every three (3) months.
10. POWERS OF THE DIREKSI
---------------------
10.1 The President Director and one other Director jointly shall represent the
Direksi. In case of absence or disability of the President Director and
such other Director, of which impediments no evidence to third parties
shall be required, one of the members of the Direksi designated in writing
by the President Director or such other Director, -Is the case may be,
shall have the power to act for and on behalf of the Direksi. Any other
member of the Direksi authorized by a duly adopted resolution of the
Direksi shall also be entitled and empowered to act for and on behalf of
the Direksi, in each case in accordance with the resolution adopted by the
Direksi.
10.2 The Direksi shall represent the company within and outside the Courts of
Justice with regard to all matters and is entitled to take all actions
pertaining to management and ownership affairs.
The affirmative vote of all members of the Direksi shall be required for
the following actions:
(a) designation of and change to the Company bank account signatories;
(b) loans, guarantees or trade credits to third parties in amounts
exceeding, US$25,000, whether in a single or a series of related
transaction;
(c) contracts, agreements or transactions with any shareholders or with any
of their affiliated companies which involve amounts in annual value, in
excess of US$75,000. in a single or a series of related transactions;
(d) borrowing money in amounts greater than the Rupiah equivalent of US$
250,000 (provided that drawing moneys from an established credit or
loan account which previously has been authorized in the approved
annual business plan shall not be regarded as borrowing for the purpose
of this provision);
(e) determining employee compensation guidelines;
(f) writing off any accounts receivables or releasing any claims of the
Company, in excess of US$100,000;
17
(g) any expenditure greater than the Rupiah equivalent of US$250,000,
provided that expenditures approved in the approved annual business
plan or approved budget shall not be regarded as expenditures for the
purpose of this provision;
(h) material amendments to the authorization policies as set forth from
time to time by the General Meeting of Shareholders;
(i) acquiring by purchase, lease or any other method movable or immovable
property having a price (in the case of leasing, an annual lease price)
in excess of the equivalent in any currency of US$250,000 for any
individual transaction and US$1,000,000 in the aggregate per year or
such amount as otherwise approved by the Dewan Komisaris from time to
time;
(j) selling or disposing of movable or immovable property having a value
exceeding the limit from time to time determined by the Dewan
Komisaris;
(k) participating in any other business enterprise, including without
limitation establishing any subsidiary, without prejudice to any
approvals that may be required from competent authorities;
(l) establishing lines of credit or other credit facilities;
(m) entering into, amending or terminating contracts in which the goods
and/or services to be purchased, sold or leased having a value in
excess of the equivalent in any currency of US$250,000 for any
individual transaction and US$1,000,000 in the aggregate per year, or
such amount as otherwise approved by the Dewan Komisaris from time to
time;
Prior approval by the Dewan Komisaris shall be required for the following
actions:
(a) borrowing any money (provided that drawing money from an established
credit or loan account which has been so approved shall not be
regarded as borrowing for the purpose of this provision) having, a
value in excess of the equivalent in any currency of US$500,000 for
any individual transaction or such amount as otherwise approved by the
Dewan Komisaris from time to time;
(b) binding the Company as guarantor and/or extending loans to or on
behalf of third parties;
18
(c) granting any hypothecation, fiduciary transfer of proprietary rights
for security, purposes, pledge or other security interest or priority
claim in any property or assets of the Company;
(d) issuing interim dividends;
(c) transferring, acquiring or granting any licenses, sublicenses or
rights with respect to telecommunication technology, technical know-
how, trade secrets, patents, copyrights, trademarks, tradenames or
other intellectual property;
(t) undertaking any new business or substantially expanding any existing
business.
(g) issuance of securities by the Company on a stock exchange.
Towards third parties the approval of the Dewan Komisaris shall be
sufficiently proven by the signature on the document concerned of, by a
minutes of the meeting of the Dewan Komisaris.
10.3 The Direksi shall determine the relationship and distribution of work
among, the members of the Direksi pursuant to the provisions in the
Articles of Association.
10.4 Any member of the Direksi who has been authorized by the Direksi' as
provided in Paragraph 1 of this Article to act for and on behalf of the
Direksi shall be entitled to authorize one or more persons as his attorney-
in-fact by written power(s) of attorney,, such powers to be exercised only
in accordance with the Articles of Association. Any such authorizations
shall not relieve the authorizing member of the Direksi from his ultimate
accountability.
10.5 On an annual basis and at least thirty (30) days prior to the end of each
fiscal year of the Company, the Direksi shall prepare and submit to the
Dewan Komisaris for its review and approval the documents specified in
Paragraph 7 of Article 13.
11. MEETINGS OF THE DIREKSI
11.1 The Direksi shall meet at least once every three (3) months upon notice
given by the President Director. In addition, any Director may at any time
in writing or by telex or facsimile request the President Director to
convene a meeting of the Direksi, stating in such request the matters to be
discussed. If the President Director falls to convene a meeting of the
Direksi
19
on the date specified in such request, having due regard for the
requirements for giving notice to the members of the Direksi, or within
thirty days from the date of receiving such request if no date is specified
in the request, then the Director who requested the meeting may convene a
meeting of the Direksi by direct notice to the members of the Direksi.
All reasonable expenses of members of the Direksi for attending the
quarterly meetings of the Direksi shall be borne by the Company.
11.2 A meeting of the Direksi shall be convened by delivery of notice to each
member of the Direksi, stating the time, date and place of the meeting and
the items to be discussed. Such notice shall be delivered by hand, or sent
by prepaid air courier, in each case against proper receipt, or sent by
telegram, telex or facsimile. If sent by telegram, telex or facsimile a
written confirmation shall be sent by air courier as soon as practicable,
provided that failure to receive such confirmation shall not invalidate the
telegraphic, telex or facsimile notice. The notice shall be sent not less
than ten (10) days before such meeting, excluding the date of the notice
and the date of the meeting. If all members of the Direksi are present
and/or represented and approve the agenda for the meeting, such prior
notice shall not be required.
Each member of the Direksi shall accept and comply within a shorter period
of notice than that prescribed by the Articles of Association if, in the
opinion of the President Director, the matters to be considered at such
meeting require urgent decision provided that the shorter period of notice
is not less than seven (7) days.
11.3 The President Director, or, in case of his absence or disability, of which
impediment no evidence to third parties shall be required, another member
of the Direksi designated in writing by the President Director, or, if no
such designation has been made, selected by the meeting from among those
present, shall preside over each meeting of the Direksi.
11.4 A member of the Direksi may be represented at a meeting of the Direksi
only by another member of the Direksi on the basis of a written power of
attorney.
11.5 A meeting of the Direksi shall be a lawful meeting and shall be empowered
to adopt valid resolutions only if all members of the Direksi are present
and/or represented.
20
11.6 Except as otherwise provided for in the Articles of Association,
resolutions of the meeting of the Direksi shall be adopted upon approval of
a majority of members of the Direksi. Each member of the Direksi shall be
entitled to cast one (1) vote and in addition one (1) vote for each other
member he validly represents.
11.7 Minutes of the meeting of the Direksi shall be drawn up by a person
present at the meeting designated by the chairperson of the meeting and
shall be signed by all members of the Direksi present at the meeting, to
verify the completeness and accuracy of the minutes. If the minutes are
drawn up by a notaris, the above signatures are not required. Minutes of a
meeting made and signed as aforesaid shall I serve as legal evidence
concerning resolutions adopted, and of the events that happened at the
meeting concerned and shall be binding upon all members of the Direksi and
the Company
11.8 The Direksi may also adopt valid and binding resolutions without convening
a meeting of the Direksi if all members of the Direksi have granted their
approval as evidenced by their signed consent.
11.9 A copy of, or excerpt from, the minutes of a meeting of the Direksi or of
resolutions adopted in accordance with Paragraph 8 of this Article shall be
deemed a legal copy or excerpt if it is stated to be a true copy or excerpt
and such statement is signed by all members of the Direksi or if it is
issued by the notaris who has drawn up the minutes concerned.
12. THE DEWAN KOMISARIS
-------------------
12.1 The Dewan Komisaris has the responsibility to supervise the management of
the Company by the Direksi and to carry out legal actions as stipulated in
the Articles of Association with due regard to prevailing laws and
regulations.
12.2 The Dewan Komisaris shall consist of four (4) members, one (1) of whom
shall be the President Komisaris.
12.3 The members of the Dewan Komisaris shall be appointed by the General
Meeting of Shareholders. The President Komisaris and two (2) other members
of the Dewan Komisaris shall be appointed from candidates recommended by
the Indonesian shareholders. One (1) member of the Dewan Komisaris shall
be appointed from candidates recommended by the foreign shareholder. The
General Meeting of Shareholders shall be bound to appoint the persons
recommended as aforesaid.
21
12.4 The members of the Dewan Komisaris shall be appointed for a term
commencing on the date determined by the General Meeting of Shareholders
that appoints them and, except as provided in the following sentence,
ending at the close of the next Annual General Meeting of Shareholders
after the date of their appointments. If for any reason whatsoever the
post of a member of the Dewan Komisaris is not filled by the General
Meeting of Shareholders on the date stated in the preceding sentence, then
the term for such member of the Dewan Komisaris shall continue, and such
member shall remain in office, until his successor is appointed.
12.5 Members of the Dewan Komisaris may be reappointed to serve after the
expiration of their terms of office.
12.6 A General Meeting of Shareholders may at any time dismiss a member of the
Dewan Komisaris prior to the expiration of his term of office if such
member has violated the Articles of Association or has neglected his duties
or for any other reason.
12.7 A member of the Dewan Komisaris may resign from his office by giving at
least thirty (30) days notice in writing to the Company of his intention to
do so, provided that a General Meeting of Shareholders may agree that such
resigning member may resign prior to the expiration of such thirty day
period.
12.8 The term of office of a member of the Dewan Komisaris shall automatically
terminate if such member of the Dewan Komisaris:
a. is declared bankrupt or a court decision is issued pursuant to which
he/she is to be put under custody; or
b. becomes prohibited from being a member of the Dewan Komisaris under a
provision of prevailing laws or regulations; or
c. dies.
12.9 If a vacancy occurs in the Dewan Komisaris, then a General Meeting of
Shareholders shall be held within three (3) months after the vacancy
occurs to fill said vacancy. The vacancy shall be filled from candidates
recommended by the same croup of shareholders who, pursuant to Paragraph 3
of this Article, initially recommended the appointment of the member of
the Dewan Komisaris whose post has become vacant.
12.10 The term of office of any person appointed to fill a vacancy resulting
from any cause whatsoever shall be the remaining
22
portion of the term of the member of the Dewan Komisaris so replaced.
12.11 Honoraria or other remunerations may be granted to the members of the
Dewan Komisaris as determined by the General Meeting of Shareholders.
13. POWERS OF THE DEWAN KOMISARIS
-----------------------------
13.1 The Dewan Komisaris shall have the authority to take all actions necessary
or required to supervise the management of the Company by the Direksi.
13.2 Any member of the Dewan Komisaris may examine and review all or any of the
accounts, books, records, agreements and other documents of the Company,
and may examine and inspect the assets of the Company wherever they may be
located. The Dewan Komisaris, by duly adopted resolution of the Meeting of
the Dewan Komisaris, may also appoint or authorize an authorized person(s)
(including, any member of the Dewan Komisaris) to enter any building or
other premises owned, rented or controlled by the Company to undertake such
examination, review and inspection. The Direksi, and each member thereof,
shall give all information related to the Company, and provide such
assistance as may be, requested by the Dewan Komisaris or such appointed or
authorized person.
13.3 The Dewan Komisaris, based on the resolution of the meeting of the Dewan
Komisaris, may at any time suspend any member of the Direksi from his
duties if such member has violated the Articles of Association, has
neglected his duties or has acted contrary to the interests of the Company.
13.4 Within ten (10) days following such suspension, the Dewan Komisaris shall
give notice to each shareholder convening an Extraordinary General Meeting
of Shareholders to meet within thirty (30) days after the date of such
suspension to determine whether the member of the Direksi in question shall
be discharged or whether the suspension is to be revoked. Such notice
shall state the reason for the suspension and shall also be sent to the
suspended member of the Direksi, who shall be entitled to appear before
such Extraordinary General Meeting of Shareholders and explain his actions
or omissions. Such Meeting shall be presided over by the President
Komisaris or in his absence, of which impediment no evidences to third
parties shall be required, by one of the other members of the Dewan
Komisaris selected by the Dewan Komisaris for such purpose, or if no such
person is
23
present, then by a person selected by the Meeting from among those present.
13.5 If the notices referred to in the preceding Paragraph are not given within
ten (10) days following the suspension or if the General Meeting of
Shareholders fails to discharge such member within such thirty-day period,
then such suspension shall be revoked automatically.
13.6 If all members of the Direksi are suspended or for any reason there are no
members of the Direksi at all, the members of the Dewan Komisaris shall
manage the Company for the time being and shall call within thirty (30)
days after the occurrence of such event a General Meeting of Shareholders
to appoint new members of the Direksi. The Dewan Komisaris is entitled to
empower one or more members of the Dewan Komisaris to manage the Company
until new members of the Direksi have been appointed.
13.7 The Dewan Komisaris shall review and approve the following:
(a) on an annual basis, the proposed business plan which shall commence
with the next financial year; and
(b) an annual procurement, operational and marketing plan for the next
financial year; and
(c) an annual budget including capital and operating expenditures.
14. MEETINGS OF THE DEWAN KOMISARIS
-------------------------------
14.1 The Dewan Komisaris shall meet at least once in every six months upon
notice given by the President Komisaris. The President Director or any
member of the Dewan Komisaris may at any time in writing or by telex or
facsimile request the President Komisaris to convene a meeting of the Dewan
Komisaris, stating in such request the matters to be discussed. If the
President Komisaris falls to convene a meeting of the Dewan Komisaris to be
held on the date specified in such request, having due regard for the
requirements f6r giving notice to the members, or within twenty-one (21)
days from the date of receiving such request if no date is specified in the
request, then the person who requested the meeting may convene a meeting of
the Dewan Komisaris by direct notice to the members of the Dewan Komisaris.
All reasonable expenses, including for travel and lodging, of members of
the Dewan Komisaris and the Direksi (if any) for attending semi-annual
meetings of the Dewan Komisaris shall be borne by the Company.
24
14.2 A meeting, of the Dewan Komisaris shall be convened by delivery of notice
to each member of the Dewan Komisaris and to the President Director if such
meeting Is to be convened upon his request, stating the time, date and
place of the meeting and the items to be discussed. Such notice shall be
delivered by hand or sent by prepaid air courier, in each case against
proper receipt, or by telegram, telex or facsimile. If sent by telegram,
telex or facsimile a written confirmation shall be sent by air courier as
soon as practicable, provided that failure to receive such confirmation
shall not invalidate such telegraphic or telex notice. The notice shall be
held less than ten (10) days before such meeting, excluding the date of the
notice and the date of the meeting. If all members of the Dewan Komisaris
are present and/or represented and approve the agenda for the meeting, such
prior notice shall not be required.
Each member of the Dewan Komisaris shall accept a shorter period of notice
than that prescribed by the Articles of Association if, in the opinion of
the President Komisaris, the matters to be considered at such meeting
require urgent decision provided that the shorter period of notice is not
less than ten (10) days.
14.3 The President Komisaris, or, in case of his absence or disability, of
which impediment no evidence to third parties shall be required, another
member of the Dewan Komisaris selected by the meeting from among those
present, shall preside over each meeting, of the Dewan Komisaris.
14.4 A member of the Dewan Komisaris may be represented at a meeting of the
Dewan Komisaris only by another member of the Dewan Komisaris on the basis
of a written power of attorney.
14.5 A meeting of the Dewan Komisaris shall be a lawful meeting and shall be
empowered to adopt valid resolutions only if all members of the Dewan
Komisaris are present and/or represented.
14.6 Resolutions of the meeting, of the Dewan Komisaris shall be adopted upon
approval of a majority of the members of the Dewan Komisaris present or
represented in the meeting. Each member of the Dewan Komisaris shall be
entitled to cast one (1) vote and in addition one (1) vote for each member
lie validly represents.
14.7 Minutes of a meeting of the Dewan Komisaris shall be drawn up by a person
present at the meeting designated by the chairperson of the meeting and
shall be signed by the chairperson of the meeting and one (1) other person
present, one of which is nominated by the foreign shareholder(s), to verify
the completeness and accuracy of the minutes.
25
If the minutes are drawn up by a notaris, the above signatures are not
required. Minutes of a meeting made and signed as aforesaid shall serve as
legal evidence of resolutions adopted and of the events that happened, at
the meeting concerned and shall be binding upon all members of the Dewan
Komisaris and the Company.
14.8 The Dewan Komisaris may also adopt valid and binding resolutions without
convening a meeting of the Dewan Komisaris if all members of the Dewan
Komisaris have been notified of the text of the resolutions and all members
of the Dewan Komisaris have granted their approval as evidenced by their
signed consent.
14.9 A copy of, or excerpts from, the minutes of a meeting of the Dewan
Komisaris or of resolutions adopted in accordance with Paragraph 8 of this
Article, shall be deemed a legal copy or excerpt if it is stated to be a
true copy or excerpt and such statement is signed by at least three (3)
members of the Dewan Komisaris, or if it is issued by the notaris who has
drawn up the minutes concerned.
15. FINANCIAL YEAR AND ACCOUNTS
---------------------------
15.1 The first financial year of the Company shall commence on this date and
end on the 31st day of December of the same year, and each financial year
thereafter shall commence on the first day of January and end on the
thirty-first day of December of the following year. At the thirty-first
day of December of each year the books of the Company shall be closed.
15.2 As from the date the books are closed, a balance sheet, a profit and loss
statement and such other financial statements as deemed necessary or useful
by the Direksi shall be prepared and audited by an independent and
internationally reputable firm of certified public accountants along with
the annual report of the Direksi. If the account of profits and losses in
any financial year shows a loss which cannot be covered by the reserve fund
as referred to in Article 23 hereunder, the loss shall remain recorded as
such in the profit and loss statement and furthermore for the succeeding
years the Company shall not be deemed as having made a profit as long as
the loss recorded as such in the account of profit and loss statement has
not been fully covered by undistributed net earnings.
15.3 The aforesaid balance sheet, profit and loss statement and other financial
statements shall be signed by all members of the Direksi, and shall be made
available at the Company's office for
26
inspection by the shareholders from the date of the notice to shareholders
convening the Annual General Meeting of Shareholders referred to in Article
17 below.
15.4 The approval of the balance sheet and profit and loss statement by the
Annual General Meeting of Shareholders shall constitute a full release of
the members of Direksi and the Dewan Komisaris from their responsibilities
and a ratification of all actions taken by them during the financial year
under review to the extent such actions are reflected in the aforesaid
balance sheet and profit and loss statement, except for fraud, embezzlement
and any other criminal acts.
16 GENERAL MEETINGS OF SHAREHOLDERS
--------------------------------
16.1 There are two (2) kinds of General Meetings of Shareholders:
a. an Annual General Meeting of Shareholders is a General Meeting of
Shareholders as mentioned in Article 17 hereunder;
b. an Extraordinary General Meeting of Shareholders is a General Meeting
of Shareholders other than an Annual General Meeting of Shareholders.
16.2 Unless the context requires otherwise, "General Meeting of Shareholders"
shall mean both an Annual and an Extraordinary General Meeting of
Shareholders.
17. ANNUAL GENERAL MEETINGS OF SHAREHOLDERS
---------------------------------------
17.1 The Annual General Meeting of Shareholders shall meet once a year at the
latest by the end of the sixth month following the end of the Company's
financial year.
17.2 At the Annual General Meeting of Shareholders:
a. the Direksi shall report on the affairs and management of the Company
and the results that have been achieved during the course of the past
financial year;
b. the audited balance sheet and the profit and loss statement covering
the past financial year shall be submitted for approval and
ratification;
c. the appropriation of the profits for the Year under review and the
amount of the dividends, if any, to be paid with
27
respect to the Company's undistributed net earnings shall be
determined and approved;
d. members of the Direksi and Dewan Komisaris shall be appointed, if
necessary;
e. an auditor shall be appointed; and
f. resolutions may be adopted as to other matters properly brought
forward pursuant to the Articles of Association.
18. EXTRAORDINARY GENERAL MEETINGS OF SHAREHOLDERS
----------------------------------------------
18.1 An Extraordinary General Meeting, of Shareholders shall be convened
whenever it is deemed necessary by a resolution of the Direksi or as
otherwise required pursuant to the Articles of Association.
18.2 The President Director shall convene an Extraordinary General Meeting, of
Shareholders upon receipt of a request in writing from the Dewan Komisaris
or one (1) or more shareholders representing at least twenty percent (20%)
of the shares issued by the Company, stating in such request the matters to
be dealt with and the week in which the meeting shall be held, which week
must commence not less than thirty (30) days following the date of the
request.
The President Director shall determine the date during the week specified
in such request on which such meeting shall be held and promptly, but in no
event more than fourteen (14) days following receipt of such request, give
notice to all shareholders convening the Extraordinary General Meeting of
Shareholders. If the President Director falls within fourteen (14) days
after receipt of the written request to give notice convening, such Meeting
the Dewan Komisaris or the shareholder(s) that made the request shall be
entitled to convene the Meeting themselves on the date noted in the notice
at the expense of the Company, with due observance of the provisions of the
Articles of Association. Such Meeting shall be presided over by a
chairperson elected by and from amongst those present. Provided any and
all requirements in the Articles of Association with respect to subject
matter, notice, quorum and voting requirements have been properly complied
with, all resolutions adopted by such Meeting shall be valid and binding.
19. PLACE AND NOTICE OF GENERAL MEETINGS OF SHAREHOLDERS
----------------------------------------------------
28
19.1 Without prejudice to the provisions of the Articles of Association,
meetings of the General Meeting of Shareholders shall be held at the
domicile of the Company or at such other location in Indonesia as may be
determined by the Direksi.
19.2 Except as otherwise provided in the Articles of Association, notices
convening a General Meeting of Shareholders shall be delivered or sent not
less than fourteen (14) days in the case of an Extraordinary General
Meeting of Shareholders and thirty (30) days in the case of all Annual
General Meeting of Shareholders before the date of the meeting, excluding,,
the date of the notice and the date of the meeting.
19.3 The notice shall state the place, date and time as well as the agenda of
the meeting and notices for all Annual General Meeting of Shareholders
shall be accompanied by a notification that copies of the balance sheet and
profit and loss statement for the preceding financial year are available
for inspection by shareholders at the offices of the Company as from the
date of the notice for the meeting concerned and call be obtained upon
written requests within fourteen (14) days before the meeting concerned.
19.4 If all shareholders are present and/or represented in the General Meeting
of Shareholders, prior notice shall not be required and such Meeting shall
be entitled to take binding decisions, and provided that all shareholders
present or represented agree, may consider any matter.
19.5 Proposals from shareholders shall be included in the agenda of a meeting,,
of the General Meeting of Shareholders if the proposal concerned has been
submitted in writing to the Direksi by one (1) or more shareholders
representing at least twenty, percent (20%) of the shares issued by the
Company and after they have been received by the Direksi, the Direksi shall
promptly notify all shareholders of the additional agenda item contained in
such notice.
20. CHAIRPERSON OF THE GENERAL MEETINGS OF SHAREHOLDERS
---------------------------------------------------
20.1 Except as otherwise provided in the Articles of Association, all General
Meetings of Shareholders shall be presided over by the President Director
or, in his absence or disability, of which impediment no evidence to third
parties shall be required, by a member of the Direksi authorized to
represent the Direksi as provided in Paragraph 1 of Article 10, or if such
member of the Direksi is not present, then by a member of the Dewan
Komisaris designated by the Dewan Komisaris.
29
If no such member of the Direksi or of the Dewan Komisaris is present, then
the meeting shall be chaired by a person elected by the Meeting from among
those present on the basis of a majority of the votes legally cast.
The chairperson of the Meeting shall be entitled to request evidence of the
authority of the attendants at the meeting.
20.2 Minutes of a meeting of a General Meeting of Shareholders shall be drawn
up by a person present at the meeting designated by the chairperson and
shall be signed by the chairperson and two (2) shareholders representing,
respectively, the foreign shareholder(s) and the Indonesian shareholder(s).
If the minutes are drawn up by a notaris, the above signatures are not
required. Minutes of a meeting made and signed as aforesaid shall serve as
legal evidence of resolutions adopted, and of the events that happened, at
the meeting concerned and shall be binding upon all shareholders, members
of the Direksi, members of the Dewan Komisaris and the Company.
A copy of, or excerpts from, the minutes of a meeting of the General
Meeting of Shareholders or of resolutions adopted in accordance with
Paragraph 6 of Article 21 shall be deemed a legal copy or excerpt if it is
stated to be a true copy or excerpt and such statement is signed by any two
(2) members of the Direksi, one of whom is appointed by the foreign
shareholder(s), or if it is issued by the notaris who has drawn-up the
minutes concerned.
21. RESOLUTIONS AND VOTING RIGHTS AT THE GENERAL MEETINGS OF SHAREHOLDERS
---------------------------------------------------------------------
21.1 Each share shall grant to its holder the right to cast one (1) vote.
21.2 Voting concerning, persons shall be by unsigned folded ballot papers
unless the chairperson of the Meeting, without objection being raised by
any person present and entitled to vote, permits any other manner of
voting; voting concerning other matters shall be orally, unless a secret
ballot is requested by shareholders present or represented owning a
majority of the issued shares present at the meeting. With respect to any
matter requiring only a majority vote for approval, the proposal shall be
deemed to have been rejected in the case of a tie vote, provided that in
the event the voting, deals with appointment of members of the Direksi and
Dewan Komisaris, it will be so continued until one of the nominees has
obtained a majority of votes legally cast.
30
21.3 Blank votes and void votes shall be considered not legally cast, and thus
being, nonexistent shall not be counted in determining the total votes
cast.
21.4 Shareholders may be represented in the General Meeting of Shareholders by
another Direksi, the person by virtue of a power of attorney, provided that
members of the Dewan Komisaris and employees of the Company shall not be
permitted to act as proxy, of a shareholder at a General Meeting of
Shareholders and any votes cast by them as proxy are not valid. The power
of attorney shall be in the form satisfactory to the Direksi, without
prejudice to prevailing laws and regulations with respect to evidence in
the Civil Code and shall be submitted to the Direksi on or before the
General Meeting of Shareholders concerned.
21.5 Unless otherwise provided in the Articles of Association, a General
Meeting of Shareholders shall be entitled to take binding decisions at a
meeting if the owners of at least eighty five percent (85 %) of the shares
issued by the Company are present or represented by duly authorized
proxies. Unless otherwise provided in the Articles of Association,
resolutions or other actions of such General Meeting of Shareholders shall
be adopted or approved upon the affirmative vote of shareholders or their
duly, authorized proxies representing at least fifty five percent (55 %) of
the shares issued by the Company.
21.6 Shareholders may also adopt valid and binding resolutions without
convening, a General Meeting of Shareholders if all shareholders have been
notified of the text of the resolutions and all shareholders have granted
their approval as evidenced by their signed consent. Any such resolution
shall be considered as a resolution adopted by the General Meeting of
Shareholders.
21.7 The Articles of Association and all resolutions legally adopted by the
General Meeting of Shareholders in accordance with the Articles of
Association shall be binding upon all shareholders.
22. DIVIDENDS
---------
22.1 The President Director shall submit a proposal to the Annual General
Meeting,, of Shareholders relating to the appropriation of the profits of
the Company after taxation as shown in the financial statements that have
been audited by an independent and internationally reputable firm of
certified public accountants and have been approved by the General Meeting
of Shareholders, which proposal may state the amount of such profit to be
transferred to reserve as stipulated in Article 23
31
hereunder and the amount to be distributed as dividends to the
shareholders.
22.2 Such transfer of profit to be distributed to shareholders as dividends
shall be approved by the General Meeting of Shareholders in accordance
with a resolution adopted at a General Meeting of Shareholders by an
affirmative vote of shareholders or their duly authorized proxies
representing at least fifty five percent (55 %) of the shares issued by
the Company, or as provided in Paragraph 6 of Article 21, which resolution
shall also determine the time and manner of payment of the dividends. A
dividend for a share shall be payable to the person in whose name the
share is registered and recorded in the Register of Shareholders on the
date such dividend becomes payable as determined by or on the authority of
the General Meeting of Shareholders that approved the distribution of such
dividend. The Direksi shall notify all shareholders of the date on which
any dividends are available for distribution.
22.3 The Direksi, based on a resolution of the meeting of the Direksi and any
approval required pursuant to Paragraph 2 of Article 10, may at any time
distribute interim dividends to the shareholders if the financial position
of the Company so permits and if the undistributed net earnings of the
Company exceed the amounts needed for the future requirements of the
Company's business as determined by the Direksi or by prevailing laws and
regulations, provided that such interim dividends snarl be offset against
the dividends which will be distributed on the basis of a resolution of
the next Annual General Meeting of Shareholders adopted in accordance with
the provisions of the Articles of Association.
22.4 Dividends left unclaimed after five (5) years counted from the day they
are payable shall cease to be payable and shall be returned to the account
of the Company.
23. RESERVE FUND
------------
23.1 A reserve fund may be created and the amount thereof determined by the
General Meeting of Shareholders in accordance with the Articles of
Association and upon recommendation of the Direksi.
23.2 The reserve fund may be used for capital outlays or for other purposes as
decided by the General Meeting of Shareholders, but only for the benefit of
the Company.
23.3 Subject to resolutions of the General Meeting of Shareholders, the
President Director shall administer the reserve fund and endeavor that such
reserve fund shall make a profit. Any profit
32
earned from such reserve fund shall be entered in the profit and loss
account.
23.4 The General Meeting of Shareholders shall be entitled at any time to
decide to reduce the reserve fund and return the amount of such reduction
to unallocated retained earnings.
24. AMENDMENT OF THE ARTICLES OF ASSOCIATION
----------------------------------------
24.1 Amendments to the Articles of Association can, except as hereinafter
provided, only, be adopted by a' resolution of an Extraordinary General
Meeting of Shareholders at which shareholders representing at least eighty
five percent (85 %) of the shares issued by the Company are present and/or
represented. Such resolution shall be adopted upon the affirmative vote of
shareholders or their duly authorized proxies representing at least eighty
five percent (85%) of the shares issued by the Company. If at such Meeting
the number of shares represented is not sufficient to reach the quorum
stipulated, then at the earliest seven (7) days thereafter, a second
Extraordinary General Meeting of Shareholders may be convened and adopt
resolutions to amend the Articles of Association if shareholders or their
duly authorized proxies representing at least eighty five percent (85 %) of
the shares issued by the Company are present or represented and such
resolution is approved by at least a majority of the shares duly
represented at the Meeting. Such amendments may also be adopted as
provided in Paragraph 6 of Article 21.
24.2 Resolutions of the General Meeting of Shareholders regarding reductions of
the Company's authorized capital shall be published in the State Gazette of
the Republic of Indonesia, and in one or more daily newspapers circulated
in the location of the Company's domicile.
24.3 Any amendment adopted in accordance with the foregoing provisions of this
Article 24 shall be subject to any approval of the competent authorities
required by law.
25. DISSOLUTION
-----------
25.1 Any decision to dissolve the Company may be adopted by resolution of an
Extraordinary General Meeting of Shareholders at which shareholders
representing at least eighty five percent (85%) of the shares issued by the
Company are present and/or represented. Such resolution shall be adopted
upon the affirmative vote of shareholders or their duly authorized proxies
representing at least fifty five percent (55 %) of the shares
33
issued by the Company, or upon approval of a resolution adopted as provided
in Paragraph 6 of Article 21. Upon adoption of such resolution, the
liquidation of the Company's assets and payment of its liabilities shall be
carried out b the President Director, unless the General Meeting of
Shareholders shall determine otherwise.
25.2 A resolution to dissolve the Company must be registered at the office of
the Clerk of the appropriate District Court ("Xxxxxx Panitera Pengadilan
Negeri") having jurisdiction over the domicile of the Company and must be
published in the State Gazette of the Republic of Indonesia and in at least
two (2) daily newspapers circulated in the location of the Company's
domicile together with a notice thereof to the creditors.
25.3 The Articles of Association shall remain in force until the date the
account of the liquidation is lawfully ratified at a General Meeting of
Shareholders based on the approval of a majority of the votes legally cast
and a full discharge is given to all liquidators.
25.4 The remaining balance of the liquidation account shall be divided among,
the shareholders, each receiving in proportion to the paid nominal value of
the total shares respectively owned.
26. MISCELLANEOUS PROVISIONS
------------------------
All matters that are not provided for or not adequately covered in the
Articles of Association shall be decided by the General Meeting of
Shareholders in accordance with the Articles of Association.
In connection with any, amendment of the Articles of Association, the Company
give power of attorney to:
Mr. ______________, assistant of the Notaris, and ____________ both residing, in
Jakarta, singly and/or 'jointly have been given power of attorney with the right
to transfer this power of attorney to other person, to submit a request for
approval and confirmation of these Minutes of Meeting from the appropriate
authorities and to make amendments and/or additions in whatever form to these
Articles of Association which may be required in order to obtain the said
approval and confirmation and for that purpose to submit and sign all
applications and other legal documents, to choose domicile and to perform all
acts which may be required. The appearers are all known to me, Notaris.
IN WITNESS WHEREOF
34
The Chairman asked the shareholders if there were any other matters to be
brought before the meeting. Because there were none presented, the Chairman
closed the meeting at West Indonesia Time.
Therefore I, Notary made this Minutes of Meeting for using whichever needed.
35
Exhibit B
Delegations of Authority from
Board of Directors
EXHIBIT B
MINUTES OF THE MEETING
OF
THE BOARD OF DIRECTORS OF
PT RAJASA HAZANAH PERKASA
(the "Company")
--------------------------------------------------------------------------------
Date :
Place :
Present : Xx. Xxxxx Xxxxxxxxx (Director)
Xx. Xxxxx Xxxxxxxxx, acting as the sole Director of the Company explained:
1 That by action of the shareholders of the Company taken at an Extraordinary
Meeting of Shareholders of the Company dated _________, shareholder
approval was granted to approve the change of the status of the Company
from a domestic Company to become a foreign investment Company within the
framework of Law No. 1 Year 1967 as amended by Law No. 11 Year 1970,
pursuant to:
Letter of Approval of the State Minister for the Mobilization of
Investment Fund/Chairman of BKPM No. 22/V/PMA/1995 dated 26 May 1995;
and
Letter of BKPM No. 1226/A.6/1995 dated 28 September 1995 on Amendment
of Composition of Ownership of Foreign and Indonesian Partners.
2. That the Board of Directors of the Company wish to delegate the day to day
management of the Company to certain qualified individuals during an
interim period commencing as of today's date and concluding, on the date of
approval by the Minister of Justice of the amendment to the Company's
Articles of Association, Deed No. ______ dated ______ passed before Sinta
Susikto, SH, Notary in Jakarta (the "Interim Period").
Further, the Director explained that in the interest of achieving a smooth and
efficient exercise of management responsibilities during
1
the Interim Period, it is deemed necessary to delegate to certain individuals
the authorization to act for and on behalf of the Board of Directors for the
discharge of routine management responsibilities during the Interim Period.
After full consideration of the matter brought forward by the Director, the
Meeting, resolved as follows:
RESOLUTION I
That during the Interim Period the functional management activities of the
Company shall be performed by a Transition Board of Management and therefore
RESOLVED, to appoint the following individuals as the members of the Transition
Board of Management:
Mr. Suprapto Pegeng (Chairman)
Xx. Xxxx XxXxxxx
Xx. Xxxx Xxxxx Xxxxxxx
FURTHER RESOLVED, that the Transition Board of Management shall determine the
distribution of work among its members.
The relationship among the members and their meeting procedures shall be
governed by the provisions in the Articles of Association (as lastly amended)
applicable to the relationship among the members of the Board of Directors and
the meeting of the Board of Directors of the Company and the Shareholders
Agreement between and among the Company, PT Bina Reksa Perdana, International
Wireless Communications, and PT Deltona Satya Dinamika, dated ____ November
1995.
RESOLUTION II
-------------
RESOLVED, to authorize, empower and direct the Transition Board of Management to
perform routine management responsibilities with full power and authority on
behalf, in the name, on the account and for the benefit of the Board of
Directors, to represent the Company within and outside the Courts of Justice
with regard to all matters and be entitled to take all actions pertaining to
management and ownership affairs.
FURTHER RESOLVED, that any three members of the Transition Board of Management,
one of whom shall be an individual appointed by PT Bina Reksa Perdana, shall be
entitled to represent the Transition Board of Management, with the limitations
set forth below;
The affirmative vote of all members of the Transition Board of Management
shall be required for the following actions:
2
(a) designation of and change to the Company bank account signatories;
(b) loans, guarantees or trade credits to third parties in amounts
exceeding, US$25,000, whether in a single or a series of related
transaction;
(c) contracts, agreements or transactions with any shareholders or with
any of their affiliated companies which involve amounts in annual
value, in excess of US$75,000. in a single or a series of related
transactions;
(d) borrowing money in amounts greater than the Rupiah equivalent of
US$250,000 (provided that drawing moneys from an established credit or
loan account which previously has been authorized in the approved
annual business plan shall not be regarded as borrowing for the
purpose of this provision;
(e) determining employee compensation guidelines;
(f) writing off any accounts receivables or releasing any claims of the
Company in excess of US$100,000;
(g) any expenditure greater than the Rupiah equivalent of US$250,000,
provided that expenditures approved in the approved annual business
plan or approved budget shall not be regarded as expenditures for the
purpose of this provision;
(h) material amendments to the authorization policies as set forth from
time to time by the General Meeting of, Shareholders;
(i) acquiring by purchase, lease or any other method movable or immovable
property having a price (in the case of leasing, an annual lease
price) in excess of the equivalent in any currency of US$250,000 for
any individual transaction and US$1,000,000 in the aggregate per year
or such amount as otherwise approved by the Transition Board of
Supervision from time to time;
(j) selling or disposing of movable or immovable property having a value
exceeding the limit from time to time determined by the Transition
Board of Supervision;
(k) participating in any other business enterprise, including without
limitation establishing any subsidiary, without
3
prejudice to any approvals that may be required from competent
authorities;
(l) establishing lines of credit or other credit facilities;
(m) entering into, amending or terminating contracts in which the goods
and/or services to be purchased, sold or leased having a value in
excess of the equivalent in any currency of US$250,000 for any
individual transaction and US$1,000,000 in the aggregate per year, or
such amounts as otherwise approved by the Transition Board of
Supervision from time to time;
Prior approval by the Transition Board of Supervision shall be required for
the following actions:
(a) borrowing any money (provided that drawing money from an established
credit or loan account which has been so approved shall not be
regarded as borrowing for the purpose of this provision) having a
value in excess of the equivalent in any currency of US$500,000 for
any individual transaction or such amount as otherwise approved by the
Transition Board of Supervision from time to time;
(b) binding the Company as guarantor and/or extending loans to or on
behalf of third parties;
(c) granting any hypothecation, fiduciary transfer of proprietary rights
for security, purposes, pledge or other security interest or priority
claim in any property or assets of the Company;
(d) issuing interim dividends;
(e) transferring, acquiring or granting any licenses, sublicenses or
rights with respect to telecommunication technology, technical know-
how, trade secrets, patents, copyrights, trademarks, tradenames or
other intellectual property;
(f) undertaking any new business or substantially expanding any existing
business.
(g) issuance of securities by the Company on a stock exchange.
Towards third parties the approval of the Transition Board of Supervision
shall be sufficiently proven by the signature on the document concerned of,
or by a minutes of the meeting of the Transition Board of Supervision.
4
Since there were no other matters to be considered, the Director closed the
meeting, and requested Mr. _________ to draw up the minutes of the Meeting to be
used as evidence whenever and wherever necessary.
Made and executed in Jakarta and signed by the Director on behalf of those
present.
Director
By /s/
-------------------------
Name : Xxxxx Xxxxxxxxx
Title : Director
5
Exhibit C
Delegations of Authority from
Board of Commissioners
EXHIBIT C
MINUTES OF THE MEETING
OF
THE BOARD OF COMMISSIONERS
PT RAJASA HAZANAH PERKASA
(the "Company")
--------------------------------------------------------------------------------
Date :
Place :
Present : Mr. Hutomo Mandala Putra (Commissioner)
Mr. Hutomo Mandala Putra, acting as the sole Commissioner of the Company
explained:
1. That by action of the shareholders of the Company taken at an Extraordinary
General Meeting, of Shareholders of the Company dated shareholder approval
was granted to approve the change of the status of the Company from a
domestic Company to become a foreign investment Company within the
framework of Law No. 1 Year 1967 as amended by Law No. 11 Year 1970,
pursuant to:
Letter of Approval of the State Minister for the Mobilization of
Investment Fund/Chairman of BKPM No. 22/V/PMA-/1995 dated 26 May
1995; and
Letter of BKPM No. 1226/A.6/1995 dated 28 September 1995 on
Amendment of Composition of Ownership of Foreign and Indonesian
Partners.
2. That the Board of Commissioners of the Company wish to delegate the day to
dam, supervision of the Board of Directors of the Company to certain
qualified individuals during an interim period commencing as of today's
date and concluding on the date of approval by the Minister of Justice of
the amendment to the Company's Articles of Association, Deed No. ____ dated
____,
1
passed before Sinta Susikto, SH, Notary in Jakarta (the "Interim Period").
Further, the Commissioner explained that in the interest of achieving a smooth
and efficient exercise of supervisory responsibilities during the Interim
Period, it is deemed necessary, to delegate to certain individuals the
authorization to act for and on behalf of the Board of Commissioners for the
discharge of routine supervisory responsibilities during the Interim Period.
After full consideration of the matter brought forward by the Commissioner, the
Meeting resolved as follows:
RESOLUTION I
------------
That during,, the Interim Period the supervisory responsibilities of the Board
of Commissioners shall be performed by a Transition Board of Supervision and
therefore RESOLVED, to appoint the following, individuals as the members of the
Interim Supervisory Board:
Mr. Hutomo Mandala Putra (Chairman)
Xx. Xxxxx Xxxxxxxxx
Xxx. Xxxx Xxxxx Xxxxx Xxxxxxx
Xx. Xxx Xxxx
FURTHER RESOLVED, that the Transition Board of Supervision shall determine the
distribution of work among its members. However, the relationship among the
members and their meeting procedures shall be governed by the provisions in the
Articles of Association (as lastly, amended) applicable to the relationship
among the members of the Board of Commissioners and the meeting of the Board of
Commissioners and the Shareholders Agreement between and among the Company, PT
Bina Reksa Perdana, International Wireless Communications, and PT Deltona Satya
Dinamika, dated November, 1995.
RESOLUTION II
-------------
RESOLVED, to authorize, empower and direct the Transition Board of Supervision
to perform routine supervisory responsibilities with full power and authority on
behalf, in the name, on the account and for the benefit of the Board of
Commissioners, to take all actions necessary or required of the Board of
Commissioners by the Articles of Association to supervise the management of the
Company by the Transition Board of Management during the Interim Period.
2
FURTHER RESOLVED, that any approval given by the Transition Board of Supervision
to the Transition Board of Management shall be in accordance with said Articles
of Association.
Since there were no other matters to be considered, the Commissioner closed the
meeting and requested Mr. __________ to draw up the Minutes of the Meeting to
be used as evidence whenever and wherever necessary.
Made and executed in Jakarta and signed by the Commissioner.
Commissioner
By /s/
---------------------------
Name : Hutomo Mandala Putra
Title : Commissioner
3
Exhibit D
RHP Financial Statement for years ending 31 December 1993 and 31 December 1994
[Incorporated by reference to Registrant's
Registration Statement on Form S-1, File No. 333-11987
Consolidated Financial Statements]
Exhibit E
Tahir Debt Repayment Schedule
RECEIPT
No. Date Amount(Rp.) Check No.
1. 25 Jan 1995 300.000.000.00
2. 25 Feb 1995 150.000.000.00
3. 25 Mar 1995 150.000.000.00
4. 25 Apr 1995 150.000.000.00
5. 25 May 1995 150.000.000.00
6. 25 Jun 1995 150.000.000.00
7. 25 Jul 1995 300.000.000.00
8. 25 Aug 1995 350.000.000.00
9. 25 Sep 1995 350.000.000.00
10. 25 Oct 1995 350.000.000.00 GH 360880
11. 25 Nov 1995 350.000.000.00 GH 360881
12. 25 Dec 1995 350.000.000.00 GH 360882
13. 24 Jan 1996 350.000.000.00 GH 360883
14. 24 Feb 1996 350.000.000.00 GH 360884
15. 26 Mar 1996 350.000.000.00 GH 360885
16. 24 Apr 1996 350.000.000.00 GH 360886
17. 25 May 1996 350.000.000.00 GH 360887
18. 24 Jun 1996 350.000.000.00 GH 360888
19. 25 Jul 1996 350.000.000.00 GH 360889
20. 24 Aug 1996 350.000.000.00 GH 360890
21. 24 Sep 1996 350.000.000.00 GH 360891
22. 25 Oct 1996 350.000.000.00 GH 360892
23. 24 Nov 1996 400.000.000.00 GH 360893
24. 25 Dec 1996 400.000.000.00 GH 360894
25. 24 Jan 1997 400.000.000.00 GH 360895
26. 24 Feb 1997 400.000.000.00 GH 360896
27. 25 Mar 1997 400.000.000.00 GH 360897
Total 8,600,000,000.00
RHP has paid in full up to the 9th payment, 25 September 1995 the amount of Rp.
2.050.000.000 (two billion fifty million Rupiahs).
Jakarta, 9 November 1995
Receiver,
[Seal] /s/
Hari Indra Utama Tahir
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