Exhibit 4.6
CONDITIONAL SALE AND PURCHASE AGREEMENT
BY AND BETWEEN
PERUSAHAAN PERSEROAN (PERSERO)
PT TELEKOMUNIKASI INDONESIA TBK.
AS SELLER
AND
SINGAPORE TELECOM MOBILE PTE LTD
AS PURCHASER
RELATING TO THE ACQUISITION OF SOME OF THE SHARES IN
PT TELEKOMUNIKASI SELULAR
DATED 3 APRIL 2002
CONDITIONAL SALE AND PURCHASE
AGREEMENT
CONDITIONAL SALE AND PURCHASE AGREEMENT, dated 3 April 2002, by and
between PERUSAHAAN PERSEROAN (PERSERO) PT TELEKOMUNIKASI INDONESIA TBK,
a limited liability public state-owned company organized under the laws
of the Republic of Indonesia with its office at Xx. Xxxxxx Xx. 0,
Xxxxxxx 00000, Xxxxxxxxx, as Seller, and SINGAPORE TELECOM MOBILE PTE
LTD, a company incorporated under the laws of Singapore whose principal
address is 00 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 000000, as Purchaser.
CAPITALIZED TERMS USED IN THIS AGREEMENT HAVE THE MEANINGS ASSIGNED TO
THEM IN ARTICLE I HEREOF.
WHEREAS, Seller wishes to sell to Purchaser and Purchaser wishes to
purchase from Seller 12.72% of the paid up capital or twenty three
thousand two hundred and twenty three (23,223) ordinary shares of
nominal value Rp. 1,000,000 per share, of PT Telekomunikasi Selular, a
limited liability company organized under the laws of the Republic of
Indonesia;
NOW, THEREFORE, intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions For all purposes of this Agreement, except as
otherwise expressly provided or unless the context clearly requires
otherwise:
"AFFILIATE" shall mean in respect of any Person any other Person
Controlling, Controlled by or under common Control with that Person.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation or
other organization, whether incorporated or unincorporated, directly
or indirectly owned or Controlled by such Person or by any one or more
of its Subsidiaries, or by such Person and one or more of its
Subsidiaries.
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"TELKOM MOBILE ASSETS" means the assets sold or transferred by Seller
to the Company under the TM Primary Documents (as defined in Section
4.28).
"GOVERNMENTAL ENTITY" shall mean a court, arbitral tribunal,
administrative agency or commission or other governmental or regulatory
authority or agency of or provincial or local government in the
Republic of Indonesia or elsewhere in the world.
"BAPEPAM" shall mean the Capital Market Supervisory Agency of the
Republic of Indonesia.
"BKPM" shall mean the Capital Investment Coordination Board of the
Republic of Indonesia.
"SPECIAL REGISTER" means the register containing a record of all shares
owned by each Director and Commissioner of the Company, maintained by
the Company in accordance with the Indonesian Companies Law No 1 of
1995.
"MOIT" shall mean the Ministry of industry and Trade of the Republic of
Indonesia.
"MOC" shall mean the Ministry of Communications of the Republic of
Indonesia.
"MOJHR" shall mean the Ministry of Justice and Human Rights of the
Republic of Indonesia.
"DGT" shall mean the Directorate General of Tax of the Republic of
Indonesia.
"U.S. DOLLAR" and "US$" shall mean the lawful currency of the United
States of America.
"INTELLECTUAL PROPERTY" shall mean all intellectual property rights
including but not limited to trade marks, service marks, trade names,
logos, get-up, patents, inventions, registered and unregistered design
rights, copyrights, trade secrets, software rights, semi-conductor
topography rights, database rights and all other similar proprietary
rights which may subsist in any part of the world (including Know-how)
including, where such rights are obtained or enhanced by registration,
any registration of such rights and applications and rights to apply
for such registrations.
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"PURCHASE PRICE" shall mean four hundred and twenty nine million U.S.
Dollars (US$429,000,000).
"BUSINESS DAY" shall mean any day (other than a Saturday, Sunday or
public holiday) on which banks in Jakarta and Singapore are required or
permitted to remain open for the conduct of regular business.
"REAL PROPERTIES" shall mean all real properties that are owned,
occupied or used by the Company or that are reflected as an asset of
the Company on the Balance Sheet and "REAL PROPERTY" shall mean any of
them.
"INDONESIAN BANKRUPTCY LAW" shall mean the Bankruptcy Law
(Failissementveroordening) of 1906, as amended by the Government
Regulation in Lieu of Law No. 1 Year 1998 regarding Amendments to the
Bankruptcy Law, and ratified by the Parliament of the Republic of
Indonesia as Law No. 4 Year 1998.
"ENVIRONMENTAL LAWS" means the laws and regulations of Indonesia
(including but not limited to law No. 23 of 1997 and its implementing
regulations) and all ministerial decrees, instructions and letters
issued pursuant to such laws and regulations providing for:
(a) the protection of, and/or prevention of harm or damage to, the
Environment and/or the provision of remedies or compensation
for harm or damage to the Environment;
(b) health and safety matters (including, without limitation, laws
relating to workers and public or consumer health and safety).
"INDEBTEDNESS" shall mean (i) all indebtedness for borrowed money or
for the deferred purchase price of property or services (other than
trade liabilities incurred in the ordinary course of business and
payable in accordance with its customary practice), (ii) any other
indebtedness that is evidenced by a note, bond, debenture or similar
instrument, (iii) all obligations under financing leases, (iv) all
obligations in respect of bankers acceptances issued or created, (v)
all liabilities secured by any lien on any property (other than created
by operation of law) and (vi) all financial guarantee
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obligations.
"LICENSES" means the GSM Licenses and Other Licenses defined in Section
4.8.
"DCS 1800 LICENSE" shall mean the license issued pursuant to the letter
from the Minister of Communication No. KP. 242 Year 2001, dated 25
October 2001, which granted to Seller an operational license to operate
DCS 1800 national cellular telephone mobile network.
"FREQUENCY LICENSE" shall mean the license granted to Seller to use the
DCS 1800 radio frequency band 1765 to 1780 Mhz (uplink) and 1860 to
1875 Mhz (downlink), pursuant to the letter of the DGPT No. 601/TU/PT.
208/DITBINFREK/00 dated 13 September 2000.
"EXCLUSIVITY PERIOD" shall mean the period beginning on the date hereof
and ending on the earlier of (i) the Closing Date or (ii) the date when
it is determined that Closing will not occur in accordance with Article
VIII.
"CONTROL" shall mean with respect to any Person, the power to direct or
to cause the direction of the business and affairs of such Person or
the power to elect or appoint a majority of the board of directors (or
other body performing similar functions) of such Person, whether
through the ownership of voting securities, by contract or otherwise
and "CONTROLLED" and "CONTROLLING" shall be construed accordingly.
"DAMAGES" of a Person shall mean, collectively, any loss, liability,
claim damage, expense (including costs of investigation and defence and
reasonable attorney's fees) or any diminution of value, whether or not
involving a third party claim, suffered or incurred by that Person and
for which Seller and Purchaser shall have agreed the amount or for
which a final determination has been made pursuant to Section 10.8.
"KNOW-HOW" shall mean confidential industrial and commercial
information and techniques in any form (including paper, electronically
or optically stored data, magnetic media, film and microfilm) including
without limitation drawings, test results, reports,
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project reports and testing procedures, instruction and training
manuals, tables of operating conditions, market forecasts, lists and
particulars of customers and suppliers.
"DISCLOSURE SCHEDULE" shall mean the Initial Purchaser Disclosure
Schedule, the Closing Purchaser Disclosure Schedule, the Initial Seller
Disclosure Schedule and the Closing Seller Disclosure Schedule.
"INITIAL PURCHASER DISCLOSURE SCHEDULE" shall mean the disclosure
schedule, of even date herewith, prepared and signed by Purchaser and
delivered to Seller simultaneously with the execution and delivery
hereof and, for the avoidance of doubt, shall not include any amendment
or supplement thereto.
"INITIAL SELLER DISCLOSURE SCHEDULE" shall mean the disclosure
schedule, of even date herewith, prepared and signed by Seller and
delivered to Purchaser simultaneously with the execution and delivery
hereof and as amended by notice in writing to Purchaser on or before
the Pre-Closing Date.
"PURCHASER DISCLOSURE SCHEDULE" shall mean the Initial Purchaser
Disclosure Schedule and the Closing Purchaser Disclosure Schedule.
"SELLER DISCLOSURE SCHEDULE" shall mean the Initial Seller Disclosure
Schedule and the Closing Seller Disclosure Schedule.
"CLOSING PURCHASER DISCLOSURE SCHEDULE" shall mean the disclosure
schedule prepared and signed by Purchaser and delivered to Seller at
the Closing Date.
"CLOSING SELLER DISCLOSURE SCHEDULE" shall mean the disclosure schedule
prepared and signed by Seller and delivered to Purchaser at the Closing
Date.
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"FINANCIAL STATEMENTS" shall mean the balance sheet of the Company as
of December 31, 2001 and the profit and loss account for the year ended
December 31, 2001 together with the related statements of income,
changes in shareholders' equity and cash flows for the fiscal year then
ended, including the notes thereto, all audited by Prasetio Ulomo
(Xxxxxx Xxxxxxxx), independent certified public accountants, whose
reports thereon are included therein and copies of which are attached
to this Agreement as Attachment A.
"MANAGEMENT REPORTS" shall mean the management reports of the Company
prepared since the Balance Sheet Date as attached to the Seller
Disclosure Schedule in the form which has been agreed by Seller and
Purchaser as of the date hereof (as such form may be changed by
agreement from time to time).
"TAX RETURN" shall mean any return, declaration, report, claim for
refund, or information return or statement relating to Taxes, including
any such document prepared on a consolidated, combined or unitary basis
and also including any schedule or attachment thereto, and including
any amendment thereof.
"ENVIRONMENT" means a unity of space with all objects, capacities,
conditions and living creatures, including human beings and their
behaviour which will affect the sustainability of life and welfare of
human beings and other living creatures as defined under the Indonesian
Environmental Law No. 23 of 1997.
"BALANCE SHEET" shall mean the most recent audited balance sheet of the
Company included in the Financial Statements.
"TAX" or "TAXES" shall mean all taxes, charges, fees, deductions,
withholding, duties, levies, penalties or other assessments imposed,
levied, collected, withheld or assessed by any Governmental Entity, and
shall include interest, penalties or additions attributable thereto or
attributable to any failure to comply with any requirement regarding
Tax Returns.
"ENCUMBRANCES" shall mean any and all encumbrances, liens, charges,
security interests, options, claims, mortgages, fiduciary transfers,
hak
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tanggungan, xxx xxxxx, pledges, proxies, voting agreements,
obligations, understandings or arrangements or other restrictions on
title or transfer of any nature whatsoever.
"PURCHASER" shall mean Singapore Telecom Mobile Pte Ltd, a company
incorporated under the laws of Singapore.
"KNOWLEDGE" of any Person shall mean the actual knowledge of each of
the directors and commissioners of such Person and the actual knowledge
of, in the case of Seller, Mulia Panahatan Tambunan, Yusuf Kurnia and
Woeryanto Soeradji, being directors of the Company nominated by or on
behalf of Seller.
"SELLER" shall mean Perusahaan Perseroan (Persero) PT Telekomunikasi
Indonesia Tbk, a limited liability public state-owned company organized
under the laws of the Republic of Indonesia.
"CLOSING" shall mean the closing of the sale and transfer of the Sale
Shares by Seller to Purchaser.
"THIS AGREEMENT" shall mean this Conditional Sale and Purchase
Agreement, together with the Disclosure Schedule.
"SHAREHOLDERS AGREEMENT" shall mean that certain shareholders
agreement, dated the date hereof, by and among the Company, Seller and
Purchaser.
"DISPUTE" shall have the meaning assigned to such term in Section
10.8(a).
"COMPANY" shall mean PT Telekomunikasi Selular, a limited liability
company organized under the laws of the Republic of Indonesia.
"CONSENT" shall mean, with respect to any Governmental Entity or any
other Person, any approval, consent, ratification, permit, license,
waiver or other authorization of, filing with or notice to such
Governmental Entity or other Person, as the case may be.
"PERSON" shall mean a natural person, partnership, corporation, limited
liability company, business
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trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Entity or other entity or organization.
"INDEMNIFYING PARTY" shall have the meaning assigned to such term in
Section 9.5.
"INDEMNIFIED PARTY" shall have the meaning assigned to such term in
Section 9.5.
"VOTING DEBT" shall mean, with respect to any Person, indebtedness
having the right to vote at a General Meeting of Shareholders of such
Person and debt convertible into securities having such rights.
"EMPLOYEE PLAN" shall mean each deferred compensation, incentive
compensation, stock purchase, stock option and other equity
compensation or incentive plan, program, agreement or arrangement, each
severance or termination pay, medical, surgical, hospitalization, life
insurance and other plan, and each profit-sharing, bonus or pension or
retirement or annuity plan, fund or program as stipulated under
Indonesian Manpower law and relevant regulations including but not
limited to Law No. 3 of 1992 regarding the Employee Social Security
Program (Jamsostek), Law No. 11 of 1992 regarding Pension Fund, and
Decree of the Minister of Manpower No. Kep-150/Men/2000 regarding the
Settlement of Termination of Employment and the Determination of
Severance Pay, Service Pay and Compensation in a Company; in each case,
that is sponsored, maintained or contributed to or required to be
contributed to by the Company or to which the Company is party for the
benefit of any director, officer, commisioner, employee or former
employee of the Company.
"ACQUISITION PROPOSAL" shall mean any proposal or offer made by any
Person other than Purchaser or any Subsidiary of Purchaser to acquire
all or a substantial part of the business or properties of the Company
or the Sale Shares, whether by merger, tender, offer, exchange offer,
sale of assets or similar transactions involving the Company or any
division or operating or principal business unit of the Company.
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"PROCEEDING" shall mean any claim, action, suit, enquiry, proceeding,
litigation, prosecution, arbitration or investigation by or before any
Governmental Entity.
"INDONESIAN GAAP" shall mean generally accepted accounting principles
in the Republic of Indonesia established by the Indonesian Accounting
Association as in effect at the relevant time.
"SHARES" shall mean the ordinary shares of nominal value Rp.1,000,000
per share of the Company.
"SALE SHARES" shall mean twenty three thousand two hundred and twenty
three (23,223) Shares held by Seller representing as at the date hereof
and at Closing 12.72% of the issued and paid-up Shares.
"LEASE" shall mean each lease pursuant to which the Company leases any
property.
"STI" shall mean Singapore Telecom International Pte Ltd, a limited
liability company incorporated under the laws of Singapore.
"BALANCE SHEET DATE" shall mean the date of the Balance Sheet.
"CLOSING DATE" shall mean the date and time at which the Closing
occurs.
"PRO-CLOSING DATE" shall mean the date on which the conditions set
forth in Sections 7.1, 7.2(a), 7.2(c)(i) and 7.3(b)(i) have been
satisfied or waived by Seller or Purchaser, as the case may be.
"TELKOM MOBILE" shall mean the business unit within the Seller formed
to implement the DCS 1800 License and the Frequency License.
"TRANSACTION" shall mean the sale and purchase of the Sale Shares and
the performance by the parties hereto of their other respective
obligations under this Agreement.
"EXCLUDED CLAIMS" means any claim, or a group of claims relating to a
series of connected matters, for Damages by Purchaser against Seller in
an amount of less than or equal to US$10,000 per individual claim or
group of such claims.
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"PERMITTED CLAIMS" means any claim, or a group of claims relating to a
series of connected matters, for Damages by Purchaser against Seller in
an amount of more than US$10,000 per individual claim or group of such
claims.
"ARBITRATION LAW 30" shall have the meaning assigned to such term in
Section 10.8(c).
"U.S. GAAP" shall mean generally accepted accounting principles in the
United States of America.
Section 1.2 Interpretation
(a) When a reference is made in this Agreement to a Section,
Article or Schedule, such reference shall be to a Section or
Article of this Agreement or to a Schedule to this Agreement
unless otherwise clearly indicated to the contrary.
(b) Whenever the words "include", "includes" or "including" are
used in this Agreement they shall be deemed to be followed by
the words "without limitation".
(c) The words "hereof", "herein" and "herewith" and words of
similar import shall, unless otherwise stated, be construed to
refer to this Agreement as a whole and not to any particular
provision of this Agreement.
(d) The meaning assigned to each term defined herein shall be
equally applicable to both the singular and the plural forms
of such term, and words denoting any gender shall include all
genders. Where a word or phrase is defined herein, each of its
other grammatical forms shall have a corresponding meaning.
(e) A reference to any party to this Agreement or any other
agreement or document shall include such party's successors
and permitted assigns.
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(f) A reference to any legislation or to any provision of any
legislation shall include any amendment to, and any
modification or re-enactment thereof, any legislative
provision substituted therefor and all regulations and
statutory instruments issued thereunder or pursuant thereto.
(g) The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the
parties hereto, and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
(h) Any reference to information means books, records or other
information in any form including paper, electronically or
optically stored data, magnetic media, film and microfilm.
(i) Headings shall be ignored in construing this Agreement.
ARTICLE II
PURCHASE AND SALE OF SHARES
Section 2.1 Sale and Transfer of Sale Shares. Subject to the terms and
on the conditions set forth in this Agreement, including the
satisfaction as of the Closing Date of the conditions set forth in
Sections 7.1, 7.2 and 7.3, or the waiver of such conditions by Seller
or Purchaser, as the case may be, at the Closing, Seller shall sell,
convey, assign, transfer and deliver to Purchaser the Sale Shares with
full title, free and clear of all Encumbrances and all other
limitations and restrictions (including any restriction on the right to
vote, sell or otherwise dispose of the Sale Shares but subject to those
contained in the Shareholders Agreement and articles of association of
the Company) and Purchaser shall at Closing purchase the Sale Shares
relying on (amongst other things) the several representations,
warranties and undertakings by Seller contained in this Agreement.
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Section 2.2 The Purchase Price. Subject to the terms and on the
conditions set forth in this Agreement, including the satisfaction as
of the Closing Date of the conditions set forth in Sections 7.1, 7.2
and 7.3, or the waiver of such conditions by Seller or Purchaser, as
the case may be, in consideration of the aforesaid sale, conveyance,
assignment, transfer and delivery to Purchaser of the Sale Shares and
together with all rights and advantages now and hereafter attaching
thereto, Purchaser shall pay to Seller the Purchase Price in accordance
with the provisions of Section 3.2.
The parties acknowledge that this transaction is being conducted under
Article 103(6) of the Indonesian Company Law.
ARTICLE III
THE CLOSING; PAYMENT OF PURCHASE PRICE
Section 3.1 The Closing. The closing of the sale and purchase of the
Sale Shares by Seller and Purchaser shall take place at the offices of
PT Telekomunikasi Selular at Graha Surya Internusa, 18th Floor, Jl.
Hajjah Xxxxxxxx Xxxxxx Xxxx Xxx. X-0, Xxxxxxx 00000 at 10:00 a.m.,
local time, fifteen (15) Business Days after the satisfaction of the
conditions set forth in Sections 7.1, 7.2(a), 7.2(c)(i) and 7.3(b)(i),
or the waiver of such conditions by Seller or Purchaser, as the case
may be, or, on such earlier date as the parties may agree.
Section 3.2 Payment of Purchase Price and Delivery of Sale Shares. Upon
the satisfaction or waiver, as the case may be, of the conditions set
forth in Sections 7.1 to 7.3 and in connection with the occurrence of
the Closing: (i) Purchaser shall pay the Purchase Price on the Closing
Date to a bank account of Seller nominated in writing by Seller at
least five (5) Business Days prior to the Closing Date; and (ii) Seller
shall deliver to Purchaser the Sale Shares.
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Upon receipt of the Purchase Price, Seller shall promptly deliver to
Purchaser a written acknowledgment thereof and upon receipt of the Sale
Shares, Purchaser shall promptly deliver to Seller a written
acknowledgement thereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF SELLER
Except for the matters fully and fairly disclosed in the Seller
Disclosure Schedule, Seller represents and warrants to Purchaser that
all of the statements contained in this Article IV are true and correct
as of the date of this Agreement (save insofar as any such statement is
expressed to be made only as of the Closing Date) and will be true and
correct at the Closing Date as if they had been given again at the
Closing Date. Each exception set forth in the Seller Disclosure
Schedule is identified by reference to, or has been grouped under a
heading referring to, a Section of this Agreement. Each such exception
shall be deemed to be disclosed with respect to each such Section and
to each other Section to which it reasonably relates. For the avoidance
of doubt, statements set forth in the Seller Disclosure Schedule do not
expand the scope of the representations and warranties of Seller in
this Article IV. Facts, matters or circumstances disclosed in the
Closing Seller Disclosure Schedule or disclosed by Seller to Purchaser
from time to time shall not affect the Purchaser's right to terminate
this Agreement pursuant to Sections 8.1(d)(i) and 8.1(d)(iv).
Section 4.1 Legal Power; Organization. Seller is a limited liability
public state-owned company duly organized and validly existing under
the laws of the Republic of Indonesia, has all requisite power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder.
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Section 4.2 Authorization; Validity of Agreement. Seller has taken all
corporate action necessary to execute and deliver this Agreement. The
performance by Seller of its obligations hereunder has been duly
authorized by the Board of Commissioners of Seller and no other
corporate action on the part of Seller is necessary to authorize the
performance by Seller of its obligations hereunder, except for the
approval of the General Meeting of Shareholders of Seller. At and as of
the Closing Date, Seller represents and warrants that the approval of
the General Meeting of Shareholders of Seller of the performance by
Seller of its obligations hereunder has been obtained and remains in
full force and effect.
Section 4.3 Binding Agreement. This Agreement has been duly executed
and delivered by Seller and this Agreement constitutes a legal, valid
and binding obligation of Seller, enforceable against Seller in
accordance with its terms.
Section 4.4 Seller's Consents and Approvals; No Conflicts, Violations
or Defaults. Except for the Consents referred to in Sections 7.1 and
7.2 neither the execution or delivery of this Agreement by Seller nor
the performance by Seller of its obligations hereunder will:
(i) conflict with or result in any breach of any provision of the
deed of establishment and articles of association of Seller;
(ii) require any Consent of any Governmental Entity;
(iii) require any Consent under, or result in a violation or breach
of, or constitute (with or without due notice or the passage
of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration) under,
any of the terms, conditions or provisions of any agreement,
license, contract, instrument, undertaking or obligation to
which Seller is a party or by which Seller or any of its
properties or assets is bound;
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(iv) violate any binding order, writ or injunction of an Indonesian
court or arbitral body; or
(v) violate any decree, statute, rule or regulation applicable to
Seller or any of its properties or assets.
excluding from the foregoing clauses (iii) and (v) such violations,
breaches or defaults which would not, individually or in the aggregate,
have an adverse effect on the Seller's obligations and its
representations and warranties under this Agreement, its ability to
consummate the purchase and sale of the Sale Shares and to transfer
title to the Sale Shares or the enforceability against Seller or
validity of this Agreement.
As of the Closing Date, Seller represents and warrants that each
Consent referred to in Section 7.1 has been obtained and remains in
full force and effect.
Section 4.5 Legal Proceedings. There are no Proceedings pending or, to
Seller's Knowledge, threatened against, involving or affecting Seller
which question or challenge the validity of this Agreement or any
action taken or to be taken by Seller pursuant to this Agreement or in
connection with the performance by Seller of its obligations hereunder
or which could be reasonably expected to result in the issuance of a
judgment, order or decree prohibiting or making illegal the performance
by Seller of any of its obligations hereunder. Seller is not subject to
any judgment, order or decree prohibiting or making illegal the
performance by Seller of any of its obligations hereunder.
Section 4.6 Share Ownership. Seller is the legal owner of and has full
title to the Sale Shares. Neither Seller nor any Subsidiary of Seller
owns securities issued by, or convertible obligations of, the Company
other than the Sale Shares and 118,677 further shares held by the
Seller in the issued capital of the Company (constituting 65% of the
total issued share capital of the Company). The Sale Shares are now,
and will be at all times
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between the date hereof and the Closing Date, owned by Seller and held
by Seller for the sole and exclusive benefit of Seller, free and clear
of all Encumbrances whatsoever (except for those matters set out in the
Shareholders Agreement or the articles of association of the Company).
Section 4.7 Legal Title Conveyed. As of the Closing Date only, Seller
has conveyed to Purchaser full title to the Sale Shares, free and clear
of all Encumbrances and all other limitations and restrictions
(including any restriction on the right to vote, sell or otherwise
dispose of the Sale Shares (except for those matters set out in the
Shareholders Agreement or the articles of association of the Company)).
Section 4.8 Organization; Qualification of Company.
(a) The Company is a limited liability company duly organized and
validly existing under the laws of the Republic of Indonesia,
with full corporate power and authority and is duly licensed
to carry on its business as it is now being conducted and to
own or use the properties and assets it now purports to own
and use.
(b) The Company has all licenses, authorizations, approvals and
authorities and necessary for operating a nationwide GSM/DCS
service using both the 900 Mhz and 1800 Mhz frequencies
currently allocated to it (the "GSM Licenses") and has a
minimum spectrum allocation of 7.5 Mhz under each of the 900
Mhz and 1800 Mhz frequency ranges. The GSM Licenses are in
full force and effect and have been and are being complied
with. There is no investigation, enquiry or proceeding which
has been notified in writing to the Company and is outstanding
or which, to Seller's Knowledge, is anticipated which is
likely to result in the suspension, cancellation, non-
renewal, modification or revocation of any of such GSM
Licenses (whether as a result of the entry into or completion
of this Agreement or otherwise);
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(c) All licenses, authorizations, approvals and authorities
("Other Licenses") necessary for the carrying on of the
businesses and operations of the Company have been obtained,
are in full force and effect and have been and are being
complied with in all material respects such as not to have a
material adverse impact on the businesses or operations of the
Company, and there is no investigation, enquiry or proceeding
which has been notified in writing to the Company and is
outstanding or which, to Seller's Knowledge, is anticipated
which is likely to result in the suspension, cancellation,
non-renewal, modification or revocation of any of such Other
Licenses (whether as a result of the entry into or completion
of this Agreement or otherwise);
(d) No order has been made, resolution passed or meeting convened
for winding up or liquidation of or written notice received by
the Company of any petition for the bankruptcy of the Company
or for any suspension of payments or other similar arrangement
under the Indonesian Bankruptcy Law. There are no cases or
proceedings under any applicable bankruptcy, delay of payment
or similar laws in Indonesia concerning the Company nor has
any curator or administrator been appointed in respect of the
whole or any part of the business or assets of the Company. To
Seller's Knowledge, the Company has received no claims or
demands which would justify in the cases or proceedings under
any applicable bankruptcy, delay of payment or similar laws in
Indonesia concerning the Company;
Section 4.9 Company's Consents and Approvals; No Conflicts, Violations
or Defaults. Except for the Consents referred to in Sections 7.1 and
7.2 neither the execution or delivery of this Agreement by Seller nor
the performance by Seller of its obligations hereunder will:
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(a) conflict with or result in any breach of any provision of the
deed of establishment and articles of association of the
Company;
(b) require that the Company obtain any Consent of any
Governmental Entity;
(c) require any Consent under, or result in a violation or breach
of, or constitute (with or without due notice or the passage
of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration) under,
any of the terms, conditions or provisions of any agreement,
license, contract, instrument, undertaking or obligation to
which the Company is a party or by which the Company or any of
its properties or assets is bound;
(d) violate any binding order, writ or injunction of an Indonesian
court or arbitral body;
(e) violate any decree, statute, rule or regulation applicable to
the Company or any of its properties or assets; or
(f) result in the imposition of any lien on any of the properties
or assets of the Company,
excluding from the foregoing clauses (c), (e) and (f) such violations,
breaches, defaults or impositions which would not, individually or in
the aggregate, have an adverse effect on the prospects, consolidated
financial condition, business or results of operations of the Company.
Section 4.10 Capitalization. The authorized capital stock of the
Company consists of Six Hundred Fifty Thousand (650,000) Shares of
which One Hundred Eighty-Two Thousand Five Hundred Seventy (182,570)
Shares are issued and paid up. The Sale Shares are duly authorized,
validly issued, fully paid and non-assessable. Except for this
Agreement:
(i) there are no existing options, warrants, calls, pre-emptive
rights, subscriptions or
18
other rights, agreements, arrangements or commitments of any character,
relating to the unissued capital stock of the Company or shares held by
Seller, obligating the Company or Seller to issue, transfer or sell or
cause to be issued, transferred or sold any such shares or stock or
Voting Debt of, or other equity or debt interest in, the Company or
securities convertible into or exchangeable for such shares, equity
interests, options, warrants, calls, subscriptions or rights, or
obligating the Company or Seller to grant, extend or enter into any
such option, warrant, call, subscription or other right, agreement,
arrangement or commitment; and
(ii) there are no outstanding contractual obligations of the
Company or of Seller to repurchase, redeem or otherwise
acquire any Shares or other capital stock of the Company or to
provide funds to make any investment (in the form of a loan,
capital contribution or otherwise) in any other entity. There
are no voting trust agreements or understandings to which
Seller or the Company is a party with respect to the voting of
the capital stock of the Company. For the avoidance of doubt
there shall be excluded from this clause (ii) any
representation or warranty in respect of the existing
shareholding of Purchaser in the Company.
Section 4.11 Brokers or Finders. Seller has not entered into any
agreement or arrangement entitling any agent, broker, investment
banker, financial advisor or other firm or Person, to any broker's or
finder's fee or any other commission or similar fee in connection with
the Transaction, except Xxxxxxx Xxxxx Xxxxxx, whose fees and expenses
will be paid by Seller in accordance with Seller's agreement with such
firm.
Section 4.12 Legal Proceedings Against the Company.
(a) Since the Balance Sheet Date no claim for
19
damages or otherwise has been made against the Company;
(b) there are no Proceedings in which the Company is involved nor
are any such Proceedings pending or threatened in writing
against the Company nor, to Seller's Knowledge, are there
circumstances likely to lead to any such Proceedings.
Section 4.13 Financial Statements. The Financial Statements have been
prepared from, are in accordance with and reflect, the books and
records of the Company, fully comply with the Indonesian Company Law
and accounting requirements, have been prepared in accordance with
Indonesian GAAP applied on a consistent basis during the periods
involved (except as may be stated in the notes thereto), and to the
extent prepared to be in accordance with US GAAP are in such
accordance, fairly present in all material respects the financial
position and the results of operations and cash flows (and changes in
financial position, if any) of the Company as of the times and for the
periods referred to therein and:
(a) The amounts borrowed by the Company do not exceed any
limitation on its borrowings contained in its articles of
association;
(b) The Company has not factored any of its debts, nor engaged in
any financing of a type which would not be required to be
shown or reflected in the Financial Statements.
Section 4.14 Management Reports. The Management Reports for any period
or drawn up as at any date since the Balance Sheet Date and for the
month ending on the Balance Sheet Date (the "Relevant Management
Reports Date") have been properly prepared in accordance with
accounting policies consistent with those used in preparing the
Financial Statements. The Management Reports fairly present the state
of affairs and business of the Company as at the Relevant Management
Reports Date and the profits or losses for the period concerned.
Section 4.15 Books and Records. Since 30 September 2000 the accounting
records of the Company have been maintained in accordance with sound
business practices and applicable accounting requirements and on a
consistent basis. All accounting returns and reports required by law
20
to be delivered or made to any authority have been duly delivered and,
in the reasonable view of the Company, have been properly made and to
the extent that such returns and reports have not been made on time
there is no and will be no adverse effect on the Company.
Since 1 June 2001 the minute books and share register of the Company,
the Special Register and other corporate records contain accurate and
complete records of all meetings of, and corporate action taken by, the
shareholders of the Company, the Board of Directors of the Company as a
whole and Board of Commissioners of the Company. All corporate returns
required by law to be delivered or made to any authority have been duly
and correctly delivered or made and to the extent that such returns and
reports have not been made on time there is no and will be no adverse
affect on the Company.
Section 4.16 No Undisclosed Liabilities.
(a) Except:
(i) as disclosed in the Financial Statements;
(ii) as disclosed in the Management Reports; and
(iii) for liabilities and obligations incurred in the
ordinary course of business and consistent with past
practice since the Balance Sheet Date,
the Company has no material liability or obligation of any
nature.
(b) save as disclosed in the Seller Disclosure Schedule, (i) there
is no indebtedness for borrowed money or for the deferred
purchase price of property or services (other than trade
liabilities incurred in the ordinary course of business and
payable in accordance with its customary practice) and (ii)
there is no indebtedness that is evidenced by a note, bond,
debenture or similar instrument.
Section 4.17 Absence of Certain Changes. Since the Balance Sheet Date,
the Company has conducted its business only in the ordinary and
21
usual course and consistent with past practice so as to maintain the
same as a going concern, and as regards the Company:
(a) it has not cancelled any debts or waived any claims or rights
of more than US$100,000 in value except in the ordinary course
of business and consistent with past practice;
(b) it has not sold, transferred, or otherwise disposed of any of
its Real Properties or assets other than in the ordinary
course of business;
(c) it has not disposed of or permitted to lapse, except where
such rights may be in the process of being extended, any
rights to the use of any Intellectual Property, or disposed of
or disclosed to any Person other than representatives of
Purchaser any Know-how or other intellectual Property not a
matter of prior public knowledge;
(d) it has not except as otherwise disclosed in Schedule 4.17(d)
of the Disclosure Schedule, made any single capital
expenditure or commitment in excess of US$2,000,000 for
additions to property, plant, equipment or capital assets or
made aggregate capital expenditures and commitments in excess
of US$5,000,000 for additions to property, plant, equipment or
capital assets;
(e) it has not declared, paid or set aside for payment any
dividend or other distribution in respect of its capital stock
or redeemed, purchased or otherwise acquired, directly or
indirectly, any shares of capital stock or other securities of
the Company;
(f) it has not made any material change in any method of
accounting or accounting practice;
(g) it has not entered into any transaction or assumed or incurred
any liabilities (including contingent liabilities) otherwise
22
than in the ordinary course of carrying on its business;
(h) its profits have not been affected by changes or
inconsistencies in accounting treatment, by any non-recurring
items of income or expenditure, by transactions entered into
otherwise than in the ordinary course of business or entered
into on noncommercial terms.
Section 4.18 Insurance.
(a) All material assets of the Company which are capable of being
insured are at the date of this Agreement insured to the full
replacement value thereof against fire and other risks
normally insured against by companies in Indonesia carrying on
similar businesses or owning assets of a similar nature and
the Company is at the date of this Agreement adequately
covered against accident, physical loss or damage, third party
liability, environmental liability (to the extent that
insurance is reasonably available), and other risks normally
covered by insurance by such companies; and
(b) in respect of such insurances:
(i) all premiums have been duly paid to date;
(ii) all the policies are in full force and effect and no
act, omission, misrepresentation or nondisclosure
by or on behalf of the Company has occurred which
makes any of the policies voidable, nor, to
Seller's Knowledge, have any circumstances arisen
which would render any of these policies void or
unenforceable, nor, to Seller's Knowledge, has there
been any breach of the terms, conditions and
warranties of any of the policies that would entitle
insurers to decline to pay all or any part of any
claim made under the policies;
23
(iii) to Seller's Knowledge, no circumstances exist,
attributable to the Company's act or omission, which
are likely to give rise to any increase in premiums;
(iv) no claims, exceeding in aggregate an amount of
US$100,000, are outstanding; and
(v) the Company has not waived any rights of a material
value under any insurance policy.
Section 4.19 Title to Properties and Assets; Encumbrances.
(a) Subject to the following paragraphs:
(i) (A) the Company had full title at the Balance Sheet
Date to all moveable and immovable assets (other than
the Real Properties) included in the Financial
Statements or which were at the Balance Sheet Date
used or held for the purposes of its business and (B)
save for those subsequently disposed of or realised
in the ordinary course of trading, the Company has
full title to all such assets and all assets which
have subsequently been acquired and (C) no moveable
and immovable asset used or held for the purposes of
the Company's business is the subject of any
assignment or Encumbrance (excepting only liens
arising by operation of law);
(ii) all such moveable and immovable assets are, where
capable of possession, in the possession of or under
the control of the Company or the Company is entitled
to take
24
possession or control of such moveable and immovable
assets and such moveable and immovable assets are
situated in Indonesia;
(iii) the Company had at the Balance Sheet Date full title
to all debts due to the Company included in the
Financial Statements and, save for those subsequently
disposed of or realised in the ordinary course of
trading, has full title to all such debts and all
debts which have subsequently arisen;
(b) the Company is the sole legal owner of and has full title to,
and all rights and interest in and to, each Real Property, has
fully paid for all such property, save as otherwise disclosed
in Schedule 4.19(b) of the Disclosure Schedule, and, subject
to the release of any Encumbrance as disclosed in the Seller
Disclosure Schedule, has the right to transfer each Real
Property to a third party and/or release title to each Real
Property;
(c) In respect of the Real Property set out in Schedule 4.19(c) of
the Disclosure Schedule, the Company has fully paid for all
such property, and save as otherwise disclosed in Schedule
4.19 (c) of the Disclosure Schedule: (i) has entered into duly
executed and authorized sale and purchase agreements and deeds
of relinquishment (akla pelepasan hak) and/or land transfer
deeds (akta penyerahan xxx penggunaan hak); and (ii) has
received from the relevant vendors (or their authorized
representatives) powers of attorney/spousal consents and the
relevant land certificates in the name of the last individual
owner in respect of such property and, there are no grounds or
circumstances whereby the Company will
25
be refused the grant of title to such property or on which the
Company may not be registered as the owner of such property;
(d) each Real Property has the benefit, whether, legally or by
custom or by usage, of rights of access over property
adjoining the Real Property;
(e) no Real Property nor any of its title deeds (as the case may
require) is subject to any Encumbrance, nor subject to any
power of attorney to sell or to establish a hypotec/hak
tanggungan (except as the same may have been given by the
Company to its lenders in the ordinary course of obtaining
credit facilities from its lenders) nor is any Real Property
the subject of any court attachment;
(f) there is no person in possession or occupation of, or who has
or claims any right or interest of any kind in, any Real
Property adversely to the interest of the Company;
(g) the Company has duly performed or observed any obligation,
condition, restriction, agreement or legal requirement
affecting each Real Property, its occupation of such Real
Property or the existing use thereof provided that, to the
extent of any non-compliance, this will not have a material
adverse affect on the business or operations of the Company;
(h) no Real Property is subject to any outgoing other than any
normal rate of tax or rent or other sum payable under any
lease under which it is held by the Company or other payments
made for utilities provided to the Real Property;
(i) there is no outstanding dispute affecting any Real Property
and to Seller's Knowledge none has been threatened;
26
(j) to Seller's knowledge, there is no resolution or proposal for
compulsory acquisition of any Real Property by any applicable
governmental, local of other authority or body;
(k) no Real Property is subject to any lease in favor of a third
party;
(l) brief details of all Real Properties owned by the Company are
set out in Schedule 4.19(i) of the Initial Seller Disclosure
Schedule.
Section 4.20 Contracts and Commitments.
(a) Schedule 4.20(a) of the Seller Disclosure Schedule contains a
complete and accurate list of each agreement, contract and
commitment of any kind (including each indenture, loan,
mortgage, note, installment obligation (including finance
lease), consulting agreement, services agreement, agreement
for the sale of goods or provision of services) which:
(i) is outside the ordinary course of its business;
(ii) involves a material capital commitment in excess of
US$5,000,000; or
(iii) is on non-commercial terms.
(b) There is no agreement, contract and commitment of any kind
which restricts the Company's freedom to carry on its business
in any part of Indonesia in such manner as it thinks fit or
materially and adversely affects its business.
(c) Each contract, lease, tenancy, or agreement having a value
exceeding US$5,000,000 (each a "Contract") is a valid, binding
and enforceable obligation of the Company. The Company is not
in default under or in violation of, nor, to Seller's
Knowledge, has any event occurred that with the giving of
notice or lapse of time or both would constitute a default or
event of default under, nor, to Seller's Knowledge, is there
any valid basis for any claim of default under or violation
of, any Contract.
27
(d) except as may be disclosed in the Financial Statements and the
Management Reports, the Company has not entered into any
option, swap, future, warrant, cap, collar, floor or any
contract for differences or other derivatives transaction or
similar agreement or arrangement.
Section 4.21 labour; Employee Benefit Plans.
(a) the Company is not involved in, and, to Seller's Knowledge,
there are no circumstances likely to give rise to, any
industrial or trade dispute or any dispute or negotiation
regarding a claim of material importance with any trade union
or other body representing any of the employees of the
Company.
(b) other than as described in the Seller Disclosure Schedule
there are no Employee Plans.
(c) the Employee Plans are currently in compliance both as to form
and in operation, with their terms and with all applicable
laws, regulations and government taxation or funding
requirements.
(d) the Company has no outstanding liability (including, without
limitation, liability for unpaid benefits, contributions or
insurance premiums) with respect to any of the Employee Plans
and in particular in respect of the pension plan described in
the Seller Disclosure Schedule.
Section 4.22 Compliance with Laws.
(a) The Company has:
(i) complied in a timely manner and in all material
respects with all laws, decrees, rules and
regulations;
28
(ii) complied in a timely manner with all judgments, and
court orders, applicable to the Company or its
business and to Seller's Knowledge, no 'notice,
charge, claim, action or assertion has been received
by the Company, and no claim or action has been filed
or commenced in any court or arbitral body or, to
Seller's Knowledge, threatened against the Company
alleging any violation of any law, decree,
regulation, judgment or court order.
(b) Since 1 June 2001 there have not been and are not any breaches
by the Company of its deed of establishment and articles of
association nor is there any order, decree, decision or
judgment of any Governmental Entity outstanding against the
Company or any person for whose acts or defaults the Company
may be responsible or, to the Seller's Knowledge, any
investigation or enquiry in respect of the same.
Section 4.23 Insider Interests, Debt and Guarantees. (i) None of the
Company's current directors, commissioners, or shareholders (each a
"Related Person") has any interest in any Contract, assets or property,
including any Intellectual Property, used in or pertaining to the
business of the Company, (ii) there is no outstanding Indebtedness nor
any indemnity, guarantee or security arrangement between any Related
Person and the Company and (iii) the Company has not entered into any
guarantees or financial support arrangements to any third party with
respect to Indebtedness of any Related Person or with respect to
indebtedness of any of its Affiliates.
The Company is not a party to any agreement or, to Seller's Knowledge,
any arrangement or understanding (whether oral or otherwise), with any
29
Related Person (except any employment contracts or Plans between the
Company and its directors, officers or senior management, in each case
entered into in the ordinary course of business).
All contracts between the Company and Seller are listed in the Seller
Disclosure Schedule.
Section 4.24 Tax Matters.
(a) The Company has:
(i) duly filed within the requisite periods and in
accordance with law all Tax Returns that are required
to be filed; and
(ii) duly paid, withheld or deducted or caused to be duly
paid, withheld or deducted in full or made provision
in accordance with Indonesian GAAP in the Financial
Statements (or there has been paid or provision has
been made on the Company's behalf) for the payment of
all Taxes (including provision for deferred taxes)
for all periods or portions thereof ending upon the
date hereof. All such Tax Returns were, in the
reasonable view of the Company, correct and complete
and properly made and reflect all liability for Taxes
for the periods covered thereby and, to Seller's
Knowledge, none of them is the subject of any dispute
with the relevant tax authority.
(b) There are no liens for Taxes upon any property or assets of
the Company, except for liens for Taxes not yet due.
(c) The Company has not made any change in accounting methods or
received a private ruling from any taxing authority.
(d) The Company has complied in all respects
30
with all applicable laws and regulations relating to the
payment and withholding of Taxes and has, within the time and
the manner prescribed by law, withheld and paid over to the
proper taxing authorities all amounts required to be so
withheld and paid over under applicable laws.
(e) There are no unresolved questions or claims concerning any Tax
liability of the Company.
(f) The Company has properly charged VAT on goods and services
delivered, properly assessed VAT on charges for services from
offshore and has claimed credit only for valid input VAT
charged by suppliers.
Section 4.25 Intellectual Property.
(a) All Intellectual Property, (whether registered or not) and
alI pending applications therefor, which have been, are, or
are necessary for the business of the Company are (or, where
appropriate in the case of pending applications, will be):
(i) legally owned by the Company or lawfully used with
the consent of the owner under a license, brief
details of which are set out in Schedule 4.25(a)(i)
of the Seller Disclosure Schedule;
(ii) valid and enforceable;
(iii) not being infringed or attacked or opposed by any
person;
(iv) not subject to any Encumbrance or any license or
authority in favor of another;
(v) in the case of rights in such intellectual Property
as are registered or the subject of applications
for registration, listed and briefly described in
Schedule 4.25(a)(v) of the Seller Disclosure Schedule
and all renewal fees which are due and steps which
are required for their
31
maintenance and protection have been or are being paid and
taken; and
(vi) in the case of unregistered trade marks which are likely to be
material to the Company, listed and briefly described in
Schedule 4.25(a)(vi) of the Seller Disclosure Schedule;
(b) the processes employed and the products and services dealt in by the
Company do not use, embody or infringe any rights or interests of third
parties in Intellectual Property (other than those belonging to or
licensed to the Company ) and, no written claims of infringement of any
such rights or interests have been made by any third party.
Section 4.26 Environmental.
(a) the Company has complied in all material respects with Environmental
Laws and has obtained all permits, licenses and other authorizations
required under such Environmental Laws.
(b) there is no civil, criminal, regulatory or administrative action, claim
or other proceeding or suit pending or, to Seller's Knowledge,
threatened against the Company arising from or relating to a breach of
the Environmental Laws nor has Seller or the Company received written
notice of any complaint, claim, dispute, investigation or other action
against the Company arising from or relating to any such matters.
(c) to Seller's Knowledge, none of the activities of the Company results in
any environmental damage to any third party nor has Seller or the
Company received from any third party written notice of any
32
complaint, claim, dispute or other action against the Company arising
from or relating to any environmental damage.
Section 4.27 Full Disclosure. No statement contained in the Seller Disclosure
Schedule or those documents listed in Schedule 4.27 of the Seller Disclosure
Schedule as having been supplied to Purchaser by Seller, contains any untrue
statement of a fact. All information contained in this Agreement and all other
written information as listed in Schedule 4.27 of the Initial Seller Disclosure
Schedule was when given and remains true, complete and accurate in all material
respects and not misleading and Seller does not have any actual knowledge of any
fact or matter or circumstances not disclosed in writing to Purchaser which
renders any such information untrue, misleading or inaccurate.
Section 4.28 TM Injection.
(a) The Co-operation Agreement dated 3 January 2002 between the Company and
Seller and the documents listed in Schedule 4.28(d) of the Initial
Seller Disclosure Schedule (the "TM Primary Documents") have been duly
executed and delivered by the parties thereto and constitute legal,
valid and binding obligations on them and are enforceable against them
in accordance with their terms and each party thereto has all requisite
power and authority to execute and deliver those agreements and to
perform its obligations thereunder. The TM Primary Documents are the
only agreements between Seller and the Company relating to Telkom
Mobile and no provision of the TM Primary Documents has been amended or
waived or agreed to be amended or waived.
(b) Except for the Consents referred to in Schedule 4.28(b) of the Initial
Seller Disclosure Schedule, the performance by Seller and the Company
of their obligations
33
under the TM Primary Documents will not: (i) conflict with or result in
any breach of any provision of the deeds of establishment and articles
of association of Seller or the Company; (ii) require any Consent of
any Governmental Entity; (iii) require any Consent under, or result in
a violation or breach of, or constitute (with or without due notice or
the passage of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration) under, any of the
terms, conditions or provisions of any agreement, license, contract,
instrument, undertaking or obligation to which Seller or the Company is
a party or by which Seller or the Company or any of their respective
properties or assets is bound; (iv) violate any binding order, writ,
injunction of an Indonesian court or arbitral body; or (v) violate any
decree, law or regulation applicable to Seller or the Company or any
of their respective properties or assets. As of the Closing Date,
Seller represents and warrants that each Consent referred to in
Schedule 4.28(b) of the Closing Seller Disclosure Schedule has been
obtained and remains in full force and effect.
(c) There are no Proceedings pending or threatened against, involving or
affecting Seller or the Company which question or challenge the
validity of the TM Primary Documents or any action taken or to be taken
by Seller or the Company pursuant to the TM Primary Documents or in
connection with the performance by Seller or the Company of their
obligations under the TM Primary Documents or, to Seller's Knowledge,
which could be reasonably expected to result in the issuance of a
judgment, order or decree prohibiting or making illegal the performance
by Seller or the Company of any of their obligations under the TM
Primary Documents.
34
(d) Schedule 4.28(d) of the Seller Disclosure Schedule contains a complete
and accurate list of all agreements, contracts and commitments of any
kind (including all indentures, loans, mortgages, notes, installment
obligations (including finance leases), consulting agreements, services
agreements and agreements for the sale of goods or provision of
services) which have been entered into by Seller in relation to the
business of Telkom Mobile ("TM Contracts").
(e) Each of the TM Contracts is a valid, binding and enforceable obligation
of the parties thereto. Seller is not in default under or in violation
of, nor has any event occurred that with the giving of notice or lapse
of time or both would constitute a default or event of default under,
nor to Seller's Knowledge, is there any valid basis for any claim of
default under or violation of, any TM Contract.
(f) Seller has, and the Company will obtain on the closing thereof, full
title to all properties and assets to be transferred under the TM
Primary Documents free and clear of all Encumbrances.
(g) All Licenses necessary for the carrying on of the operations of Telkom
Mobile have been obtained, are in full force and effect and have been
and are being complied with in all material respects, and, to the
Seller's Knowledge, there is no investigation, enquiry or proceeding
which is likely to result in the suspension, cancellation, modification
or revocation of any of such Licenses. None of such Licenses has been
breached or, to Seller's Knowledge, is likely to be suspended,
cancelled, refused, modified or revoked.
(h) The DCS 1800 License and Frequency License have been obtained, are in
full force and effect and have been and are being complied with and
there is no
35
investigation, enquiry or proceeding which is likely to result in the
suspension, cancellation, modification or revocation of such licenses.
None of such licenses has been breached or, to Seller's Knowledge, is
likely to be suspended, cancelled, refused, modified or revoked and
when transferred or reissued to the Company as contemplated by the TM
Primary Documents such licenses will remain valid and enforceable.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF PURCHASER
Except for the disclosures set forth in the Initial Purchaser Disclosure
Schedule (or, with respect to any representation or warranty made as of the
Closing Date, the Closing Purchaser Disclosure Schedule), Purchaser represents
and warrants to Seller that all of the statements contained in this Article V
are true and correct as of the date of this Agreement (save insofar as the
statement is expressed to be made only as of the Closing Date) and as of the
Closing Date. Each exception set forth in the Purchaser Disclosure Schedule and
each other response to this Agreement set forth in the Purchaser Disclosure
Schedule is identified by reference to, or has been grouped under a heading
referring to, a Section of this Agreement. Each such exception shall be deemed
to be disclosed with respect to each such Section and to each other Section to
which it reasonably relates. For the avoidance of doubt, statements set forth in
a Purchaser Disclosure Schedule do not expand the scope of the representations
and warranties of Purchaser in this Article V.
Section 5.1 Organization. Purchaser is a company duly organized and validly
existing under the laws of Singapore and has all requisite power and authority
to execute and deliver this Agreement and to perform its obligations hereunder.
Section 5.2 Authorization; Validity of Agreement. Purchaser has taken all
corporate action necessary to execute and deliver this Agreement. The
performance by Purchaser of its obligations hereunder has been duly authorized
by Purchaser
36
and no other corporate action on the part of Purchaser is necessary to authorize
the performance by Purchaser of its obligations hereunder.
Section 5.3 Binding Agreement. This Agreement has been duly executed and
delivered by Purchaser, and this Agreement constitutes a legal, valid and
binding obligation of Purchaser, enforceable against Purchaser in accordance
with its terms.
Section 5.4 Consents and Approvals; No Conflicts, Violations or Defaults. Except
for the Consents referred to in Sections 7.1 and 7.3 , neither the execution or
delivery of this Agreement by Purchaser nor the performance by Purchaser of its
obligations hereunder will: (i) conflict with or result in any breach of any
provision of Purchaser's organizational documents; (ii) require any Consent of
any Governmental Entity; (iii) require any Consent under, or result in a
violation or breach of, or constitute (with or without due notice or the passage
of time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any agreement, license, contract, instrument, undertaking or obligation to
which Purchaser is a party or by which Purchaser or any of its properties or
assets is bound; or (iv) violate any binding order, writ, injunction, decree,
statute, rule or regulation applicable to Purchaser or any of its properties or
assets. As of the Closing Date, Purchaser represents and warrants that each
Consent referred to in Section 7.3 has been obtained and remains in full force
and effect.
Section 5.5 Legal Proceedings. There are no Proceedings pending or, to
Purchaser's Knowledge, threatened against, involving or affecting Purchaser
which question or challenge the validity of this Agreement or any action taken
or to be taken by Purchaser pursuant to this Agreement or in connection with the
performance by Purchaser of its obligations hereunder or which could
37
reasonably be expected to result in the issuance of any judgment, order or
decree prohibiting or making illegal the performance by Purchaser of its
obligations hereunder. Purchaser is not subject to any judgment, order or decree
prohibiting or making illegal the performance by Purchaser of its obligations
hereunder.
Section 5.6 Brokers or Finders. Purchaser has not entered into any agreement or
arrangement entitling any agent, broker, investment banker, financial advisor or
other firm or Person to any broker's or finder's fee or any other commission or
similar fee in connection with the Transaction except Xxxxxxx Xxxxx (Singapore)
Pte., whose fees and expenses will be paid by Purchaser in accordance with
Purchaser's agreement with such firm.
Section 5.7 Knowledge of Breaches. As of the date of this Agreement and as of
the Pre-Closing Date it is not actually aware of any breach by Seller of any
representation and warranty given by Seller in this Agreement save as contained
in the Initial Seller Disclosure Schedule.
ARTICLE VI
COVENANTS
Section 6.1 Confidentiality. Except as otherwise provided herein, each party
shall, and shall use its reasonable efforts to cause its consultants, advisors
and representatives to, treat as strictly confidential and not disclose or use
any information received or obtained as a result of entering into this Agreement
(or any agreement entered into pursuant to this Agreement) which relates to:
(a) the provisions of this Agreement and any agreement entered into
pursuant to this Agreement;
(b) the negotiations relating to this Agreement (and such other
agreements); or
(c) the other party's (and in the case of Seller,
38
SingTel's) business, financial or other affairs.
Unless (i) disclosure is required by judicial or administrative process or, in
the reasonable opinion of the disclosing party, is otherwise required by law
(including the securities laws and regulations of any Governmental Entity or the
rules of any applicable stock exchange); (ii) such confidential information is
disclosed by a party hereto in connection with any Proceeding or any arbitration
before an arbitration tribunal or mediation service in order to enforce such
party's rights under Section 10.8 or arising in connection with the termination
of this Agreement pursuant to Article VIII; (iii) the disclosure or use is
required to vest the full benefit of this Agreement in Seller, or the Purchaser,
as the case may be; (iv) the disclosure or use is required for the purpose of
any other agreement entered into under or pursuant to this Agreement or the
disclosure is reasonably required to be made to a Taxation authority in
connection with the Taxation affairs of the disclosing party; (v) the disclosure
is made to professional advisers of the Purchaser or Seller on terms that such
professional advisers undertake to comply with the provisions of this Section in
respect of such information as if they were a party to this Agreement; (vi) the
information becomes publicly available (other than by breach of this Agreement);
(vii) the other party has given prior written approval to the disclosure or use;
or (viii) the information is independently developed after Closing, provided
that prior to disclosure or use of any information pursuant to (i), (ii), (iii),
(iv) (except in the case of disclosure to a Taxation authority) or (v), the
party concerned shall promptly notify the other party of such requirement with a
view to providing the other party with the opportunity to contest such
disclosure or use or otherwise to agree the timing and content of such
disclosure or use.
Section 6.2 Efforts and Actions to Cause Closing to Occur.
(a) Prior to the Closing, upon the terms and subject to the conditions of
this Agreement, Purchaser and Seller shall use their
39
respective reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done and to cooperate with each
other in order to do, all things reasonably necessary, proper or
advisable (subject to any applicable laws) to consummate the Closing at
the time contemplated in Section 3.1 (including the preparation and
filing of all forms, registrations and notices required to be filed to
consummate the Closing and the taking of such actions as are necessary
to obtain any requisite Consents of any Governmental Entity and any
other Person and the taking of such other actions and the execution of
such other documents as may be reasonably necessary to satisfy the
conditions set forth in Article VII).
(b) Prior to the Closing, each party shall promptly consult with the other
party hereto with respect to, provide any necessary information with
respect to, and provide the other party (or its counsel) with copies
of, all filings made by such party with any Governmental Entity or any
other information supplied by such party to a Governmental Entity in
connection with this Agreement. Each party hereto shall promptly
provide the other party with copies of any written communication
received by such party from any Governmental Entity regarding the
Transaction. If any party hereto receives a request for additional
information or documentary material from any such Governmental Entity
with respect to the Transaction, then such party shall endeavor in good
faith to make, or cause to be made, as soon as reasonably practicable
and after consultation with the other party, an appropriate response in
compliance with such request. To the extent that transfers, amendments
or modifications of permits are required as a result of the execution
of this Agreement or the performance by the parties of their respective
obligations hereunder, Seller and Purchaser shall use their reasonable
efforts to effect such transfers, amendments or modifications and to
cause the Company to effect such transfers, amendments or
modifications.
40
(c) Each party agrees that it will not undertake any course of action
inconsistent with the satisfaction of the requirements or conditions
applicable to it set out in this Agreement and it will use its
reasonable efforts to do all things and take such action as may be
appropriate to enable it to comply with its obligations.
(d) Seller shall pending Closing:
(i) procure that Purchaser and its advisers will, upon reasonable
notice, be allowed access to, and to take copies of, the books
and records of the Company including, without limitation, the
share register, minute books, leases, licenses, contracts,
details of receivables, Tax records, supplier lists and
customer lists in the possession or control of the Company;
and
(ii) act in good faith and consult with Purchaser in relation to
all material matters in which Seller is involved in the
running of the Company between the date of this Agreement and
the Closing Date; and
(iii) procure that the Company preserves its assets (save as may be
disposed of in the ordinary course of business).
For the purposes of this Section 6.2 (d), the word "procure" means Seller using
reasonable endeavors and directing that its nominated directors and
commissioners on the boards of the Company to vote, subject to their fiduciary
duties, accordingly.
41
Section 6.3 Updating of the Seller Disclosure Schedule.
(a) From time to time prior to the Pre-Closing Date, Seller shall promptly
supplement or amend the disclosures set forth in the Initial Seller
Disclosure Schedule (as such disclosures are supplemented or amended
from time to time in accordance with the terms hereof) with respect to
any matter arising after the delivery thereof pursuant hereto that, if
existing at, or occurring on, the date of this Agreement, would have
been required to be set forth or described in the Initial Seller
Disclosure Schedule.
(b) From time to time prior to the Closing. Purchaser shall promptly
supplement or amend the disclosures set forth in the Initial Purchaser
Disclosure Schedule (as such disclosures are supplemented or amended
from time to time in accordance with the terms hereof) with respect to
any matter arising after the delivery thereof pursuant hereto that, if
existing at, or occurring on, the date of this Agreement, would have
been required to be set forth or described in the Initial Purchaser
Disclosure Schedule.
(c) Each party shall give notice to the other party promptly after becoming
aware of (i) any event or matter which results or may result in any of
the warranties given by it being unfulfilled, untrue, misleading or
incorrect in any respect at Closing (ii) the occurrence or
non-occurrence of any event whose occurrence or non-occurrence would be
likely to cause any condition set forth in Article VII to fail to be
satisfied at any time from the date hereof to the Closing Date and
(iii) any material failure of a party or the Company to comply with or
satisfy any covenant, condition or agreement to be complied with or
satisfied by it hereunder; provided, however, that (x) the delivery of
any notice pursuant to this Section shall not limit or otherwise affect
the remedies available hereunder to the party receiving such notice and
(y) such notice shall not be required from and after the time the party
to whom such notice is to be given has knowledge of the information
required to be included in such notice.
42
Section 6.4 Exclusive Dealings. During the Exclusivity Period, Seller shall
not, directly or Indirectly: (i) sell or agree to sell any of the Shares other
than through a sale pursuant to the terms of this Agreement; (ii) agree to any
merger or sale of substantial assets of the Company or similar transaction;
(iii) encourage, solicit, initiate, continue or participate in discussions or
negotiations with, or provide any information to, any Person or group (other
than Purchaser, its Subsidiaries or any of their representatives) concerning any
Acquisition Proposal and shall cause its advisors and Subsidiaries to refrain
from taking any action to, directly or indirectly, encourage, solicit, initiate,
continue or participate in such discussions or negotiations; or (iv) enter into
any agreement with respect to any Acquisition Proposal.
Section 6.5 Post-Closing Cooperation. In case at any time after the Closing Date
any further action is reasonably necessary, proper or advisable to carry out the
purposes of this Agreement (including registration of the transfer of the Sale
Shares from Seller to Purchaser in the Company Registry with the Department of
Industry and Trade of the Republic of Indonesia), as soon as reasonably
practicable, each party hereto shall use its reasonable efforts to take, or
cause its directors, commissioners or other representatives to take, all such
reasonably necessary, proper or advisable actions.
Section 6.6 TM Injection. Prior to the Closing, upon the terms and subject to
the conditions of this Agreement, Seller shall use and shall procure that the
Company shall use its reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done and to cooperate with each other in
order to do, all things reasonably necessary,
43
proper or advisable (subject to any applicable laws) to consummate the
completion of the transaction contemplated by the TM Primary. Documents
(including the preparation and filing of all forms, registrations and notices
required to be filed to consummate the completion and the taking of such actions
as are necessary to obtain any requisite Consents of any Governmental Entity and
any other Person and the taking of such other actions and the execution of such
other documents as may be reasonably necessary to satisfy the conditions set
forth in Section 7.1(c)), subject in all cases to any rights of Purchaser to
prevent the completion of the transactions contemplated by the TM Primary
Documents.
ARTICLE VII
CONDITIONS PRECEDENT AND CLOSING
Section 7.1 Conditions to Each Party's Obligation to Effect the Closing. The
respective obligation of each party to consummate the Closing shall be subject
to the satisfaction on or prior to the Closing Date of each of the following
conditions:
(a) Shareholders' resolutions of the Company having been passed approving
changes in the composition of shareholdings upon the transfer of the
Sale Shares to Purchaser,
(b) BKPM approval having been given for changes in the composition of the
shareholders of the Company upon the transfer of the Sale Shares to
Purchaser.
(c) Completion of the TM Primary Documents in accordance with their terms
(and without the amendment or waiver of any of their respective terms
other than as approved in writing by Purchaser) having occurred such
that the Telkom Mobile Contracts and the Telkom Mobile Assets are
transferred to the Company, in accordance with those documents;
(d) notification by the Company to the MOC having been filed, notifying the
transfer of the Sale Shares by Seller to Purchaser; and
44
(e) the approval of the Transaction by the shareholders of Seller in a
general meeting of the shareholders of Seller.
Section 7.2 Conditions to Obligation of Purchaser to Effect the Closing. The
obligation of Purchaser to consummate the Closing shall be subject to the
satisfaction on or prior to the Closing Date of each of the following conditions
which may be waived by Purchaser, in whole or in part and upon such terms and
conditions, at any time and from time to time as Purchaser may determine in its
sole discretion.
(a) The Licenses. The DCS 1800 License and the Frequency License having
been issued to the Company on terms satisfactory to Purchaser and
copies of such re-issued licenses having been provided to Purchaser.
(b) Accuracy of Representations and Warranties of Seller. All of the
representations and warranties of Seller in Article IV of this
Agreement or in the certificate delivered pursuant to Section
7.2(c)(ii) in connection herewith shall have been true and correct in
all respects, in each case as from the Pre-Closing Date and on and as
of the Closing Date (recognizing as valid disclosures only those
disclosures made in the Initial Seller Disclosure Schedule).
(c) Performance by Seller.
Seller shall have delivered to Purchaser:
(i) a copy of the approval of Seller's Board of Commissioners and
the minutes of the General Meeting of Shareholders of Seller
(or in lieu thereof a statement issued by a civil notary
finalizing the minutes confirming that the resolutions have
been passed) approving the Transaction provided for in this
Agreement;
45
(ii) a certificate executed by a duly authorized representative of
Seller, dated the Closing Date, to the effect that each of
Seller's representations and warranties in this Agreement is
true and correct as of the Closing Date as if made on the
Closing Date (recognizing as valid disclosures only those
disclosures made in the Seller Disclosure Schedule);
(iii) a certified copy of a resolution of shareholders of the
Company signed by Seller (i) appointing such person as
Purchaser may nominate in accordance with the terms of the
Shareholders Agreement as a director of the Company and (ii)
adopting the articles of association attached to the
Shareholders Agreement;
(iv) a duly certified copy of the approval of two members of the
board of directors of the Company approving the entry of
Purchaser on the share register of the Company as holder of
the Sale Shares;
(v) certificates representing the Sale Shares;
(vi) a Deed of Transfer in respect of the Sale Shares signed by
Seller;
(vii) the Closing Seller Disclosure Schedule (a substantially final
draft of which shall have been delivered to the Purchaser not
later than five (5) Business Days prior to Closing), if any;
and
(viii) a copy of the shareholders' register of the Company duly
signed in accordance with the articles of association of the
Company evidencing the registration of the
46
Sale Shares in the name of the Purchaser on the Closing Date.
(d) Opinion of Seller's Counsel. Seller shall have delivered to Purchaser
at the Closing an opinion of Hadiputranto. Hadinoto & Partners, legal
counsel to Seller, dated the Closing Date, addressed to Purchaser, in
the form attached as Schedule 7.2(d); and
(e) The Licenses. The DCS 1800 License and Frequency License remaining in
full force and effect and in the name of the Company, on Closing.
Section 7.3 Conditions to Obligation of Seller to Effect the Closing. The
obligation of Seller to consummate the Closing shall be subject to the
satisfaction on or prior to the Closing Date of the following condition which
may be waived by Seller, in whole or in part and upon such terms and conditions,
at any time and from time to time as Seller may determine in its sole
discretion.
(a) Accuracy of Representations and Warranties of Purchaser. All of the
representations and warranties of Purchaser set forth in Article V of
this Agreement or in the certificate delivered pursuant to Section
7.3(b)(ii) are true and correct in all respects, in each case as of the
date of this Agreement and on and as of the Closing Date as if made on
and as of the Closing Date (recognizing as valid disclosures only those
disclosures made in the Initial Purchaser Disclosure Schedule).
(b) Performance by Purchaser.
Purchaser shall have delivered:
(i) a copy of the approval of Purchaser's board approving the
Transaction provided for in this Agreement;
(ii) a certificate executed by a duly authorized representative of
Purchaser, dated the Closing Date,
47
to the effect that each of Purchaser's representations and
warranties in this Agreement is true and correct as of the
Closing Date as if made on the Closing Date (recognizing as
valid, disclosures only those disclosures made in the
Purchaser Disclosure Schedule);
(iii) a Deed of Transfer in respect of the Sale Shares signed by
Purchaser;
(iv) a certified copy of a resolution of shareholders of the
Company signed by Purchaser adopting the articles of
association attached to the Shareholders Agreement; and
(v) the Closing Purchaser Disclosure Schedule (a substantially
final draft of which shall have been delivered to Seller not
later than five (5) Business Days prior to Closing), if any.
(c) Opinion of Purchaser's Counsel. Purchaser shall have delivered to
Seller at the Closing an opinion of Linklaters Xxxxx & Xxxxxxxx, legal
counsel to Purchaser, dated the Closing Date, and addressed to Seller,
in the form attached as Schedule 7.3(c).
ARTICLE VIII
TERMINATION
Section 8.1 Termination. This Agreement may be terminated at any time prior to
the Closing Date:
(a) By the mutual written consent of Purchaser and Seller.
(b) By Purchaser or Seller if any Governmental Entity shall have issued an
order, decree or ruling or taken any other action, which prohibits the
acquisition of the Sale Shares by Purchaser and such order, decree,
48
ruling or other action shall have become final and non-appealable.
(c) By Seller:
(i) if Purchaser shall have breached any of its representations,
warranties, covenants or other agreements contained in this
Agreement, which breach would give rise to the failure of a
condition set forth in Article VII and which breach cannot be
or has not been cured within 30 calendar days after the giving
of written notice by Seller to Purchaser specifying such
breach; or
(ii) on or after 30 July 2002 if the Closing shall not have
occurred and if the failure of the Closing to occur is not the
result of a breach of a representation, warranty, covenant or
other agreement contained herein by Seller provided that if
the DCS 1800 License and the Frequency License have not yet
issued in the name of the Company this date shall
automatically be extended for an additional period until 21
August 2002; or
(iii) if any of the provisions of Sections 3.2(i) or 7.3(b) are not
fully complied with by Purchaser on the Closing Date provided
that if Seller elects not to exercise its rights to terminate
it may instead either effect Closing so far as practicable
having regard to the defaults which have occurred or fix a
new date for Closing (not being more than 20 Business Days
after the agreed Closing Date) in which case the provisions of
Sections 3.2, 7.2 and 7.3 shall apply to Closing as so
deferred but provided such deferral may only occur once.
49
(d) By Purchaser:
(i) if Seller shall have breached any representation, warranty,
covenant or other agreement contained in this Agreement, which
breach would give rise to the failure of a condition set forth
in Article VII and which breach cannot be or has not been
cured within 30 calendar days after the giving of written
notice by Purchaser to Seller specifying such breach; or
(ii) on or after 30 July 2002 if the Closing shall not have
occurred and if the failure of the Closing to occur is not the
result of a breach of a representation, warranty or covenant
or other agreement contained herein by Purchaser provided that
if the DCS 1800 License and the Frequency License have not
yet issued in the name of the Company this date shall be
automatically extended for an additional period until 21
August 2002; or
(iii) if any of the provisions of Sections 3.2(ii) or 7.2(c) are not
fully complied with by Seller on the Closing Date provided
that if Purchaser elects not to exercise its rights to
terminate it may instead either effect Closing so far as
practicable having regard to the defaults which have occurred
or fix a new date for Closing (not being more than 20 Business
Days after the agreed Closing Date) in which case the
provisions of Sections 3.2, 7.2 and 7.3 shall apply to Closing
as so deferred but provided such deferral may only occur
once; or
50
(iv) if any amendments made by Seller to the Initial Seller
Disclosure Schedule on or prior to the Pre-Closing Date is
reasonably considered by Purchaser to be unacceptable.
Section 8.2 Effect of Termination. In the event of the termination of this
Agreement by any party hereto pursuant to the terms of this Agreement, written
notice thereof shall forthwith be given to the other party specifying the
provision hereof pursuant to which such termination of this Agreement is made,
and there shall be no liability or obligation thereafter on the part of
Purchaser or Seller except for fraud or for breach of this Agreement prior to
such termination of this Agreement (which for the avoidance of doubt includes a
breach giving rise to such termination). Amendments made by Seller to the
Initial Seller Disclosure Schedule on or before the Pre-Closing Date shall not
be deemed to be a breach of this Agreement.
Section 8.3 Waiver of Court Pronouncement. Purchaser and Seller hereby waive the
provisions of Article 1266 of the Indonesian Civil Code to the extent it
requires a court pronouncement in respect of termination of this Agreement.
51
ARTICLE IX
INDEMNIFICATION
Section 9.1 Survival of Representations and Warranties; Effect of Investigation.
Each of the representations and warranties of the parties in this Agreement, the
Schedules hereto, the Disclosure Schedules, any certificate or other document
delivered pursuant to this Agreement or in any amendment of or supplement to the
foregoing shall survive the Closing Date and thereafter shall continue in force
until the date being the earlier of (i) the first day of the offering period
with respect to the initial public offering of the Company's shares and (ii) 9
December 2003 with respect to each other representation and warranty contained
herein, after which it shall be of no force or effect and, for the avoidance of
doubt, all notices claiming any breach of representation or warranty must be
received on or prior to such anniversaries.
Subject to Section 5.7, the right to indemnification under this Section 9.1 or
payment of Damages based on any representation or warranty of a party hereto
contained in or made pursuant to this Agreement shall not be affected by any
investigation conducted with respect to, or any knowledge acquired (or capable
of being acquired) at any time, whether before or after the execution and
delivery of this Agreement or the Closing Date, with respect to the accuracy or
inaccuracy of or compliance with, any such representation, warranty, covenant or
obligation.
Section 9.2 Indemnification and Payment of Damages by Seller. Seller shall
indemnify and hold harmless Purchaser for, and shall pay to Purchaser the amount
of, any and all Damages of Purchaser, arising from or in connection with:
(a) any breach of any representation or warranty made by Seller in
Article IV of this Agreement or in the certificate delivered by Seller
pursuant to Section 7.2(c)(ii);or
(b) any breach by Seller of any covenant, agreement or obligation of Seller
under this Agreement.
52
Section 9.3 Indemnification and Payment of Damages by Purchaser. Purchaser shall
indemnify and hold harmless Seller, and shall pay to Seller the amount of, any
and all Damages of Seller, arising from or in connection with:
(a) any breach of any representation or warranty made by Purchaser in
Article V of this Agreement or in the certificate delivered by
Purchaser pursuant to Section 7.3(b)(ii); or
(b) any breach by Purchaser of any covenant, agreement or obligation of
Purchaser under this Agreement.
Section 9.4 Limitations on Liability
(a) Seller will have no liability (for indemnification, claims or
otherwise) in respect of any breach of any representation or warranty
made by Seller in Article IV of this Agreement or in the certificate
delivered by Seller pursuant to Section 7.2(c)(ii) (other than the
matters described in Sections 4.1, 4.2, 4.3, 4.6, 4.7, 4.8(b) and
4.10):
(i) for any Excluded Claim; and
(ii) unless the total of Permitted Claims equals or exceeds in the
aggregate US$7,722,000 (or the equivalent thereof in any other
currency), in which case Seller shall be liable for all
Permitted Claims; provided that in no event shall Seller's
liability for Damages exceed the Purchase Price.
(b) Notwithstanding the foregoing, the limits on the amount, type and scope
of liability under this Article IX shall not apply to any fraudulent
misrepresentation or any breach of the representations and warranties
set forth in Sections 4.6 and 4.7.
(c) In no event shall either party be liable to the other party for any
consequential loss
53
(including loss of profits or loss of opportunity) arising from any
breach of this Agreement provided that, for the avoidance of doubt but
subject to the provisions of this Section 9, this shall not limit in
any way the ability of Purchaser to recover from Seller the actual
diminution in value of the Sale Shares, as a result of or in connection
with a breach of any representation or warranty given by Seller, below
the value that the Sale Shares would have had in the absence of such a
breach.
Section 9.5 Procedure for Indemnification - Third-Party Claims
The Indemnified party under Sections 9.2 or 9.3 (an "Indemnified Party") shall
give the indemnifying party under such Section (an "Indemnifying Party") prompt
notice of any third-party claim against the Indemnified Party that may give rise
to any indemnification obligation under this Article IX. Failure to give such
notice shall not affect the Indemnifying Party's obligations hereunder in the
absence of actual and material prejudice.
Section 9.6 Procedure for Indemnification - Other Claims. A claim for
indemnification for any matter not involving a third-party claim may be asserted
by notice to the party from whom indemnification is sought.
Section 9.7 Survival of Indemnification Claims. The indemnification obligations
set forth in this Article IX shall survive the Closing.
Section 9.8 Exclusive Remedy. The recovery of Damages pursuant to this Article
IX shall be the exclusive monetary remedy available to Purchaser and Seller for
any breaches of the representations and warranties herein other than for
fraudulent misrepresentation or intentional breach.
54
ARTICLE X
MISCELLANEOUS
Section 10.1 Fees and Expenses. All costs and expenses incurred in connection
with this Agreement and the consummation of the Transaction shall be paid by the
party incurring such expenses, including, without limitation, the fees and
expenses of its legal and financial advisors save for any indemnification
obligation under Article IX.
Section 10.2 Amendment and Modification. This Agreement may be amended, modified
and supplemented in any and all respects, but only by a written instrument
signed by all of the parties hereto expressly stating that such instrument is
intended to amend, modify or supplement this Agreement.
Section 10.3 Notices. Alt notices and other communications hereunder shall be in
writing and shall be deemed given when delivered personally. sent by facsimile
(which is confirmed) or sent by an overnight courier service to the parties at
the following addresses (or at such other address for a party as shall be
specified by such party by like notice):
if to Seller, to:
PERUSAHAAN PERSEROAN (PERSERO)
PT TELEKOMUNIKASI INDONESIA TBK
JI. Xxxxxx Xx. 0
Xxxxxxx 00000
Xxxxxxxxx
Attention : President Director
Facsimile : (62 22)440-313
if to Purchaser, to:
SINGAPORE TELECOM MOBILE PTE LTD
00 Xxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxx 000000
Attention : Chief Executive Officer
Facsimile : (00) 0000 0000
Section 10.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties.
55
Section 10.5 Entire Agreement; No Third Party Beneficiaries. This Agreement
(a) constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof and (b) is not intended to confer any rights or remedies
upon any Person other than the parties hereto.
Section 10.6 Severability. Any term or provision of this Agreement that is held
by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any other situation or
in any other jurisdiction. If the final judgment of a court of competent
jurisdiction or other authority declares that any term or provision hereof is
invalid, void or unenforceable, the parties agree that the court making such
determination shall have the power to reduce the scope, duration, area or
applicability of the term or provision, to delete specific words or phrases, or
to replace any invalid, void or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision.
Section 10.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of Indonesia.
Section 10.8 Arbitration
(a) Amicable Settlement. Purchaser and Seller agree that if any difference,
dispute, conflict or controversy (a "Dispute"), arises out of or in
connection with this Agreement or its performance, including without
limitation any dispute regarding its existence, validity, termination
of rights or obligations of any party hereto, the Purchaser and Seller
will use all reasonable efforts for a period of thirty (30) days after
the receipt by one party of a notice from the other party of the
existence of the Dispute to settle the Dispute by mutual consultation
between the parties.
56
(b) Referral to Arbitration. If Purchaser and Seller are unable to reach
agreement to settle the Dispute within the thirty-day period mentioned
in Section 10.8(a), then either party may submit the Dispute to
arbitration under the applicable rules of the International Chamber of
Commerce (the "Rules") as at present in force. The arbitration will be
conducted in the English language in London. Notwithstanding the
provisions of Section 10.3, any notice of arbitration, response or
other communication given to or by a party to the arbitration must be
given and deemed received as provided in the Rules.
(c) Procedures. The tribunal shall draw up and submit to the parties for
signature, the terms of reference within 21 days of receiving the file.
Each of the parties hereto hereby waives the applicability of Articles
48(1) and 73(b) of Law No. 30 of 1999 on Arbitration and Alternative
Dispute Resolution ("Arbitration Law 30") and agrees that the
arbitration proceedings need not be completed within a specific period
save as otherwise provided. The Board of Arbitration will consist of
three arbitrators appointed in accordance with the Rules save that,
unless the parties agree otherwise:
(i) the third arbitrator, who shall act as chairman of the
tribunal, shall be chosen by the two arbitrators appointed by
or on behalf of the parties. If he is not chosen and nominated
to the ICC for appointment within 30 days of the date of
confirmation by the ICC of the later of the two
party-appointed arbitrators to be confirmed, he shall be
chosen by the ICC; and
57
(ii) no arbitrator shall be the same nationality as any party.
(d) Award a Condition Precedent to Suit. The making of a final award by the
arbitral tribunal shall constitute a condition precedent to:
(i) the existence or the accrual of any right of action of
whatsoever nature (capable of being sued out in any manner
whatsoever in any court of competent jurisdiction); and
(ii) the institution or commencement of any action, suit or other
proceeding of whatsoever nature, type or form in any court of
competent jurisdiction, (in each such case) upon, or arising
out of, in connection with or relating to (in each such case,
in any manner whatsoever) this Agreement or any Dispute. No
such right of action or cause of action shall arise and no
action, suit or other proceedings shall be instituted or
commenced in any court of competent jurisdiction unless and
until (and only in the event that) a final award shall have
been made by the arbitral tribunal and only then for the
purposes of the enforcement of the arbitration award.
(e) Award Binding. The award by the arbitral tribunal shall be final and
binding on the parties and may be enforced in any court of competent
jurisdiction including in Indonesia or elsewhere. Each of the parties
expressly waives any laws and regulations, decrees or policies having
the force of law which would otherwise give a right to appeal against
the decision of the arbitral tribunal and agrees that, in accordance
with Article 60 of Arbitration Law 30, none of the parties shall have
any right to appeal the arbitration award and none of the parties shall
otherwise dispute or question the arbitration award or any interim or
other decision of the arbitrators
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before any judicial authority in the Republic of Indonesia. Each of the
parties also hereby irrevocably waives the applicability of Articles
48(1) and 73 paragraph (b) of the Arbitration Law 30 so that the
mandate of the arbitrators duly constituted in accordance with the
terms of this Agreement shall remain in effect until a final
arbitration award has been issued by the arbitrators. Each of the
parties further expressly agrees that Article 56(1) of the Arbitration
Law 30 shall apply to the effect that the arbitrators shall be bound by
strict rules of law in making their decisions and may not pronounce
judgement on equitable principles and other considerations. The
arbitral tribunal will be entitled to include in its decision a
determination as to the payment of the costs and expenses of the
arbitrators, the administrative costs of the arbitration, the legal
fees incurred by the Parties, the costs and expenses of witnesses and
all other costs and expenses necessarily incurred in the opinion of the
arbitral tribunal in order to properly settle the Dispute.
(f) Decision. Purchaser and Seller expressly agree (i) that the decisions
must be made based on majority votes of the arbitrators, (ii) that the
arbitral tribunal must state the reasons for its decisions in writing
and must make the decisions entirely on the basis of applicable laws
and not on the basis of the principle of ex aequo et xxxx, and (iii)
that the mandate and jurisdiction of the arbitral tribunal duly
constituted under this Agreement will remain in effect until a final
award has been issued (including any corrections or interpretation of
such award) by the arbitral tribunal.
Section 10.9 Extension; Waiver. At any time prior to the Closing Date, either
party may (a) extend the time for the performance of any of the obligations or
other acts of the other party, (b) waive any breach of the representations and
warranties of the other party contained in this Agreement or (c) waive
compliance by the other party with any of the
59
agreements or conditions contained in this Agreement. Any agreement on the part
of a party to any such extension or waiver shall be valid only if set forth in
writing signed by such parties. The failure of any party to this Agreement to
assert any of its rights under this Agreement or otherwise shall not constitute
a waiver of those rights.
Section 10.10 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by either of the parties
hereto without the prior written consent of the other party, except that
Purchaser may assign, in its sole discretion, any or all of its rights and
interests hereunder to any direct or indirect wholly owned Subsidiary of
Purchaser. Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and permitted assigns.
Section 10.11 Language. This Agreement is concluded in both Bahasa Indonesia and
English. In the event of any inconsistency or contradiction between the Bahasa
Indonesia and English texts, the Indonesian text shall prevail.
Section 10.12 Announcements. No announcement or circular in connection with the
existence or the subject matter of this Agreement shall be made or issued by or
on behalf of Seller or the Purchaser without the prior written approval of
Seller or the Purchaser (as the case may be). This shall not affect any
announcement or circular required by law or any regulatory body or the rules of
any recognised stock exchange but the party with an obligation to make an
announcement or issue a circular shall consult with the other party insofar as
is reasonably practicable before complying with such an obligation.
60
IN WITNESS WHEREOF, the duly authorized representatives of Seller and Purchaser
have executed this Agreement as of the date first written above.
PERUSAHAAN PERSEROAN (PERSERO) SINGAPORE TELECOM MOBILE PTE LIMITED
PT TELEKOMUNIKASI INDONESIA TBK
[STAMP]
BY /s/ Kristiono By /s/ Xxx Xxxx Koi
------------------------------ ---------------------------------
Name: Kristiono Name: Xxx Xxxx Koi
Title: Director Title: Attorney-in-Fact
(Power of Attorney No. (Power of Attorney dated 27
K.TEL.35/HK.510/UTA-00/02, February 2002)
dated 2 April 2002)
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