Hutchison Telecommunications International Ltd. Contracts
Sample Business Contracts
Agreement for Marketing Service - Communications Authority of Thailand, Hutchison CAT Wireless Multimedia Co. Ltd.
Services Forms
CONFIDENTIAL INFORMATION REDACTED
(Translation of Thai Language Original)
THE AGREEMENT FOR MARKETING SERVICE
OF MOBILE TELEPHONE UNDER
THE CELLULAR DIGITAL AMPS 800 BAND A
SYSTEM OF THE COMMUNICATIONS
AUTHORITY OF THAILAND
BETWEEN
THE COMMUNICATIONS AUTHORITY OF THAILAND
AND
HUTCHISON CAT WIRELESS MULTIMEDIA COMPANY LIMITED
----------
THIS AGREEMENT is made at the Communications Authority of Thailand No. 99 Moo 3,
Chaeng Watthana Road, Kwaeng Thung Song Hong, Khet Laksi, Bangkok Metropolis
10002 on 11 August 2003 between THE COMMUNICATIONS AUTHORITY OF THAILAND, by Mr.
Thirapong Suttinon, Governor of the Communications Authority of Thailand,
hereinafter referred to as "CAT", on the one part, and HUTCHISON CAT WIRELESS
MULTIMEDIA COMPANY LIMITED (previously known as TAWAN MOBILE TELECOM LIMITED), a
company incorporated under the laws of Thailand, by Mr. Ormsin Chivapruck and
Mr. Stephen Wing Fai Sun, the Directors authorized to sign to bind HUTCHISON CAT
WIRELESS MULTIMEDIA COMPANY LIMITED as evidenced by the Certification Document
of the Partnerships and Companies Registration Office, Bangkok Metropolis No.
10939 dated 16 July 2003, which is attached hereto and referred to in Clause
18.1, and having its head office located at 1768 IFCT Tower Floor 23rd Floor,
New Petchburi Rd., Kwaeng Huay Kwang, Khet Bangkapi, Bangkok 10320, hereinafter
referred to as the "Company", on the other part.
The Parties agree as follows:
CLAUSE 1. DEFINITIONS
In this Agreement:
"Marketing Service of Mobile Telephone Under the Cellular Digital AMPS 800 Band
A System of CAT" means the provision of means for the sale of cellular mobile
telephones, the provision of means for the sale of services of mobile telephone
under the Cellular Digital AMPS 800 Band A System of CAT including additional
services under the Cellular Digital AMPS 800 Band A System of CAT as well as the
provision of the after sale services and supplementary services relating to the
sale and the marketing promotion thereof.
"Metropolitan" means Bangkok Metropolis and Nonthaburi, Samutprakarn,
Pathumthani, Prachuab Kirikhan, Petchburi, Ratchaburi, Kanchanaburi, Nakorn
Pathom, Samutsongkram, Samutsakorn, Suphanburi, Ayudhaya, Angthong, Lopburi,
Singburi, Prachinburi, Nakorn Nayok, Srakaew, Chonburi, Chachoengsao, Rayong,
Chantaburi, Trad.
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"Upcountry" means other provinces outside the Metropolitan.
"Access Fee" means the fee for the mobile telephone number as imposed to the
recipients of service by CAT in accordance with regulations and orders of CAT
relating to cellular mobile telephone services.
"Airtime Charges" means the charges for cellular mobile telephone services and
fees for the uses of additional services as imposed to the recipients of service
by CAT in accordance with regulations and orders of CAT relating to cellular
mobile telephone services but not including fees for the use of overseas call
and other telecommunication services made available by CAT.
"Connecting Fee" means the fee for connecting the cellular mobile telephone
network of CAT with the telephone or telecommunications network of the Telephone
Organization of Thailand or of any person who is authorized, entitled or
permitted to the providing of telephone or telecommunications services.
"Monthly Service Fee" means the Access Fee and the Airtime Charges which CAT
imposes to the recipients of service on a monthly basis.
"Sign-on Fee" means the fee for allocation of mobile telephone number under the
cellular system, which is to be paid to CAT by the recipients of service, as
prescribed in the regulations and orders of CAT relating to the service of
mobile telephone under the cellular system."
"Revenue received by CAT" means the amount of Monthly Service Fee billed to the
recipients of service as stated in the invoices deducted by Connecting Fees,
Roaming fees and remuneration for marketing services payable to the Company in
Clause 5.
"Roaming Fee" means the fees for joint utilization of the networks of other
service providers of mobile telephone under the cellular system.
"Force Majeure" means to include any event outside the reasonable control of the
party concern that prevents such party from implementing this Agreement, such as
storm, flood, fire or peril or other similar natural calamity, riot or civil
commotion, usurpation, embargo, blockage, accident during transportation of the
equipment and accessories, strike, ware, unreasonable delay by government agency
or any other state enterprise in providing necessary service requested by the
Company.
"Postpaid Service" means mobile telephone service under the cellular digital
AMPS 800 Band A System of CAT, where the recipients of service are required to
execute a written service agreement with CAT, and CAT charges a Monthly Service
Fee from the recipients of service after the use of services.
"Prepaid Service" means mobile telephone service under the cellular digital AMPS
800 Band A system of CAT, where the recipients of service are not required to
execute a written service agreement with CAT, and the recipients of service pay
for the services, whether through the
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purchase of a prepaid card, or through the addition of service fee, prior to
using the aforesaid services
"Fees" means fees as prescribed in regulations or orders of CAT in respect of
the cellular mobile telephone services the recipients of service charges its
customers "International Call Fees" means service fees for international calls
which CAT charges its recipients of service marketed by the Company under this
Agreement
"Content Service Fees" means service fees for which a content provider, who is a
third-party, charges in the fixed rate of [***] of the content service fees that
CAT charges its recipients of service.
"Prepaid Service Fees" means service fees which have the value according to
face value of prepaid cards and service fees which have the value according to
the amount of money added to the service fee for Prepaid Services.
"International Roaming Services" means the provision of international roaming
services of both the inbound roaming and outbound roaming for the mobile
telephones under the Cellular Digital AMPS 800 Band A System of CAT in the
Central Region where CAT has assigned the Company to undertake marketing
activities under this Agreement in the forms of voice, SMS and data, both
inbound roaming and outbound roaming, and other relevant services as the Parties
may agree upon.
CLAUSE 2. THE MARKETING SERVICE OF MOBILE TELEPHONE UNDER THE CELLULAR DIGITAL
AMPS 800 BAND A SYSTEM
CAT agrees for the Company to provide the Marketing Service of Mobile Telephone
Under the Cellular Digital AMPS 800 Band A System of CAT so that there will be
recipients of the service of the mobile telephone under the Cellular Digital
AMPS 800 Band A System of CAT specifically in respect of the numbers which CAT
assigns the Company to undertake the marketing service in the Metropolitan of
not less than [***] numbers, divided into new recipients of service subscribing
not less than [***] numbers and existing recipients of service who have used the
service of the mobile telephone under the Cellular Analog AMPS 800 Band A System
of CAT as of September 30, 2000 and whom shall be encouraged by the Company to
come to use the service of the mobile telephone under the Cellular Digital AMPS
800 Band A System of CAT, subscribing the balance of approximately [***]
numbers. In doing so, the Company shall comply with conditions herein stipulated
including the rules, regulations, orders and policy of CAT.
CLAUSE 3. DURATION FOR PROVISION OF MARKETING SERVICE
CAT agrees for the Company to provide the Marketing Service of Mobile Telephone
Under the Cellular Digital AMPS 800 Band A System of CAT, as stipulated in
Clause 2 hereof, for a period commencing from 22 April 1998 until 21 April 2015.
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CLAUSE 4. CONDITIONS FOR MARKETING SERVICE
4.1 The Company shall provide the Marketing Service of Mobile Telephone
Under the Cellular Digital AMPS 800 Band A System of CAT as herein
stipulated to recipients of service of mobile telephones under the
Cellular Digital AMPS 800 Band A System as follows:
4.1.1 For the first [***] numbers, to be subscribed within 1 year from
the effective date of the Agreement Amending the Marketing
Service of Mobile Telephone Under the Cellular Digital AMPS 800
Band A System of CAT No. 2/2543 dated 16 October 2000, which are
divided into new recipients of service subscribing [***] numbers
and existing recipients of service who use the service of the
mobile telephone under the Cellular Analog AMPS 800 Band A
System of CAT and whom shall be encouraged by the Company to
come to use the service of the mobile telephone under the
Cellular Digital AMPS 800 Band A System of CAT, subscribing
another [***] numbers.
4.1.2 For the following [***] numbers, to be subscribed within 1 year
from the expiry date of the period stipulated in Clause 4.1.1,
which are divided into new recipients of service subscribing
[***] numbers and existing recipients of service who use the
service of the mobile telephone under the Cellular Analog AMPS
800 Band A System of CAT and whom shall be encouraged by the
Company to come to use the service of the mobile telephone under
the Cellular Digital AMPS 800 Band A System of CAT, subscribing
approximately [***] numbers.
4.1.3 For the next [***] numbers, to be subscribed within the period
of 1 year from the expiry date of the period stipulated in
Clause 4.1.2.
4.1.4 For the next [***] numbers, to be subscribed within the period
of 1 year from the expiry date of the period stipulated in
Clause 4.1.3.
4.1.5 For the next [***] numbers, to be subscribed within the period
of 1 year from the expiry date of the period stipulated in
Clause 4.1.4.
4.1.6 For the next [***] numbers, to be subscribed within the period
of 1 year from the expiry date of the period stipulated in
Clause 4.1.5.
4.1.7 For the next [***] numbers, to be subscribed within the period
of 1 year from the expiry date of the period stipulated in
Clause 4.1.6.
4.1.8 For the next [***] numbers, to be subscribed within the period
of 1 year from the expiry date of the period stipulated in
Clause 4.1.7.
4.1.9 For the next [***] numbers, to be subscribed within the period
of 1 year from the
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expiry date of the period stipulated in Clause 4.1.8.
4.1.10 For the next [***] numbers, to be subscribed within the period
of 1 year from the expiry date of the period stipulated in
Clause 4.1.9.
4.2 The Company shall, at its sole expenses, encourage the existing
recipients of service who currently use the service of mobile telephone
under the Cellular Analog AMPS 800 Band A System of CAT to come to use
the service of mobile telephone under the Cellular Digital AMPS 800 Band
A System of CAT as stipulated herein. If, within 2 years form the
effective date of the Agreement Amending the Agreement for Marketing
Service of Mobile Telephone Under the Cellular Digital AMPS 800 Band A
System of CAT No. 2/2543 dated 16 October 2000, the Company is unable to
encourage the existing recipients of service who currently use the
service of mobile telephone under the Cellular Analog AMPS 800 Band A
System of CAT to come to use the service of mobile telephone under the
Cellular Digital AMPS 800 Band A System of CAT under this Agreement
wholly, CAT has the right to dispose of those recipients whom the
Company can yet to encourage to other service providers under the
cellular system.
4.3 As the Company has agreed to guarantee the minimum Revenue received by
CAT to CAT according to Clause 4.5, if the Company fail to achieve the
number of recipients of service within the period as provided in Clause
4.1.1 to 4.1.10, such shall not be the breach of the Agreement under
Clause 13 and CAT shall not have the right to terminate this Agreement
thereunder.
4.4 The Company shall, from the day immediately following to expiry date of
the period stipulated in Clause 4.1.10 until the expiry of the period
stipulated in Clause 3, provide the Marketing Service of Mobile
Telephone Under the Cellular Digital AMPS 800 Band A System of CAT to
the extent that there shall always be recipients of service subscribing
not less than [***] numbers. Should it appear that there are recipients
of service subscribing less than [***] numbers for any consecutive
period of 1 (One) year, CAT shall be entitled to provide marketing
service by itself or assign other person to undertake the marketing
service so as to render the unsubscribed numbers so subscribed, and the
Company shall thereby not be entitled to the remuneration stipulated in
Clause 5 for the numbers directly marketed by CAT or such other person.
However, CAT shall be liable to pay the lease fees, and fees for
improvement, replacement, repair and maintenance in respect of the
equipment and accessories in Clause 16.4 to the Leasing Company in
proportion to the numbers of which CAT is entitled to provide the
marketing service or assigns other person to undertake the marketing
service.
4.5 Within the period in Clause 3, to guarantee the Revenue received by CAT
in each year to CAT, the Company agrees to guarantee the minimum Revenue
received by CAT in each year for the whole term of this Agreement in the
amount of not less than [***], divided into the following amount per
year:
Year 1 (1 October 2000 to 30 September 2001) is [***]
2 (1 October 2001 to 30 September 2002) is [***]
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3 (1 October 2002 to 30 September 2003) is [***]
4 (1 October 2003 to 30 September 2004) is [***]
5 (1 October 2004 to 30 September 2005) is [***]
6 (1 October 2005 to 30 September 2006) is [***]
7 (1 October 2006 to 30 September 2007) is [***]
8 (1 October 2007 to 30 September 2008) is [***]
9 (1 October 2008 to 30 September 2009) is [***]
10 (1 October 2009 to 30 September 2010) is [***]
11 (1 October 2010 to 30 September 2011) is [***]
12 (1 October 2011 to 30 September 2012) is [***]
13 (1 October 2012 to 30 September 2013) is [***]
14 (1 October 2013 to 30 September 2014) is [***]
15 (1 October 2014 to 21 April 2015) is [***]
The term "year" means a period of 12 months of the 1st to 15th year,
which, for the 1st to 14th year, shall commence on October 1 until
September 30 of the following year and for the 15th year shall commence
on October 1, 2014 until April 21, 2015.
The term "half-year" means a period of 6 months of each year, the first
of which commencing on October 1 until March 31 of the following year
and the second of which commencing on April 1 until September 30 of the
same year except the 15th year which has only the first half of the year
which shall commence on October 1, 2014 until April 21, 2015.
4.6 In the case that Annual Revenue received by CAT for an entire year is
less than the minimum Revenue received by CAT in that year under Clause
4.5, the Company must additionally pay to CAT equal to the minimum
Revenue received by CAT, subtracted by the Annual Revenue received by
CAT in the particular year by making payment to CAT as follows:
4.6.1 If Revenue received by CAT during the first half of the year is
lower than the minimum Revenue received by CAT under Clause 4.5
for the first half of the year, the Company must make an
additional payment to CAT in an amount equal to:
the minimum Revenue received by CAT under Clause 4.5 for the
first half of the year subtracted by Revenue received by CAT
during the first half of the year.
The Company shall make the additional payment thereof to CAT
within 7 days following March 31 of the 1st to 14th year, and on
April 21, 2015 of the 15th year.
4.6.2 If Revenue received by CAT during the first half of the year is
lower than the minimum Revenue received by CAT under Clause 4.5
for the first half of the year but Revenue received by CAT
during the second half of the year is higher than the minimum
Revenue received by CAT under Clause 4.5 and:
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(1) If Revenue received by CAT for the entire year is lower
than the minimum Revenue received by CAT under Clause
4.5 for that year but Revenue received by CAT for the
entire year plus the additional payment that the Company
must pay to CAT under Clause 4.6.1 is higher than the
minimum Revenue received by CAT for that entire year,
CAT must make repayment to the Company in an amount
equal to:
Revenue received by CAT for the entire year plus the
additional payment that the Company must pay to CAT
under Clause 4.6.1, subtracted by the Revenue received
by CAT under Clause 4.5 for that entire year.
(2) If Revenue received by CAT for the entire year is higher
than the minimum Revenue received by CAT under Clause
4.5 for that entire year, CAT must make repayment to the
Company in an amount equal to the additional payment
that the Company must pay to CAT under Clause 4.6.1.
CAT agrees to make repayment under (1) or (2) to the
Company within 7 days following September 30 of the 1st
to 14th year, and April 21, 2015 of the 15th year.
4.6.3 If Revenue received by CAT during the first half of the year is
higher than the minimum Revenue received by CAT under Clause 4.5
for the first half of the year and Revenue received by CAT
during the second half of the year is lower than the minimum
Revenue received by CAT under Clause 4.5 for the second half of
the year, whereby
(1) Revenue received by CAT for the entire year is lower
than the minimum Revenue received by CAT under Clause
4.5 for that entire year, the Company must make an
additional payment to CAT in an amount equal to:
the minimum Revenue received by CAT under Clause 4.5 for
the entire year subtracted by Revenue received by CAT
for that entire year.
The Company must make an additional payment thereof to
CAT within 7 days following September 30 of the 1st to
14th year, and April 21, 2015 of the 15th year.
(2) Revenue received by CAT for the entire year is higher
than the minimum Revenue received by CAT under Clause
4.5 for that entire year, the Company needs not make
payment to CAT.
4.7 In respect of the compensation of the Access Fees under Clause 4.3 of
the Agreement for Marketing Service of Mobile Telephone Under the
Cellular Digital AMPS 800 Band A
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System of CAT dated 14 August 1996 which the Company owes to CAT, CAT
agrees that the Company can defer the payment of such outstanding
compensation of the Access Fees and interest to CAT. There will be
calculation of the compensation and default interest thereon at [***] as
from 22 April 1999 until the effective date of the Agreement Amending
the Agreement for Marketing Service of Mobile Telephone Under the
Cellular Digital AMPS 800 Band A System of CAT No. 2/2543 dated 16
October 2000 and such compensation and interest shall not accrued after
the effective date of the Agreement Amending the Agreement for Marketing
Service of Mobile Telephone Under the Cellular Digital AMPS 800 Band A
System of CAT No. 2/2543 dated 16 October 2000. However, if the Company
fails to procure, install, test and transfer title in the equipment and
accessories and test equipment and RF sub-system analysis device
including spare parts thereof for the [***] cell sites in Clause 16.1 to
CAT in full and ready for service by 30 November 2000, there will be
calculation of the compensation and interest thereon at [***] according
to Clause 4.3 of the Agreement for Marketing Service of Mobile Telephone
Under the Cellular Digital AMPS 800 Band A System of CAT dated 14 August
1996 backwards to the day following the effective date of the Agreement
Amending the Marketing Agreement No. 2/2543 dated 16 October 2000 until
the Company can procure, install, test and transfer the title in the
equipment and accessories and test equipment and RF sub-system analysis
device including spare parts thereof in full and is ready to provide the
service up to [***] cell sites to CAT according to Clause 16.1.
4.8 For the compensation for Access Fees together with interest which the
Company owes to CAT under Clause 4.7 above, CAT agrees that the Company
can defer the payment for 3 years without interest and make payment in 3
installments. The first installment in the amount of [***] of the total
amount of such compensation and interest shall be paid within 1 October
2003, the second installment in the amount of [***] thereof within 1
October 2004, and the last installment in the amount of [***] thereof
within 1 October 2005.
If the Company is in default of any installment payment of the
compensation and interest under the first paragraph, it shall be deemed
that the Company is in default of payment of the whole amount of debt
and the Company must pay all the outstanding compensation for Access
Fees together with interest thereon at [***] to CAT as from the date of
default until full payment is made. The provisions in this Clause shall
not prejudice the right of termination of CAT under Clause 13.
CLAUSE 5. REMUNERATION FOR MARKETING SERVICE
5.1 Subject to the stipulations of Clause 5.3, throughout the period
stipulated in Clause 3, CAT agrees to remunerate the Company for the
provision of the Marketing Service of Mobile Telephone Under the
Cellular Digital AMPS 800 Band A System of CAT as follows:
5.1.1 At the rate of [***] of the Access Fees according to the amount
billed to the recipients of service and Value Added Tax, payable
within 20 (Twenty) days
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from the date on which CAT has duly received the Access Fee
pursuant to Clause 7.1. If CAT fails to make payment to the
Company in such period, the Company shall have the right to
setoff the remuneration under this Clause 5.1.1 against any
amount which the Company must remit or pay to CAT under this
Agreement.
5.1.2 At the rate of [***] of the sum representing the Monthly Service
Fees according to the amount billed to the recipients of service
as specified in the invoices less Connecting Fees and Roaming
Fees, payable to the Company in accordance with Clause 5.2.
In calculating the remuneration as above-mentioned, the Value
Added Tax levied on the Sign-on Fees and the Monthly Service
Fee, which is paid by CAT for or collected from the recipients
of service, shall, prior to such calculation, be deducted.
5.1.3 Since the Company must be responsible for paying the expenses
under Clauses 16.4 and 16.9, both Parties agree that such rate
of remuneration for marketing service in Clauses 5.1.1 and 5.1.2
shall be adjusted according to the number of equipment and
accessories as well as equipment and accessories for the
additional services relating to mobile telephone under the
Cellular Digital AMPS 800 Band A System, the test equipment and
RF sub-system analysis device and all requisites in the
operation of the cell sites which have been completely installed
and tested and are in service, as follows:
5.1.3.1 In case of Postpaid Service where the Access Fees are
imposed at [***] per number per month:
(1) At the rate of [***] of the Sign-on Fees and
Fees according to the amount billed to the
recipients of service together with Value Added
Taxes of the remuneration for marketing
services, and the Monthly Service Fees
(exclusive of Value Added Taxes) according to
the amount billed to the recipients of services
as shown in the invoices after deduction of the
Connection Fees, Content Service Fees, and
Roaming Fees, commencing as from the day
following the date on which the Company has
completely procured, installed, tested and
transferred the title of the equipment and
accessories and test equipment and RF sub-system
analysis device including spare parts thereof,
and is ready to provide service to CAT according
to Clause 16.1 for up to [***] cell sites.
(2) At the rate of [***] of the Sign-on Fees and
Fees according to the amount billed to the
recipients of service together with Value Added
Taxes of the remuneration for marketing
services, and the Monthly Service Fees
(exclusive of Value Added Taxes) according to
the amount billed to the recipients of services
as shown in the
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invoices after deduction of the Connecting Fees,
Content Service Fees, and Roaming Fees,
commencing as from the day following the date on
which the Leasing Company has completely
installed and tested the equipment and
accessories, the test equipment and RF
sub-station system analysis device and all
requisites under Clause 16.4, and can provide
the service for up to [***] cell sites.
(3) At the rate of [***] of the Sign-on Fees and
Fees according to the amount billed to the
recipients of service together with Value Added
Taxes of the remuneration for marketing
services, and the Monthly Service Fees
(exclusive of Value Added Taxes) according to
the amount billed to the recipients of services
as shown in the invoices after deduction of the
Connecting Fees, Content Service Fees, and
Roaming Fees, commencing as from the day
following the date on which the Leasing Company
has completely installed and tested the
equipment and accessories, the test equipment
and RF sub-station system analysis device and
all requisites under Clause 16.4, and can
provide the service for up to [***] cell sites.
(4) At the rate of [***] of the Sign-on Fees and
Fees according to the amount billed to the
recipients of service together with Value Added
Taxes of the remuneration for marketing
services, and the Monthly Service Fees
(exclusive of Value Added Taxes) according to
the amount billed to the recipients of services
as shown in the invoices after deduction of the
Connecting Fees, Content Service Fees, and
Roaming Fees, commencing as from the day
following the date on which the Leasing Company
has completely installed and tested the
equipment and accessories, the test equipment
and RF sub-station system analysis device and
all requisites under Clause 16.4, and can
provide the service for up to [***] cell sites.
(5) At the rate of [***] of the Sign-on Fees and
Fees according to the amount billed to the
recipients of service together with Value Added
Taxes of the remuneration for marketing
services, and the Monthly Service Fees
(exclusive of Value Added Taxes) according to
the amount billed to the recipients of services
as shown in the invoices after deduction of the
Connecting Fees, Content Service Fees, and
Roaming Fees, commencing as from the day
following the date on which the Leasing Company
has completely installed and tested the
equipment and accessories, the test equipment
and RF sub-station system analysis device and
all requisites under Clause 16.4, and can
provide the service for up to [***] cell sites.
5.1.3.2 In case of Postpaid Service where the Access Fees are
imposed at Baht 300 per number per month:
(1) At the rate of [***] of the Sign-on Fees and
Fees according to the amount billed to the
recipients of service together with Value
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Added Taxes of the remuneration for marketing
services, and the Monthly Service Fees
(exclusive of Value Added Taxes) according to
the amount billed to the recipients of services
as shown in the invoices after deduction of the
Connecting Fees, Content Service Fees, and
Roaming Fees, commencing as from the day
following the date on which the Leasing Company
has completely procured, installed, tested and
transferred the title in the equipment and
accessories, the test equipment and RF
sub-system analysis device including spare parts
thereof, and is ready to provide service to CAT
according to Clause 16.1 for up to [***] cell
sites.
(2) At the rate of [***] of the Sign-on Fees and
Fees according to the amount billed to the
recipients of service together with Value Added
Taxes of the remuneration for marketing
services, and the Monthly Service Fees
(exclusive of Value Added Taxes) according to
the amount billed to the recipients of services
as shown in the invoices after deduction of the
Connecting Fees, Content Service Fees, and
Roaming Fees, commencing as from the day
following the date on which the Company has
completely installed and tested the equipment
and accessories, the test equipment and RF
sub-station system analysis device devices, and
all requisites under Clause 16.4, and can
provide the service for up to [***] cell sites.
(3) At the rate of [***] of the Sign-on Fees and
Fees according to the amount billed to the
recipients of service together with Value Added
Taxes of the remuneration for marketing
services, and the Monthly Service Fees
(exclusive of Value Added Taxes) according to
the amount billed to the recipients of services
as shown in the invoices after deduction of the
Connecting Fees, Content Service Fees, and
Roaming Fees, commencing as from the day
following the date on which the Leasing Company
has completely installed and tested the
equipment and accessories, the test equipment
and RF sub-station system analysis device and
all requisites under Clause 16.4, and can
provide the service for up to [***] cell sites.
(4) At the rate of [***] of the Sign-on Fees and
Fees according to the amount billed to the
recipients of service together with Value Added
Taxes of the remuneration for marketing
services, and the Monthly Service Fees
(exclusive of Value Added Taxes) according to
the amount billed to the recipients of services
as shown in the invoices after deduction of the
Connecting Fees, Content Service Fees, and
Roaming Fees, commencing as from the day
following the date on which the Leasing Company
has completely installed and tested the
equipment and accessories, the test equipment
and RF sub-station system analysis device and
all requisites under Clause 16.4, and can
provide the service for up to [***] cell sites.
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(5) At the rate of [***] of the Sign-on Fees and
Fees according to the amount billed to the
recipients of service together with Value Added
Taxes of the remuneration for marketing
services, and the Monthly Service Fees
(exclusive of Value Added Taxes) according to
the amount billed to the recipients of services
as shown in the invoices after deduction of the
Connecting Fees, Content Service Fees, and
Roaming Fees, commencing as from the day
following the date on which the Company has
completely installed and tested the equipment
and accessories, the test equipment and RF
sub-station system analysis device and all
requisites under Clause 16.4, and can provide
the service for up to [***] cell sites.
5.1.3.3 In case that the Leasing Company has completely
installed and tested the equipment and accessories, the
test equipment and RF sub-station system analysis device
and all requisites under Clause 16.4 and can provide the
service up to [***] cell sites, if the equipment and
accessories, the test equipment and RF sub-station
system analysis device and all requisites under Clause
16.4 which have been installed and tested by the Leasing
Company and are in service up to [***] cell sites cannot
provide the service for a consecutive period more than
120 days, whether at any one or several cell cites, CAT
shall pay remuneration for marketing service to the
Company during the period of unavailability of the
service at the rate according to Clause 5.1.3.1(1) or
Clause 5.1.3.2(1), as the case may be.
5.1.3.4 In case that the Leasing Company has completely
installed and tested the equipment and accessories, the
test equipment and RF sub-station system analysis device
and all requisites under Clause 16.4 and can provide the
service up to [***] cell sites, if the equipment and
accessories, the test equipment and RF sub-station
system analysis device and all requisites under Clause
16.4 which have been installed and tested by the Leasing
Company and are in service up to [***] cell sites cannot
provide the service for a consecutive period more than
120 days, whether at any one or several cell cites, CAT
shall pay remuneration for marketing service to the
Company during the period of unavailability of the
service as follows:
(1) In the case that less than [***] cell sites are
in service, CAT shall pay remuneration for
marketing service to the Company at the rate
under Clause 5.1.3.1(1) or Clause 5.1.3.2(1), as
the case may be.
(2) In the case that [***] cell sites or more but
less than [***] cell sites are in service, CAT
shall pay remuneration for marketing service to
the Company at the rate under Clause 5.1.3.1(2)
or Clause 5.1.3.2(2), as the case may be.
5.1.3.5 Subject to Clauses 5.1.3.6 and 5.1.3.7, in case that the
Leasing Company
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has completely installed and tested the equipment and
accessories, the test equipment and RF sub-station
system analysis device and all requisites under Clause
16.4 and can provide the service up to [***] cell sites,
if the equipment and accessories, the test equipment and
RF sub-station system analysis device and all requisites
under Clause 16.4 which have been installed and tested
by the Leasing Company and are in service up to [***]
cell sites cannot provide the service for a consecutive
period more than 120 days, whether at any one or several
cell cites, CAT shall pay remuneration for marketing
service to the Company during the period of
unavailability of the service as follows:
(1) In the case that less than [***] cell sites are
in service, CAT shall pay remuneration for
marketing service to the Company at the rate
under Clause 5.1.3.1(1) or Clause 5.1.3.2(1), as
the case may be.
(2) In the case that [***] cell sites or more but
less than [***] cell sites are in service, CAT
shall pay remuneration for marketing service to
the Company at the rate under Clause 5.1.3.1(2)
or Clause 5.1.3.2(2), as the case may be.
(3) In the case that [***] cell sites or more but
less than [***] cell sites are in service, CAT
shall pay remuneration for marketing service to
the Company at the rate under Clause 5.1.3.1(3)
or Clause 5.1.3.2(3), as the case may be.
5.1.3.6 In case that the Leasing Company has completely
installed and tested the equipment and accessories, the
test equipment and RF sub-station system analysis device
and all requisites under Clause 16.4 and can provide the
service up to [***] cell sites, but cannot yet install
and test the said equipment and accessories, the test
equipment and RF sub-station system analysis device and
all requisites and be ready to provide the service for
up to [***] cell sites or more within 30 November 2004,
the Parties agree to adjust the remuneration for
marketing service under Clause 5.1.3.1 (4) or Clause
5.1.3.2 (4), as the case may be, to the rate of [***] of
the Sign-on Fees and Fees according to the amount billed
to the recipients of service together with Value Added
Taxes of the remuneration for marketing services, and
the Monthly Service Fees (exclusive of Value Added
Taxes) according to the amount billed to the recipients
of services as shown in the invoices after deduction of
the Connecting Fees, Content Service Fees, and Roaming
Fees, commencing as from 1 December 2004 until the
Leasing Company can completely install and test the said
equipment and accessories, the test equipment and RF
sub-station system analysis device and all requisites
and provide the service up to [***] cell sites or more.
If, during 1 December 2004 to 30 November 2005, the
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equipment and accessories, the test equipment and RF
sub-station system analysis device and all requisites
under Clause 16.4 which have been installed and tested
by the Leasing Company and are in service up to [***]
cell sites cannot provide the service for a consecutive
period more than 120 days, whether at any one or several
cell cites, CAT shall pay remuneration for marketing
service to the Company during the period of
unavailability of the service as follows:
(1) In the case that less than [***] cell sites are
in service, CAT shall pay remuneration for
marketing service to the Company at the rate
under Clause 5.1.3.1(1) or Clause 5.1.3.2(1), as
the case may be.
(2) In the case that [***] cell sites or more but
less than [***] cell sites are in service, CAT
shall pay remuneration for marketing service to
the Company at the rate under Clause 5.1.3.1(2)
or Clause 5.1.3.2(2), as the case may be.
5.1.3.7 In the time period following Clause 5.1.3.6, if the
Leasing Company still cannot install and test the
equipment and accessories, the test equipment, and RF
sub-station system analysis device and all requisites
under Clause 16.4 and be ready to provide the service
for up to [***] cell sites or more by 30 November 2005,
the Parties agree to adjust the remuneration for
marketing service payable to the Company under Clause
5.1.3.6 [***] to the rate of [***] of the Sign-on Fees
and Fees according to the amount billed to the
recipients of service together with Value Added Taxes of
the remuneration for marketing services, and the Monthly
Service Fees (exclusive of Value Added Taxes) according
to the amount billed to the recipients of services as
shown in the invoices after deduction of the Connecting
Fees, Content Service Fees, and Roaming Fees, commencing
as from 1 December 2005 until the Leasing Company can
completely install and test the said equipment and
accessories, the test equipment, and RF sub-station
system analysis device and all requisites and provide
the service for up to [***] cell sites or more. If,
during 1 December 2005 until the date on which the
Leasing Company has completely installed and tested the
said equipment and accessories, the test equipment and
RF sub-station system analysis device and all requisites
and can provide the service up to [***] cell sites or
more, the equipment and accessories, test equipment and
RF sub-station system analysis device and all requisites
under Clause 16.4 which have been installed and tested
by the Leasing Company and are in service up to [***]
cell sites cannot provide the service for a consecutive
period more than 120 days, whether at any one or several
cell cites, CAT shall pay remuneration for marketing
service to the Company during the period of
unavailability of the service at the rate under Clause
5.1.3.1(1) or Clause 5.1.3.2(1), as the case may be.
5.1.3.8 In case that the Leasing Company has completely
installed and tested the
<PAGE>
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equipment and accessories, the test equipment and RF
sub-station system analysis device and all requisites
under Clause 16.4 and can provide the service up to
[***] cell sites or more, if the equipment and
accessories, the test equipment and RF sub-station
system analysis device and all requisites under Clause
16.4 which have been installed and tested by the Leasing
Company and are in service cannot provide the service
for a consecutive period more than 120 days, whether at
any one or several cell cites, CAT shall pay
remuneration for marketing service to the Company during
the period of unavailability of the service as follows:
(1) In the case that less than [***] cell sites are
in service, CAT shall pay remuneration for
marketing service to the Company at the rate
under Clause 5.1.3.1(1) or Clause 5.1.3.2(1), as
the case may be.
(2) In the case that [***] cell sites or more but
less than [***] cell sites are in service, CAT
shall pay remuneration for marketing service to
the Company at the rate under Clause 5.1.3.1(2)
or Clause 5.1.3.2(2), as the case may be.
(3) In the case that [***] cell sites or more but
less than [***] cell sites are in service, CAT
shall pay remuneration for marketing service to
the Company at the rate under Clause 5.1.3.1(3)
or Clause 5.1.3.2(3), as the case may be.
In calculating the number of equipment and
accessories, the test equipment and RF
sub-station system analysis device and all
requisites for the purpose of adjusting the rate
of remuneration for marketing service under this
Clause 5.1, it shall be deemed that such
equipment and accessories, the test equipment
and RF sub-station system analysis device and
all requisites are completely installed and
tested and ready for service when the they are
tested in accordance with the procedures
prescribed in the document attached hereto an
referred to in Clause 15.4 and the CAT
representative participates in and approves such
test. The Company shall notify CAT in writing at
least 7 CAT's business days prior to the test
date. In case that a notice has been given in
advance but CAT fails to assign its
representative to attend the test, it is agreed
that the test needs no approval from CAT
representative.
5.1.3.9 In case of the Prepaid Service
(1) At the rate of [***] of the Fees according to
the amount billed to the recipients of service
(together with Value Added Taxes of the
remuneration for marketing services) and the
Prepaid Service Fees sold or added (exclusive of
Value Added Taxes) after deduction of the
Connecting Fees at the rate of [***] of the
Prepaid Service
<PAGE>
- 16 -
Fees (which is inclusive of Value Added Taxes),
Content Service Fees, and Roaming Fees.
5.1.3.10 In the case that the Leasing Company has completely
installed and tested the equipment and accessories, the
test equipment and RF sub-station system analysis device
and all requisites under Clause 16.4 and has provided
the service up to [***] cell sites, but the Leasing
Company is not able to completely install and test the
equipment and accessories, the test equipment and RF
sub-station system analysis device and provide the
service of over [***] cell sites by 30 November 2004,
the Parties agree to adjust the remuneration for
marketing service payable to the Company under Clause
5.1.3.9 to the rate of to [***] of the Fees according to
the amount billed to the recipients of service (together
with Value Added Taxes of the remuneration for marketing
services), and the Prepaid Service Fees sold or added
(exclusive of Value Added Taxes) after deduction of the
Connecting Fees at the rate of [***] of the Prepaid
Service Fees (which is inclusive of Value Added Taxes),
Content Service Fees, and Roaming Fees, commencing as
from 1 December 2004 until the Leasing Company can
completely install and test the said equipment and
accessories, the test equipment, and RF sub-station
system analysis device and all requisites and provide
the service for up to [***] cell sites or more. However,
if, during 1 December 2004 to 30 November 2005, the
equipment and accessories, test equipment and RF
sub-station system analysis device and all requisites
under Clause 16.4 which have been installed and tested
by the Leasing Company and are in service up to [***]
cell sites cannot provide the service for a consecutive
period more than 120 days, whether at any one or several
cell cites, CAT shall pay remuneration for marketing
service to the Company during the period of
unavailability of the service as follows:
(1) In the case that less than [***] cell sites are
in service, CAT shall pay remuneration for
marketing service to the Company at the rate of
[***] of the Fees according to the amount billed
to the recipients of service (together with
Value Added Taxes of the remuneration for
marketing services), and the Prepaid Service
Fees sold or added (exclusive of Value Added
Taxes) after deduction of the Connecting Fees at
the rate of [***] of the Prepaid Service Fees
(which is inclusive of Value Added Taxes),
Content Service Fees, and Roaming Fees.
(2) In the case that [***] cell sites or more but
less than [***] cell sites are in service, CAT
shall pay remuneration for marketing service to
the Company at the rate of [***] of the Fees
according to the amount billed to the recipients
of service (together with Value Added Taxes of
the remuneration for marketing services), and
the Prepaid Service Fees sold or added
(exclusive of Value Added
<PAGE>
- 17 -
Taxes) after deduction of the Connecting Fees at
the rate of [***] of the Prepaid Service Fees
(which is inclusive of Value Added Taxes),
Content Service Fees, and Roaming Fees.
5.1.3.11 In the time period following Clause 5.1.3.8, if the
Leasing Company still cannot install and test the
equipment and accessories, the test equipment, and RF
sub-station system analysis device and all requisites
under Clause 16.4 and be ready to provide the service
for up to [***] cell sites or more by 30 November 2005,
the Parties agree to adjust the remuneration for
marketing service payable to the Company under Clause
5.1.3.8 [***] to the rate of [***] of the amount billed
to the recipients of service (together with Value Added
Taxes of the remuneration for marketing services), and
the Prepaid Service Fees sold or added (exclusive of
Value Added Taxes) after deduction of the Connecting
Fees at the rate of [***] of the Prepaid Service Fees
(which is inclusive of Value Added Taxes), Content
Service Fees, and Roaming Fees, commencing as from 1
December 2005 until the Leasing Company can completely
install and test the said equipment and accessories, the
test equipment, and RF sub-station system analysis
device and all requisites and provide the service for up
to [***] cell sites or more. However, if during 1
December 2005 until the date on which the Leasing
Company has completely installed and tested the said
equipment and accessories, the test equipment and RF
sub-station system analysis device and all requisites
and can provide the service up to [***] cell sites or
more, the equipment and accessories, test equipment and
RF sub-station system analysis device and all requisites
under Clause 16.4 which have been installed and tested
by the Leasing Company and are in service up to [***]
cell sites cannot provide the service for a consecutive
period more than 120 days, whether at any one or several
cell cites, CAT shall pay remuneration for marketing
service to the Company during the period of
unavailability of the service at the rate [***] of the
Fees according to the amount billed to the recipients of
service (together with Value Added Taxes of the
remuneration for marketing services), and the Prepaid
Service Fees sold or added (exclusive of Value Added
Taxes) after deduction of the Connecting Fees at the
rate of [***] of the Prepaid Service Fees (which is
inclusive of Value Added Taxes), Content Service Fees,
and Roaming Fees.
5.1.3.12 In the case that the equipment and accessories, test
equipment and RF sub-station system analysis device and
all requisites under Clause 16.4 have been installed and
tested by the Leasing Company and are in service up to
[***] cell sites but cannot provide the service for a
consecutive period more than 120 days, whether at any
one or several cell cites, CAT shall pay remuneration
for marketing service to the Company during the period
of unavailability of the service as follows:
(1) In the case that less than [***] cell sites are
in service, CAT shall
<PAGE>
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pay remuneration for marketing service to the
Company at the rate of [***] of the Fees
according to the amount billed to the recipients
of service (together with Value Added Taxes of
the remuneration for marketing services), and
the Prepaid Service Fees sold or added
(exclusive of Value Added Taxes) after deduction
of the Connecting Fees at the rate of [***] of
the Prepaid Service Fees (which is inclusive of
Value Added Taxes), Content Service Fees, and
Roaming Fees.
(2) In the case that [***] cell sites or more but
less than [***] cell sites are in service, CAT
shall pay remuneration for marketing service to
the Company at the rate of [***] of the Fees
according to the amount billed to the recipients
of service (together with Value Added Taxes of
the remuneration for marketing services), and
the Prepaid Service Fees sold or added
(exclusive of Value Added Taxes) after deduction
of the Connecting Fees at the rate of [***] of
the Prepaid Service Fees (which is inclusive of
Value Added Taxes), Content Service Fees, and
Roaming Fees.
(3) In the case that [***] cell sites or more but
less than [***] cell sites are in service, CAT
shall pay remuneration for marketing service to
the Company at the rate of [***] of the Fees
according to the amount billed to the recipients
of service (together with Value Added Taxes of
the remuneration for marketing services), and
the Prepaid Service Fees sold or added
(exclusive of Value Added Taxes) after deduction
of the Connecting Fees at the rate of [***] of
the Prepaid Service Fees (which is inclusive of
Value Added Taxes), Content Service Fees, and
Roaming Fees.
5.1.3.13 A prepaid card may only be used for the mobile
telephone service under the cellular digital AMPS 800
Band A System of CAT within Thailand, and the payment of
remuneration for marketing service shall be calculated
pursuant to Clauses 5.1.3.9 to 5.1.3.12. In case the
Parties desire to allow the use of a prepaid card for
International Roaming Services, international call
services, or other services of the CAT relating to the
mobile telephone service under Digital AMPS 800 Band A
of CAT, CAT and the Company shall further enter into a
written agreement prescribing the terms of such services
and the rate for payment of remuneration for marketing
services therefor.
5.1.3.14 Any Fees which the Company is required to remit to the
CAT under Clauses 7.2 and 7.5 for calculation of the
remuneration for marketing service under Clause 5.1.3 of
this Agreement, and any Fees, which are deemed to belong
to the Company and need not be remitted to the CAT nor
counted for the calculation of the aforesaid
remuneration for marketing service, are to be in
accordance with the stipulations by CAT
5.2 CAT shall pay the remuneration, as stipulated in Clause 5.1.2 or Clause
5.1.3, to the
<PAGE>
- 19 -
Company in consideration for providing of the Marketing Service of
Mobile Telephone Under the Cellular Digital AMPS 800 Band A System of
CAT, together with the Value Added Tax levied on such remuneration which
CAT is required by law to pay, within three business days of CAT from
the day following the date on which CAT receives in full each payment of
the Monthly Service Fees from the Company according to Clause 7.2, or
from the day following the date on which CAT receives payment of the
service fees for Prepaid Service according to Clause 7.5 (as the case
may be). The Company shall simultaneously issue and give to CAT the
Receipt for such payments together with the Tax Invoice thereof. If CAT
fails to pay the amount in the said period, the Company can setoff such
amount against the amount payable or remittable by the Company to CAT
under this Agreement.
5.3 In case that CAT or the National Telecommunications Board, the Ministry
of Transport and Communications or any other state entity being
authorized, entitled or permitted to regulate telecommunications service
ceases to impose the Access Fee or the Sign-on Fee, or imposes the
Access Fee at the rate lower than [***] per number per month or higher
than [***] per number per month, or imposes the Sign-on Fee at the rate
lower or higher than the rate imposed on the effective date of the
Agreement Amending the Agreement for Marketing Service of Mobile
Telephone Under the Cellular Digital AMPS 800 Band A System of CAT No.
2/2543 dated 16 October 2000, or imposes the Airtime Charges at a rate
lower or higher than [***] per minute, which will cause the Revenue of
CAT or the remuneration of the Company hereunder to be reduced or
increased, whichever the case may be, CAT and the Company will negotiate
in good faith, with reason, to reach a mutual agreement to decrease or
increase the Revenue of CAT or the remuneration of the Company as
justified to both parties.
In case that CAT ceases to impose, or reduces or increases the rates of
the Sign-on Fee, the Access Fee and the Airtime Charge under the first
paragraph as requested by the Company, the Company is not entitled to
ask CAT to increase its remuneration or to claim any compensation.
5.4 If the Company fails to pay the compensation for Access Fees and/or the
interest as provided in Clause 4.7, fails to remit performance security
and/or Sign-on Fee as provided in Clause 7.1, fails to remit Monthly
Service Fee, Fees, and/or International Call Fees as provided in Clause
7.2, fails to remit the Prepaid Service Fees under Clause 7.5, or fails
to pay other expenses or money according to Clauses 16.9, 16.10, 16.11,
16.12, 16.13, 16.14 and/or 18 or surcharge, penalty, interest or any
other money to CAT within the period provided in this Agreement, CAT
shall have the right to setoff such compensation for Access Fees and/or
any interest or performance security or Sign-on Fees or Monthly Service
Fees, Fees, International Call Fees and/or Prepaid Service Fees, or
surcharge, penalty, interest, expenses or any other aforementioned
money, against the remuneration for marketing service, interest or any
other money that CAT has to pay to the Company under this Agreement.
5.5 CAT agrees to pay remuneration for marketing service of mobile telephone
under the Cellular Digital AMPS 800 Band A System of CAT in respect of
the Sign-on Fees and the Monthly Service Fees accrued before and during
the month in which the Agreement
<PAGE>
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Amending the Agreement for Marketing Service of Mobile Telephone Under
the Cellular Digital AMPS 800 Band A System of CAT No. 2/2543 dated 16
October 2000 becomes effective as follows:
5.5.1 At the rate of [***] of the Sign-on Fees together with Value
Added Tax, within 20 (Twenty) days following the date on which
CAT duly receives such Sign-on Fees from the Company.
5.5.2 At the rate of [***] of the Monthly Service Fees less Connecting
Fees and Roaming Fees in respect of the numbers that used the
service as can be collected by CAT from the users of those
numbers according to the invoices which CAT issues to them.
In calculating the above remuneration, the Value Added Taxes on
the Sign-on Fees and Monthly Service Fees which CAT paid for or
collected from the recipients of service shall be deducted
first.
CAT agrees to pay remuneration for marketing service of mobile
telephone under the Cellular Digital AMPS 800 Band A System of
CAT according to the first paragraph and Value Added Tax thereon
which CAT is liable according to law, and to send a summary
statement of the Monthly Service Fees already received by CAT to
the Company within the 20th (Twentieth) day of the month
following the month in which CAT receives such Monthly Service
Fees. The Company must issue a receipt for the remuneration
under Clause 5.5.1 and 5.5.2 as well as a tax invoice to CAT
simultaneously.
5.6 CAT agrees to pay remuneration from the Company's collection of
payment of the International Call Fees at the rate of [***] of
the International Call Fees according to the amount billed to
the recipients of service, whether or not the Company receives
payment from the recipients of service, together with the Value
Added Tax levied on such remuneration which CAT is required by
law to pay, within three business days of the CAT from the day
after date on which CAT receives each monthly payment for the
International Call Fees pursuant to Clause 7.2 in full. The
Company shall simultaneously issue and give to CAT the Receipt
for such payments together with the Tax Invoice thereof. If CAT
fails to pay the amount in the said period, the Company can
setoff such amount against the amount payable or remittable by
the Company to CAT under this Agreement.
CLAUSE 6. EXECUTION OF THE SERVICE AGREEMENT
6.1 In the case of Postpaid Service, the Company shall require the
recipients of service to enter into the Service Agreement with CAT in
accordance with the terms and conditions and at the fee rate which are
not higher than the rates to be prescribed by CAT, subject to Clause
9.2. CAT agrees that the Company may print its company name, logo, and
brand name on the Service Agreement. The Company shall solely bear all
expenses relating to the printing of the forms of the Service Agreement
and arrangement for the recipients of
<PAGE>
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service to execute the same with CAT.
In making the arrangement for the recipients of service to execute the
Service Agreement with CAT as stipulated in the preceding paragraph, the
Company shall exercise care in verifying the correctness and genuineness
of documents provided by the recipients of service for the purpose of
attaching the same to the Service Agreement, (e.g. the originals and
copies of the Identification Card, House Registration, Certification
Document of Juristic Person, etc.) including the capacity of the
recipients of service in entering into a juristic act and the validity
and enforcement of the Service Agreement under the law. In the event
that any such document is forged, altered, false or incorrect in any
respect, or the recipients of service are incompetent or deficient in
entering into a juristic act, or the Service Agreement is not valid or
is not enforceable under the law, and thereby causing CAT in not being
able to collect the Monthly Service Fees for the use of mobile
telephones under the Cellular Digital AMPS 800 Band A System,
International Call Fees and other related service fees payable to CAT
for the service of mobile telephone under the Cellular Digital AMPS 800
Band A System of CAT, the Company is always required to remit the
Monthly Service Fees and International Call Fees to CAT according to
Clause 7.2 in full, and the Company must be liable in respect of the
fees for the use of other services of CAT relating to the service of
mobile telephone under the Cellular Digital AMPS 800 Band A System of
CAT, which shall be limited only to the amount thereof that cannot be
collected by CAT exclusive of interest or any other penalty and
surcharge which CAT is entitled to demand from the recipients of
service. The Company must pay such fees to CAT within 15 days from the
date of receipt of written notice from CAT. If the Company fails to do
so, the Company must pay interest at [***] of such amount to CAT. A
fraction of a month shall be treated as one month for this purpose.
The liability of the Company in respect of the fees for the use of other
services of CAT relating to the service of mobile telephone under the
Cellular Digital AMPS 800 Band A System of CAT pursuant to the second
paragraph arises only when CAT has used its best efforts to verify the
matter and complete the process of investigating, following through, and
demand collection in full from the service's recipient whose name
appears in the Service Agreement and has informed the Company of the
result thereof.
The Company shall not be liable in respect of the fees for the use of
other services of CAT relating to the service of mobile telephone under
the Cellular Digital AMPS 800 Band A System of CAT pursuant to the
second paragraph if the Company has exercised reasonable care in
verifying the correctness and genuineness of the documents provided by
the recipients of service for the purpose of attaching the same to the
Service Agreement at the same level that other reasonable persons in the
same business would do.
6.2 The Company shall send to CAT 1 original of the Service Agreement
together with 1 duplicate copy thereof and supplementary documents
thereto, made with each of the recipients of service, within the 15th
(Fifteenth) day of the month following the month in which the said
Service Agreement was entered into. In the event of modification,
amendment or addition to the Service Agreement and/or any supplementary
document thereto, the Company shall send to CAT an original and a
duplicate copy of the Service
<PAGE>
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Agreement and/or any supplementary document bearing such modification,
amendment or addition within the 15th (Fifteenth) day of the month
following the month in which such modification, amendment or addition
was made.
6.3 The Service Agreement shall stipulate that in case the Service Agreement
is terminated or extinguished, the Company must be responsible to return
the performance security to the recipient of service after deduction of
his outstanding debt (if any) meanwhile CAT will not have any
responsibility therefor.
CLAUSE 7. COLLECTION AND REMITTANCE OF PERFORMANCE SECURITY, SIGN-ON FEES,
FEES, MONTHLY SERVICE FEES, PREPAID SERVICE FEES, AND INTERNATIONAL
CALL FEES
7.1 The Company shall collect the performance security, the Sign-on Fees,
and Fees, at the rates prescribed by CAT subject to Clause 9.2. The
Company shall issue receipts and tax invoices therefor on behalf of CAT.
CAT hereby agrees to appoint the Company to act as its agent to issue
such receipts and tax invoices on its behalf CAT. The Company shall,
within the 15th (fifteenth) day of each month following the month in
which the said Service Agreements were executed, send to CAT the amounts
equal to [***] of the performance security and the Sign-on Fees,
together with the originals and duplicate copies of the Service
Agreements and the supplementary documents of respective recipients of
service as stipulated in Clause 6.2.
Should the Company fail to remit the performance security and/or the
Sign-on Fees to CAT within the period stipulated in the first paragraph,
the Company shall pay a surcharge at the rate of [***] on the
outstanding amount(s) of the performance security and/or the Sign-on
Fees. A fraction of a month shall be treated as one month for this
purpose.
Subject to Clause 6.3, the Company is entitled to retain and utilize the
balance of the performance security equal to [***] thereof and shall not
be obliged to pay any interest thereon or other payments to CAT. In the
event that there is the interest on the performance security payable to
the recipient of service, CAT shall bear the interest in respect of the
portion of [***] of the performance security and the Company shall bear
the interest in respect of the portion of [***] of the performance
security.
In every three-month period, CAT shall remit the amount of [***] of the
performance security to the Company in respect of the Service Agreement
terminated or extinguished during the said three months in order that
the Company shall setoff this amount against the amount unpaid by,
and/or return this amount to, the recipients of service. If CAT fails to
remit this amount to the Company, the Company shall have the right to
setoff this amount against the sum remittable or payable by the Company
to CAT under this Agreement.
7.2 In providing the Postpaid Service, CAT agrees to have the Company print
and send the invoices to the recipients of service on behalf of CAT and
collect from the recipients of services the Monthly Service Fees, Fees
and International Call Fees at the rate prescribed
<PAGE>
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by CAT (subject to Clause 9.2) on behalf of CAT as well as to issue the
receipts on behalf of CAT. CAT hereby agrees to appoint the Company to
act as its agent to issue the receipts for the Monthly Service Fees,
Fees and International Call Fees paid by the recipients of service, on
behalf of CAT. CAT further agrees to authorize the Company to make the
demand, take legal action, and file lawsuits against the recipients of
service for all the debts arising from the Monthly Service Fees, Fees
and International Call Fees unpaid by the recipients of service in the
name of the Company. The Company shall be responsible for all lost debts
in respect of the said Monthly Service Fees, accrued as from the
effective date of the Amendment to the Agreement for Marketing Service
of Mobile Telephone Under the Cellular Digital AMPS 800 Band A System of
CAT, No. 2/2543 dated 16 October 2000. The Company shall remit the said
Monthly Service Fees to CAT according to the third paragraph in full.
The Company agrees to assist CAT in demanding and taking legal actions
on behalf of CAT from and against the recipients of service who have the
outstanding debts prior to the effective date of the Amendment to the
Agreement for Marketing Service of Mobile Telephone Under the Cellular
Digital AMPS 800 Band A System of CAT, No. 2/2543, dated 16 October
2000, provided that the foregoing shall be limited only to the
recipients of service who have outstanding debts as from the effective
date of the Amendment to the Agreement for Marketing Service of Mobile
Telephone Under the Cellular Digital AMPS 800 Band A System of CAT, No.
2/2543 dated 16 October 2000. The Company shall be responsible for all
lost debts in respect of Fees and International Call Fees, accrued as
from the effective date of this Amendment to the Agreement for Marketing
Service of Mobile Telephone Under the Cellular Digital AMPS 800 Band A
System of CAT, No. 3/2543, dated ..... August 2003. The Company shall
remit the said Fees and International Call Fees to CAT in full. All
expenses incurred from taking all of the said actions shall be borne by
the Company.
CAT agrees that the Company may print its name, logo, and brand name on
such invoices and agrees to assign all claims it is entitled to against
recipients of service who fail to pay when due the Monthly Service Fees,
Fees, and International Call Fees to the Company so as to enable the
Company in its name to demand and take legal actions and enforcements
against such recipients on behalf of CAT. The Value Added Tax, if any,
as a result of such assignment shall be borne by the Company. The
Company shall remit to CAT the Monthly Service Fees, Fees, and
International Call Fees in the full amount billed to the recipients of
service as shown on the invoices, irrespective of whether the Company
can collect the same from the recipients of service or not, as follows:
(1) At [***] of the total amount of the said Monthly Service Fees
and International Call Fees within 30 days from the invoice
date, and at [***] of total amount of the Fees within 30 days
from the invoice date or the 15th day of the month following the
month of collection thereof, as the case may be.
(2) At [***] of the total amount of the said Monthly Service Fees,
Fees, and International Call Fees within 30 days following the
due date under (1).
(3) At [***] of the total amount of the said Monthly Service Fees,
Fees, and
<PAGE>
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International Call Fees within 30 days following the due date
under (2).
Should the Company fail to remit the Monthly Service Fees and the
International Call Fee in the full amount billed to the recipient of
service as shown on the invoices, and the Fees in the full amount stated
in the invoices or collected from the recipients of service, within the
period indicated in the third paragraph, the Company must pay the
interest to CAT at the rate of [***] of the outstanding amount of such
Monthly Service Fees, Fees, and International Call Fees. A fraction of a
month shall be treated as one month for this purpose.
The Company shall remit to CAT all of the Value Added Tax collected from
the recipients of service in each month within the 10th day of the
following month. If the Company fails to remit such Value Added Tax to
CAT within the said period, the Company must be liable to pay to CAT in
full any surcharge, penalty, interest, or any other money for which the
Revenue Department requires CAT to be liable, together with an interest
at the rate of [***] on the amount of such surcharge, penalty, interest,
or any other money. A fraction of a month shall be treated as one month
for this purpose.
The provisions in this Clause shall not be prejudicial to the right of
CAT to terminate this Agreement in accordance with Clause 13.
7.3 Subject to Clause 9.2, should the Company impose the performance
security, Sign-on Fees, Fees, Monthly Service Fees, and/or International
Call Fees at any rate(s) which differs from the rate(s) that CAT
requires the Company to collect pursuant to Clauses 7.1 and 7.2, whether
or not higher or lower than the rate prescribed by CAT, the Company
consents to pay to CAT a penalty equal to 2 (two) times of the sum so
varied from such rate(s) stipulated by CAT, which such penalty shall be
paid by the Company to CAT within 15 (fifteen) days from the date of
being notified by CAT thereof in writing. The Company shall, within 7
(seven) days from the date of a written notice thereof from CAT,
return/refund the portion of the sum(s) representing the performance
security, Sign-on Fees, Fees, Monthly Service Fees and/or International
Call Fees which was/were imposed higher than such rate(s) prescribed by
CAT, to recipients of service. The provisions in this Clause shall not
be prejudicial to the right of CAT to terminate this Agreement in
accordance with Clause 13.
7.4 The Company shall not be entitled to collect any other sum from the
recipients of service other than the performance security, Sign-on Fees
and Fees pursuant to Clause 7.1, Monthly Service Fees and/or
International Call Service Fees pursuant to Clause 7.2. Should the
Company be in breach of this Clause, the Company consents to pay to CAT
a penalty equal to 10 (ten) times of any such sum collected by the
Company, which such penalty shall be paid by the Company to CAT within
15 (fifteen) days from the date of being notified by CAT thereof in
writing. The Company shall also return/refund the sum which was
unrightfully collected, to the recipients of service within 7 (seven)
days from the date of being notified by CAT thereof in writing. The
provisions in this Clause shall not be prejudicial to the right of CAT
to terminate this Agreement in accordance with Clause 13.
<PAGE>
- 25 -
In the case that the Company is an agent to accept, or provides the
service of accepting, payments for or on behalf of distributors or
service providers other than CAT, the Company is entitled to collect any
price, fee or charge for the purchase of such goods or services from the
recipients of the service of mobile telephone under the Cellular Digital
AMPS 800 Band A System of CAT under this Agreement.
7.5 In the case of Prepaid Service, the Company agrees to buy from CAT
prepaid cards which have been procured by CAT or the Company under
Clause 2.3 for distribution to distributors procured by the Company,
recipients of services, or general public.
The Company shall send to CAT the report of receiving goods - prepaid
cards for CAT to issue the invoices for Prepaid Service Fees, receipts
and tax invoices to the Company according to the types, number and price
of the prepaid cards bought from CAT.
In adding the Prepaid Service Fees, the Company shall send to CAT a
report summarizing the payments of Prepaid Service Fees received within
the next business day after the date of receipt of such payments.
The Company shall sell prepaid cards to distributors, recipients of
services or general public and charge the Prepaid Service Fees and Fees
at the rate fixed by CAT (subject to Clause 9.2). All expenses incurred
in taking actions as stated in this Clause shall be borne by the
Company.
The Company must remit to CAT the Prepaid Card Service Fees and Fees,
irrespective of whether the Company can collect these fees from
distributors, the recipients of service, or general public or not, as
follows:
(1) At [***] of the total value of Prepaid Service Fees that have
been sold or added in each month within 30 days from the last
day of that month, and [***] of all Fees within 30 days from the
invoice date or within the 15th day of the month following the
month of collection thereof, as the case may be.
(2) At [***] of the total value of Prepaid Service Fees that have
been sold or added and Fees within 30 days from the due date
under (1).
(3) At [***] of the total value of Prepaid Service Fees that have
been sold or added and Fees within 30 days from the due date
under (2).
Should the Company fail to remit the total value of Prepaid Service Fees
that have been sold or added and Fees to CAT within the period provided
in the first paragraph, the Company must pay the interest to CAT at the
rate of [***] of such Prepaid Service Fees and Fees which remain
outstanding. A fraction of a month shall be treated as a month for this
purpose.
The Company shall remit to CAT all Value Added Taxes collected for
Prepaid Service Fees and Fees within the 10th day of the following
month. If the Company fails to remit the Value Added Tax to CAT within
such period, the Company will be fully liable to pay to CAT the
surcharge, penalty, interest, or any other money that the Revenue
Department
<PAGE>
- 26 -
requires CAT to pay, together with interest at [***] of the amount of
the surcharge, penalty, interest, or any other money. A fraction of a
month shall be treated as a month for this purpose.
The stipulations of this Clause shall not affect the right of CAT to
terminate this Agreement in accordance with Clause 13.
7.6 In providing Content Services in the case of Postpaid Service where the
content provider is a third party and the Company is responsible for the
Content Service Fees of such content provider, the Company shall prepare
and send a report on fees concerning the use of content charged by CAT
to the recipients of services within 5 days from the date of issuing the
invoices. Once CAT has verified that it is correct, CAT shall pay the
Content Service Fees and Value Added Taxes thereof (in case CAT is
required by law to pay) to the Company, within three business days of
CAT from the day following the date on which CAT receives in full each
payment of the Monthly Service Fees from the Company according to Clause
7.2
In the case of Prepaid Service, the Company shall prepare and send a
monthly report on fees concerning the use of content charged by CAT to
the recipients of services within 5 days from the end of the month in
which such content services are used. Once CAT has verified that it is
correct, CAT shall pay the Content Service Fees and Value Added Taxes
thereof (in case CAT is required by law to pay) to the Company, within
three business days of CAT from the day following the date on which CAT
receives in full each payment of the Monthly Service Fees from the
Company according to Clause 7.5
The Company shall simultaneously issue and give to CAT the receipt for
payments of such Content Service Fees together with the tax invoice
thereof (if any). If CAT fails to pay the amount in the said period, the
Company can setoff such amount against the amount payable or remittable
by the Company to CAT under this Agreement.
CLAUSE 8. JOINT UTILIZATION OF CAT DATA SYSTEM; OPENING, SUSPENSION AND
CANCELLATION OF SERVICES.
8.1 In order to facilitate the rendering of services to the recipients of
service of CAT, CAT agrees for the Company, for the purpose of the
Company providing marketing service under Clause 2, to share with CAT of
the use of CAT Data System relating to the mobile telephone services
under the Cellular Digital AMPS 800 Band A System of CAT. The opening,
suspension and cancellation of service of the mobile telephone under the
Cellular Digital AMPS 800 Band A System of CAT shall be in accordance
with the rules which CAT and the Company will agree further.
In the case that the Company keys data for opening, suspending or
canceling the service, the Company must be responsible for damage arisen
from such keying of the data by the Company to recipient of service or
third party under which CAT shall not be liable at all, and if the
recipient of service or third party claim or sue CAT to be liable for
such keying of data by the Company, the Company must undertake in any
way to protect CAT from being liable including defending CAT and
indemnify CAT for any expenses or damage suffered by CAT as a result of
such claim or litigation.
<PAGE>
- 27 -
8.2 The Company shall entirely be responsible, at its own expenses, for
procurement of equipment and accessories for the purposes of connecting
the line with and transmitting the data to and from CAT Data System as
stipulated in Clause 8.1. The Company must key the data for receipt of
the payment for the Monthly Service fees into the system of CAT in
accordance with the rules that CAT and the Company shall consider and
agree later.
8.3 CAT shall process the data in relation to the use of service and deliver
it to the Company for printing of the invoices by the 5th business day
of each billing cycle date(s) nominated by the Company and notified to
CAT.
8.4 CAT and the Company shall negotiate in good faith an arrangement for
data input to, and information access and report generation from, CAT
Data System in order to meet the requirements of the marketing
activities of the Company. CAT and the Company shall co-operate to
ensure that the CAT Data System meets the requirements of the Company
from time to time. If circumstances arise where those requirements are
not being reasonably met, CAT and the Company will negotiate to find a
viable commercial solution.
CLAUSE 9. MARKETING PLAN
9.1 The Company shall, as its entire expense, organize appropriate
activities relating to the marketing, advertisements, public relations
and sale promotion to be in accordance with marketing target.
9.2 The Company shall submit to CAT the marketing promotion plan, strategic
plan and marketing plan within 7 (Seven) days from the date of
implementation of such plans. If CAT finds that the said marketing
promotion plan, strategic plan and marketing plan are not suitable for
whatsoever reason, the Company shall, upon notification being made by
CAT, expeditiously consider improving such marketing promotion plan,
strategic plan and marketing plan to a suitable manner.
In order for the Company to conduct the marketing activities efficiently
and competitively in the business which will bring mutual benefit to
both Parties, CAT agrees that the Company can cease charging or reduce
the rates of the Access Fee, Airtime Charges, Sign-on Fees and
performance security for the Service Agreement to be payable by the
recipient of the service but such rates must not be higher than the
rates imposed by the regulations and orders of CAT. If the Company plans
to offer additional services relating to the mobile telephone under the
Cellular Digital AMPS 800 Band A System, the Company shall propose them
and ask CAT to impose the fees for such services.
CLAUSE 10. RESTRICTION ON THE IMPOSITION OF COST FOR NUMBER MARKETED BY THE
COMPANY
In providing the Marketing Service of Mobile Telephone Under the Cellular
Digital AMPS 800 Band A System of CAT under this Agreement, the Company shall
not impose on any person any
<PAGE>
- 28 -
cost for the number marketed by the Company.
CLAUSE 11. PERFORMANCE SECURITY
11.1 Within 20 days from the effective date of the Agreement Amending the
Agreement for Marketing Service of Mobile Telephone Under the Cellular
Digital AMPS 8999 Band A System of CAT No. 2/2543 dated 16 October 2000,
the Company shall provide CAT with a Letter of Guarantee issued by a
bank in Thailand in the amount of [***], as a security for its
performance under this Agreement. CAT shall surrender such performance
security to the Company upon the termination of this Agreement provided
the Company has duly complied with this Agreement in all respects and
has no indebtedness which is due and unpaid to CAT.
11.2 In case the Company is in breach of any stipulations of this Agreement
and CAT has sustained damage thereby, the Company consents for CAT to
claim from the bank issuing the Letter of Guarantee under Clause 11.1
and/or Clause 11.3 whether in whole or in part, to cover damage actually
sustained by CAT. The Company shall thereby provide CAT, within 15
(Fifteen) days of the date of being notified by CAT in writing, with
another Letter of Guarantee of any reliable bank in Thailand in a full
amount as required in Clause 11.1 and/or Clause 11.3.
11.3 As a security for its performance under Clauses 4.5, 4.6, 4.7, 7.1, 7.2,
7.5, 16.9, 16.10, 16.11, 16.12, 16.13, 16.14, and 18, the Company shall
provide CAT with Letters of Guarantee issued by a bank in Thailand as
follows:
11.3.1 Year 1 (1 October 2000 to 30 September 2001) is [***].
11.3.2 Year 2 (1 October 2001 to 30 September 2002) is [***].
11.3.3 Year 3 (1 October 2002 to 30 September 2003) is [***].
11.3.4 Year 4 (1 October 2003 to 30 September 2004) is [***].
11.3.5 Year 5 (1 October 2004 to 30 September 2005) is [***].
11.3.6 Year 6 (1 October 2005 to 30 September 2006) is [***].
11.3.7 Year 7 (1 October 2006 to 30 September 2007) is [***].
11.3.8 Year 8 (1 October 2007 to 30 September 2008) is [***].
11.3.9 Year 9 (1 October 2008 to 30 September 2009) is [***].
11.3.10 Year 10 (1 October 2009 to 30 September 2010) is [***].
11.3.11 Year 11 (1 October 2010 to 30 September 2011) is [***].
<PAGE>
- 29 -
11.3.12 Year 12 (1 October 2011 to 30 September 2012) is [***].
11.3.13 Year 13 (1 October 2012 to 30 September 2013) is [***].
11.3.14 Year 14 (1 October 2013 to 30 September 2014) is [***].
11.3.15 Year 15 (1 October 2014 to 21 April 2015) is [***].
11.4 The Company must provide CAT with a Letter of Guarantee issued by a bank
in Thailand as approved in writing by CAT according to Clause 11.3
within 15 (fifteen) days from the commencement date of each of the 2nd
to 15th years, except the Letter of Guarantee of the 1st year shall be
provided to CAT within 20 days from the effective date of the Agreement
Amending the Agreement for Marketing Service of Mobile Telephone Under
the Cellular Digital AMPS 800 Band A System of CAT No. 2/2543 dated 16
October 2000. CAT shall surrender such performance security to the
Company when the Company has fully complied with Clauses 4.5, 4.6, 4.7,
7.1, 7.2, 7.5, 16.9, 16.10, 16.11, 16.12, 16.13, 16.14 and 18, and there
are no outstanding debts under such Clauses payable to CAT.
CLAUSE 12. PENALTY
12.1 Should the Company be in breach of any or all of the conditions
stipulated in Clauses 10, 14.1, 14.3 and 14.4 of this Agreement, the
Company consents to pay CAT a daily penalty in the amount of Baht 5,000
(Five thousand Baht) per day commencing from the date on which the
Company committed such breach until the date on which the Company shall
be able to duly rectify the same or the date on which CAT shall
terminate this Agreement in accordance with the stipulations of
paragraph 2 of this Clause, as the case maybe. If it appears to CAT,
during the period on which the penalty is imposed under the preceding
paragraph, that the Company does not duly rectify the breach within the
reasonable period of time, CAT shall be entitled to terminate this
Agreement and to exercise the right to claim in accordance with Clause
13 as CAT deems it appropriate.
12.2 The imposition of penalty under Clause 12.1 shall not prejudice the
right of CAT to claim for compensation due to any breach by the Company
of this Agreement.
CLAUSE 13. TERMINATION
13.1 If the Company or i-MOBILE HOLDINGS COMPANY LIMITED becomes a bankrupt
or is subject to the order of the Court for the absolute receivership,
CAT has the right to immediately terminate this Agreement forthwith or
if the Company or i-MOBILE HOLDINGS COMPANY LIMITED is in breach of any
stipulations of this Agreement, or if i-MOBILE HOLDINGS COMPANY LIMITED
is in breach of any stipulations of the Shareholders Agreement of
HUTCHISON CAT WIRELESS MULTIMEDIA COMPANY LIMITED, a copy of which is
attached hereto and referred to in Clause 15.2, CAT is entitled to
terminate this Agreement, provided, however, that if any of the
above-mentioned
<PAGE>
- 30 -
breaches are capable of being rectified, CAT shall first serve a written
warning to demand any of the Company, or i-MOBILE HOLDINGS COMPANY
LIMITED to duly rectify such breaches within 90 (Ninety) days from the
date of being notified by CAT. Should the Company, or i-MOBILE HOLDINGS
COMPANY LIMITED fail to rectify the breach within such period, CAT is
entitled to immediately terminate this Agreement.
If the Company does not commence the installation of the equipment and
accessories and test equipment and RF system analysis device including
spare parts thereof in Clause 16.1 by 31 August 2000 or fails to
complete the procurement, installation, test, and transfer of title in
the equipment and accessories and test equipment and RF system analysis
device including spare parts thereof, and be ready to provide service up
to [***] cell sites to CAT according to Clause 16.1 by 30 November 2000,
CAT may terminate this Agreement immediately.
In case CAT exercises the right to terminate this Agreement as
stipulated in the first paragraph, the Company consents for CAT to claim
from the bank issuing the Letter of Guarantee under Clause 11, whether
in whole or in part, as CAT deems it appropriate. If the said security
is insufficient to pay the indebtedness, the Company shall pay the
balance thereof to CAT in full, and shall consent for CAT to claim for
other compensation which may be incurred through the breach by the
Company of this Agreement."
13.2 If CAT finds it necessary, or upon the expiry of this Agreement, or upon
the earlier termination of this Agreement, the Company shall provide CAT
with information and data relating to the Marketing Service of Mobile
Telephone Under the Cellular Digital AMPS 800 Band A System of CAT
including marketing data and any related data which were implemented
during the validity of this Agreement.
CLAUSE 14. GENERAL PROVISIONS
14.1 The Company shall comply with the conditions stipulated in the
Shareholders Agreement of HUTCHISON CAT WIRELESS MULTIMEDIA COMPANY
LIMITED, which is attached hereto and referred to in Clause 15.2.
14.2 If the Company shall be dissolved at any time during the duration
stipulated in Clause 3, both Parties agree that this Agreement shall be
revoked, suspended or terminated accordingly.
14.3 From the date of signing this Agreement and throughout the term, the
Company shall be subjected to the following conditions:
14.3.1 The shareholders of the Company who have Thai nationality must
hold shares of the Company in the amount which not less than the
amount fixed by the Ministry
<PAGE>
- 31 -
of Transport and Communications, or any state entity who has the
duty to regulate telecommunications business.
14.3.2 In case any shareholder of the Company under Clause 14.3.1 is a
juristic person, it shall be the juristic person incorporated in
Thailand and have not less than 51 (Fifty one) percent of all
the shareholders being Thai nationals and not less than 51
(Fifty one) percent of the total number of shares and its total
share capital held by Thai nationals. In case such juristic
person is a limited company, the Share Certificates issued to
bearers shall be deemed as shares held by foreigners, and in
case such juristic person is a limited partnership or a
registered ordinary partnership, its Managing Partner or Manager
must be of Thai nationality.
14.4 The Company shall not assign its rights and/or obligations under this
Agreement to any third party unless a prior written consent is given by
CAT.
The assignment of rights and obligations for the benefit of a bank
and/or finance company lending or granting credit to the Company for its
procurement and installation of equipment and accessories, buildings and
other items required for the operation of the Company under this
Agreement, or the juristic entity selling or providing service or
telecom technology who grants financial support to the Company shall be
permitted and valid when the Company is demanded by such bank or finance
company or the juristic entity selling or providing service or telecom
technology who grants financial support to the Company to pay all the
indebtedness owing to any of them under the Loan Agreement or Credit
Facility Agreement but the Company is unable to pay all such
indebtedness within a period stipulated under the said Loan Agreement or
Credit Facility Agreement. In such event, the Company shall immediately
inform CAT in writing of the said assignment of rights and obligations.
CAT shall be the person who considers granting approval of the
qualifications of the juristic person to be designated by the bank or
finance company or the juristic entity selling or providing service or
telecom technology who grants financial support to the Company, and such
juristic person that will accept the assignment of the rights and
obligations hereunder shall be an entity established and registered in
Thailand and subject to conditions in Clause 14.3.
The assignment of rights and obligations shall not, in all cases,
release the Company from its liability under this Agreement, and the
Company thereby agrees for CAT to claim for compensation for damages
incurred by the failure of the Company to comply with this Agreement
prior to the assignment including for the acts of or the non-compliance
by the assignee subsequent to the assignment as if it were the act done
by the Company. The assignment of rights and obligations under this
Agreement shall be made by an assignment agreement to be entered into
among the Company, the assignee and CAT, and the assignee shall thereby
be bound to comply with the stipulations of this Agreement.
14.5 The operation and the marketing service as stipulated under this
Agreement shall be subjected to the supervision by CAT. The Company
consents for CAT officer or any person entrusted by CAT to inspect its
operation and marketing service under this Agreement. The Company shall,
upon notification to be given by CAT in advance,
<PAGE>
- 32 -
provide data and information, as CAT deems it appropriate, for access
and inspection by CAT officer or any person entrusted by CAT throughout
its normal working hours. The Company shall use its best endeavor to
facilitate the conduct of such CAT officer or person entrusted by CAT.
To enable CAT to participate in the operation and to orientate itself to
the business management of the Company, the Company agrees that CAT can
send CAT officer to join as members in the Company's administrative,
managerial and service operational levels, and the Company shall,
throughout the term of this Agreement, bear all costs relating to
expenses, salary, wage, overtime payment, bonus and other welfare and
money for such CAT officer. CAT and the Company shall jointly fix the
direction and duration of service, position, number of staffs and other
conditions as CAT and the Company deem it appropriate.
14.6 Except for liability to the Value Added Tax as stipulated in Clauses
5.1, 5.2 and 21 the Company shall be responsible for payment of taxes
and/or any fees legally incurred by the entering into this Agreement
including the Value Added Tax for which CAT and the Company are legally
required or obligated to pay.
14.7 The Company shall duly operate as stipulated under this Agreement and as
provided under the law. The Company is restricted to secure benefits in
the manners which may be harmful to the society or national stability or
place or be contrary to public order or good morals or be illegal or be
in violation of the resolution of the Cabinet or of the policy,
regulations, rules, orders or notifications of CAT.
14.8 This Agreement shall be construed in accordance with the law of
Thailand. The interpretation of any question arisen out of this
Agreement or any documents relating to the same, shall be made in
accordance with the law of Thailand.
14.9 Settlement of Dispute by Arbitration.
CAT and the Company agree to have any dispute between them settled in
accordance with the following:
14.9.1 The dispute or conflict between the Parties in relation to the
stipulations of or the compliance with this Agreement which
cannot be settled shall be referred to arbitration.
14.9.2 Unless the Parties agree that the arbitration be conducted by
one arbitrator, the settlement of dispute shall be made by 2
(Two) arbitrators. Any party shall make a notice in writing to
the other party to express its intention to have the dispute
settled by arbitration and shall specify therein the name of
arbitrator appointed by it. The party receiving such notice
shall, within 30 (Thirty) days from the date of being notified
thereof, appoint the second arbitrator. If the said two
arbitrators cannot settle the dispute within 30 (Thirty) days,
such arbitrators shall jointly, within 7 (Seven) days from the
date of not being able to render an award, appoint
<PAGE>
- 33 -
an umpire, and such umpire shall then consider and settle the
dispute. The arbitration proceedings shall be conducted in
Bangkok Metropolis, Thailand in accordance with the UNCITRAL
Arbitration Rules or any other Rules agreed upon by the Parties.
14.9.3 In case that any party did not appoint the arbitrator or the two
arbitrators cannot jointly agree on the appointment of the
umpire, each of the Parties shall be entitled to request the
Director of the Arbitration Office, Ministry of Justice to
appoint the arbitrator or umpire, as the case may be.
14.9.4 The award rendered by the arbitrators or umpire, as the case may
be, shall be deemed final and shall have a binding effect upon
the Parties.
14.9.5 Each of the Parties shall bear the fees of its own arbitrator
and shall equally bear the expenses for the arbitration
proceedings. In case of making an appointment of the sole
arbitrator or the umpire, such arbitrator or umpire shall fix
the fee payable to him.
14.9.6 While the dispute is still under arbitration proceedings, CAT
and the Company shall continue to comply with the stipulations
of this Agreement until the arbitration award is rendered.
14.10 All notices, reports, correspondence and requests under this Agreement
shall be made in writing in Thai and shall be delivered to the Parties
at the respective addresses hereinbelow stipulated, or any other address
notified by one party to the other in writing from time to time. The
notices, reports, correspondences or requests shall be deemed effective
on the date on which the Company and/or CAT receives the same
notwithstanding the date specified therein.
14.10.1 Address of CAT:
THE COMMUNICATIONS AUTHORITY OF THAILAND
No. 99, Mu 3, Chaeng Watthana Road
Kwaeng Thung Song Hong, Khet Laksi
Bangkok Metropolis 10002
14.10.2 Address of the Company:
HUTCHISON CAT WIRELESS MULTIMEDIA COMPANY LIMITED
1768 IFCT Tower Floor 23rd Floor,
New Petchburi Rd., Kwaeng Huay Kwang,
Khet Bangkapi, Bangkok 10320"
14.11 CAT agrees that all notices, reports, correspondences and requests to be
sent to Hutchison CAT Wireless MultiMedia Company Limited under Clause
14.10 in respect of the breach of the Agreement or remedy of the default
or termination of this Agreement
<PAGE>
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shall sent with copies by fax and registered mail at the address below.
The date that such notices, reports, correspondences and requests to
Hutchison CAT Wireless MultiMedia Company Limited shall be deemed
effective shall be the date as provided in Clause 14.10. And the sending
of the copies to the address specified in this Clause shall have no
legal effect on the sending of notices, respects, correspondences and
requests in Clause 14.10.
Hutchison Whampoa Agency Limited
22 Floor, Hutchison House
10 Harcourt Road, Central
Hong Kong
Fax no. 582 2128 1778
Attn: Company Secretary
And
Hutchison Telecommunications International Limited
18/Fl, Two Harbourfront
22 Tak Fung Street,
Hung Hom,
Kawloon, Hong Kong
Fax no. 852 2827 1371"
14.12 The Company shall not permit any third party to perform, in its place or
stead and whether in whole or in part, its obligations under this
Agreement unless a consent in writing is given by CAT.
14.13 Except for the execution of the Service Agreement with the recipients of
service as stipulated in Clause 6.1, the Company shall, in its name, be
responsible to operate or conduct the marketing service under this
Agreement whether in administration, seeking recipients of service,
advertisement or entering into any juristic acts with third parties, CAT
shall not in any way be liable to any or all of the Company's operation
or marketing, the Company shall take whatsoever measure to prevent CAT
from being liable thereto including to defend and litigate on CAT's
behalf and to compensate CAT for any expenses or damage sustained by CAT
from such claim or lawsuit.
14.14 CAT reserves the right to assign rights and/or obligations under this
Agreement to other juristic entity established to undertake the
telecommunications business under the Act, and it shall be deemed that
the Company agrees and consents to such assignment unconditionally. CAT
shall inform the Company in writing of such assignment of rights and/or
obligations.
In the case CAT is transformed or converted to a new juristic entity,
the Company agrees and consents that all rights and/or obligations of
CAT under this Agreement shall be assigned to such new juristic entity
for undertaking the relevant business under this Agreement.
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The Company agrees and consents to waive the right to challenge, object
or claim from such assignment of right and/or obligations in the first
and second paragraphs and agrees to consent to such assignment of rights
and/or obligations under this Agreement to the new juristic entity in
the first and second paragraphs.
14.15 CAT agrees that even though CAT transfers all or part of the shares that
CAT holds in the Company, CAT shall assist and support the Company in
respect of technical aspect of the service of mobile telephone under the
Cellular Digital AMPS 800 Band A System of CAT under this Agreement for
the entire period in Clause 3.
14.16 In case that either party is unable to perform in accordance with this
Agreement within the period prescribed herein due to Force Majeure, such
party shall not be deemed to be in breach of the Agreement and the
period of performance of such party shall be extended equal to the
duration of such Force Majeure.
14.17 If Cat fails to pay the remuneration for marketing service to the
Company within the period of time under Clause 5.1.1 or Clause 5.2, or
the performance security within the period of time under Clause 7.1,
paragraph four, CAT shall pay interest to the Company at the rate of
[***] of the outstanding amount. A fraction of one month shall be
treated as a month. However, this shall be without prejudice to the
Company's right to offset such remuneration for marketing service or
performance security against the sum which the Company must remit or pay
to CAT under this Agreement.
CLAUSE 15. ATTACHMENTS
The following documents are attached hereto and shall be deemed as part hereof:
15.1 The Certification Document (Affidavit) of HUTCHISON CAT WIRELESS
MULTIMEDIA COMPANY LIMITED issued by the Partnerships and Companies
Registration Office, Bangkok Metropolis; and
15.2 Copy of the Shareholders Agreement of HUTCHISON CAT WIRELESS MULTIMEDIA
COMPANY LIMITED dated 16 October 2000 between CAT and i-Mobile Holdings
Company Limited.
15.3 Technical specifications and Operation Plan.
15.4 Guideline for Inspection and Acceptance of Cell Site Equipment and
Accessories.
In the event of any conflict between any of the said Attachments and the
stipulations of this Agreement, this Agreement will govern.
CLAUSE 16. PROVISIONS OF EQUIPMENT AND ACCESSORIES FOR THE CELL SITES
16.1 The Company shall, at its entire expenses, improve and increase the
efficiency and capacity of the Cellular Digital AMPS 800 Band A System
of CAT by procuring
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equipment and accessories for [***] cell sites on top of CAT existing
cell sites in a total of [***] cell sites, together with the equipment
and accessories for the provisions of additional services relating to
the mobile telephone under the Cellular Digital AMPS 800 Band A System
and the test devices as well as spare parts of the said equipment,
accessories and test devices in conformity with details in the Company's
Technical Specification and Operation Plan, attached hereto and referred
to in Clause 15.3, in full condition ready for service. The equipment
and accessories test equipment and RF sub-station system analysis device
as well as spare parts thereof to be procured by the Company shall be
brand new and unused and shall not be old stocks, and must be owned by
the Company.
The Company agrees to transfer the title in all the equipment and
accessories, test equipment and RF sub-station system analysis device as
well as spare parts thereof, as mentioned in the preceding paragraph
one, which are owned by the Company to CAT site by site as from the date
on which the Company completes the installation of such equipment and
accessories for each site and is ready to provide the service. CAT shall
not be responsible to any expenses and taxes related thereto whereby
such expenses and taxes shall be borne by the Company on behalf of CAT.
The Company agrees to make advance payment of the Value Added Tax
arising from the transfer of title as stated above on behalf of CAT. If
CAT obtains a refund of input tax from the Revenue Department, CAT shall
return such Value Added Tax to the Company according to such amount of
the refund of input tax received from the Revenue Department.
The Company shall commence the installation of equipment and accessories
under the first paragraph by 31 August 2000, and must complete the
procurement, installation and transfer of title in the equipment and
accessories, test equipment and RF sub-station system analysis device
including spare parts thereof according to the first paragraph and be
ready to provide the service up to [***] cell sites by 30 November 2000
otherwise CAT shall be entitled to terminate this Agreement immediately
without prior notice.
16.2 The Company shall confirm in writing that all the equipment and
accessories, test equipment and RF sub-station system analysis device
together with the spare parts thereof, procured under Clause 16.1 of
this Agreement, will be free from any derogation of right and
encumbrance, and the Company shall arrange to have CAT logo or symbol
and the words reading "Property of the Communications Authority of
Thailand" permanently and conspicuously affixed on the said equipment
and accessories.
16.3 The Company shall ensure that the performance, specification and
capacity of the equipment and accessories, test equipment and RF
sub-station system analysis device together with spares part thereof
provided under Clause 16.1 shall not be inferior than the Code Division
Multiple Access of the manufactures of CDMA Cellular System and the
technical specifications as prescribed in the Company's Technical
Proposal, attached hereto and referred to in Clause 15.3, and that the
equipment and accessories, test equipment and RF sub-station system
analysis device together with spare parts thereof as procured by the
Company shall be compatible with the Cellular System already procured by
CAT. In case the Company is to deviate from the Technical Specifications
and
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Operating Plan, attached hereto and referred to in Clause 15.3, the
Company shall propose its Technical Proposal for approval by CAT not
less than 30 days before the implementation thereof.
16.4 So as to enable the Company to do the marketing activities for the
mobile telephone under the Cellular Digital AMPS 800 Band A System of
CAT under this Agreement efficiency which will bring benefits to both
Parties, the Company agrees to let CAT lease additional cell sites in
the number not less than [***] cell sites, together with the equipment
and accessories for the provision of additional services relating to the
mobile telephone under the Cellular Digital AMPS 800 Band A System as
well as the test equipment and RF sub-station system analysis device for
the mobile telephone network under the Cellular system including all
requisites for the operation of those cell sites according to details in
the Technical Specifications and Operating Plan, attached hereto and
referred to in Clause 15.3, from BFKT (Thailand) Limited, hereinafter
referred to as the "Leasing Company". The Leasing Company shall own and
import and install the equipment and accessories and test equipment and
RF sub-station system analysis device and all requisites as mentioned
above, and CAT shall hire the Leasing Company to improve, replace,
repair and maintain, and manage those equipment and accessories and test
equipment and RF sub-station system analysis device and all requisites
mentioned above according to the lease agreement and the hire agreement
between CAT and the Leasing Company. The Company shall be solely
responsible for paying the lease payment, wages, payment for looking
after and management, VAT, and other related expenses as well as fine,
surcharge, interest, compensation or any other sum under the lease
agreement and the hire agreement between CAT and the Leasing Company to
the Leasing Company. CAT must not be responsible for those lease
payment, wage, payment for looking after and management, VAT, and other
related expenses as well as fine, surcharge, interest, compensation or
any other sum to the Leasing Company at all. The Leasing Company must
take action and enforcement against the Company only for the payment of
those lease payment, wage, payment for looking after and management,
VAT, and other related expenses as well as fine, surcharge, interest,
compensation or any other sum, and may not exercise its claim or enter
an action against CAT.
16.5 The equipment and accessories and test equipment and RF sub-station
system analysis device and all requisites under Clauses 16.1 and 16.4
must have a capacity to handle the recipients of services which will be
increased according to marketing target in Clause 4 and the volume of
traffic during busy hours of each promotion period without causing the
standards of the Grade of Service and Percentage of Drop Call during
normal situation and suitable duration to become inferior to the design
pursuant to the Technical Specifications and Operating Plan under Clause
15.3. In case that CAT deems it expedient to connect with other domestic
network (roaming), the equipment and accessories and test equipment and
RF sub-station system analysis device and all requisites under Clauses
16.1 and 16.4 must have the capacity to accommodate the roaming.
16.6 CAT shall use the equipment and accessories of the [***] and [***] cell
sites in Clause 16.1 and the equipment and accessories of the additional
cell sites which CAT shall lease
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from the Leasing Company according to Clause 16.4 for the Company to
undertake the marketing service hereunder, provided the Company must
also undertake the marketing service in consistency with the capacity of
the system as specified in each phase of the marketing plan.
16.7 CAT shall request for interconnections to Public Switching Telephone
Network or PSTN as well as the basic telephone service providers and
other cellular service providers, and shall facilitate the import of
equipment and accessories and test equipment and RF sub-station system
analysis device and all requisites under Clauses 16.1 and 1.64 and apply
for licenses under the Communication Radio Act B.E. 2498 and other
relevant law from the responsible agencies in the name of CAT.
16.8 The Company shall always procure sufficient equipment and accessories
for the provision of after sale service at its sole expense.
16.9 The Company agrees to be responsible for making payment to or in place
of CAT with respect to expenses incurred in the management of the [***]
and [***] cell sites under Clause 16.1 as from the effective date of the
Agreement Amending the Agreement for Marketing Service of Mobile
Telephone Under the Cellular Digital AMPS 800 Band A System of CAT
between CAT and the Company No. 2/3543 dated 16 October 2000, as
follows:
16.9.1 Installation cost and rent for the E-1 network connection
between the base station and cell sites.
16.9.2 Installation cost and rent for the inter-connection between the
switching centers of TOT and other basis telephone and cellular
service providers and the CDMA switching center of CAT.
16.9.3 Rent for the space of the equipment and accessories of base
station and switching centers.
16.9.4 Cost of electricity and water for the base station and switching
centers.
16.9.5 Remuneration for improvement, replacement, maintenance and
management of the Cellular CDMA network system.
16.9.6 Other expense for managing the cell sites such as, cost of
improvement, replacement, repair and maintenance, insurance
premiums, advisor fee etc.
16.10 The Company agrees to be responsible for remuneration for the use of
radio frequencies and license fees for the operation of service of
mobile telephone under the Cellular Digital AMPS 800 Band A System of
CAT which CAT may pay to the organization or agency authorized to impose
the same, for the amount not exceeding [***] per annum.
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For the amount exceeding [***] per annum, the Company agrees to be
responsible for the amount equal to:
The amount exceeding [***] per annum multiplied by the number of cell
sites in Metropolitan, divided by the aggregate amount of the cell sites
in Metropolitan and Upcountry.
Whereby, the above mentioned cell sites shall be counted from the
existing number of cell sites on the first day of every period that
permission for the use of radio frequencies and the service of mobile
telephone under Cellular Digital AMPS 800 Band A System of CAT is
granted by the authorized organization or agency to CAT.
16.11 The Company agrees to be responsible in place of CAT for installation
cost and rent for Inter Connection between the switching centers of
Telephone Organization of Thailand and other basic telephone service
providers and cellular service providers and the leased CDMA switching
center under Clause 16.4.
16.12 The Company must pay expenses under Clause 16.9, 16.10, and 16.11 to or
in place of CAT within the period of time notified by CAT or the persons
who have the right to claim those expenses from the Company, provided
that CAT shall also provide the Company with evidence of such expenses
which CAT requires the Company to pay. If the Company fails to pay those
expenses within the said period, the Company must pay interest at [***]
thereof per month to CAT. A fraction of a month shall be treated as one
month. The provisions in this Clause shall not prejudice the right of
termination of CAT under Clause 13.
16.13 The Company shall procure for the installation sites for the equipment
and accessories under Clause 16.1 and 16.4 and be solely responsible for
all expenses thereof. CAT may consider allowing the Company to use CAT's
premises as the installation sites as CAT deems appropriate and the
Company shall be responsible for the expenses thereof.
If it is necessary to improve, build or add the premises, buildings or
any other structures under the first paragraph including the
installation of air-conditioners in such sites, buildings or other
structures, the Company shall be responsible to do the same with its own
expenses subject to CAT's approval.
The Company shall pay rent or other consideration to CAT for the use of
CAT's premises under the first paragraph and be solely responsible for
cost of electricity, water and other expenses arising from the use of
such premises, buildings or structures as the installation sites under
the first paragraph. If CAT has already paid such expenses, the Company
shall reimburse the same to CAT within 30 (thirty) days from the date of
being notified by CAT.
CAT may allow the Company to use CAT's premises under the first
paragraph with or without conditions as it sees fit. Such decision of
CAT is final, and the Company cannot raise it as a reason not to perform
any obligations under this Agreement.
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In the case where the installation sites for the equipment and
accessories under Clause 16.1 and 16.4 are not CAT's premises, the
Company shall procure such premises with its own investment and be
responsible for all expenses thereof. The Company shall inform CAT of
such installation sites within 15 (fifteen) days from the date on which
the Company has procured such installation sites.
In case the premises under the first paragraph is the ownership of the
Company, when this Agreement terminates by whatever reasons, the Company
shall allows CAT to possess and use such premises for an additional
period of 1 (one) year from the date of termination without CAT paying
expenses for the possession and use of the same. In case the premises
under the first paragraph is not the ownership of the Company, the
Company must make an agreement with the owner of such premises to lease
them in the name of the Company throughout the period in which this
Agreement is in force and be solely responsible for the rent and any
expenses thereof. The Company shall use its reasonable endeavors to make
an agreement with the owner of the premises that if this Agreement
terminates by whatever reasons, the leasehold right of such premises
shall be transferred to CAT immediately for CAT to possess and use such
premises with the assets owned or possessed by CAT as a lessee in place
of the Company. In such case, CAT shall be responsible for the rent
and/or any expenses arising from the lease as from the date of transfer
of the leasehold right to CAT, and the Company agrees to be responsible
for debts and damages which have arisen from the lease agreement before
such leasehold right is transferred to CAT.
16.14 The Company must take out an insurance against all risks for the
equipment and accessories under Clause 16.1 which are normally insurable
for the full replacement value thereof with an insurance company
registered and operating insurance business in Thailand throughout the
term of the marketing under Clause 3 of this Agreement. The Company
shall pay the insurance premiums and CAT shall be designated a sole
beneficiary so that CAT shall use the proceeds of the insurance
agreement for repairing and/or procuring the replacement equipment and
accessories in case of loss or damage.
The Company shall furnish CAT with the insurance policy under the first
paragraph within 30 (thirty) days from the day in which the Company has
taken out the insurance each time. If the insurance policy expires
before the term of this Agreement, the Company shall extend the term of
such insurance policy or furnish CAT with a new insurance policy not
less than 30 (thirty) days before the date of expiration of the first
insurance policy.
Throughout the term of the marketing under Clause 3, the Company shall
be responsible to and indemnify CAT, the owner of the premises and/or
other persons for any damages to the premises, buildings or any
structures, equipment and accessories as well as any properties which
arise from the use thereof by the Company or from willful acts or
negligence of the Company, officers, employees or other persons in
contact with the Company.
16.15 In respect of mobile phones for the use of Prepaid Service, the Company
shall send the data in relation to the sales and the rechargeable value
of prepaid cards to CAT as of the
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end of every month within 45 (forty-five) days, which data shall at
least contain the information on productions and distribution of each
type of prepaid cards, the volume of mobile phone numbers that have been
activated for the use of Prepaid Service, the amount of time/minutes
used, the value of prepaid cards used, the outstanding value of prepaid
cards, or any other information which may be required by TOT Corporation
Public Company Limited ("TOT") to be notified in advance to the Company
by CAT.
In the case where the volume of the prepaid cards sold must be revised
or amended as a result of any refund thereof due to the damages or
losses of the prepaid cards or the request for the change of the prepaid
cards by purchasers whereby the refund or card replacement must be made
for the purchasers, CAT is entitled to revise or amend the data of the
distribution of the prepaid cards pursuant to the first paragraph in
accordance with the revised or amended data that has been agreed between
CAT and TOT. The data so revised or amended is to be used as the basis
for calculation of the Connecting Fees. The Company must submit the
requests of the purchasers for such refunds, the evidences of the refund
payments to the purchasers and/or any documents evidencing the requests
of the purchasers for the card replacements, to CAT within the period of
time stated in the first paragraph.
Clause 17. The Company shall propose a work schedule, for each and
every installation of equipment and accessories of cell site(s)
under Clause 16.1 to CAT for its approval not less than 30
(Thirty) days in advance.
Clause 18. The Company shall lease the transmission backbone and
equipment between the base station and the [***] cell sites and
the [***] cell sites under Clause 6.1 from CAT and pay all
expenses in the lease to CAT. CAT shall charge the lease fees at
reasonable rates which are not higher than those which CAT offer
to other persons in general.
If CAT cannot provide the transmission backbone and equipment
under the first paragraph, the Company must procure the part of
the transmission backbone and equipment that are not available
from CAT including spare parts thereof and transfer the title
therein to CAT as from the date on which those transmission
backbone and equipment are completely installed and ready for
service. CAT must not be responsible for any expenses and taxes
therefor which the Company must pay in place of CAT. In this
connect, the Company needs not lease those transmission backbone
and equipment from CAT, or the Company may lease the part of the
transmission backbone and equipment not available from CAT from
other service provider provided that the Company shall give a
prior notice to CAT not less than 7 days before leasing the same
from other service provider and must be responsible for all
expenses and taxes in the lease.
The transmission backbone and equipment procured by the Company
under the second paragraph shall be brand new and unused and
shall not be old stocks, and must be owned by the Company. The
Company shall certify in writing that all those transmission
backbone and equipment are free from any and all derogation of
right and encumbrances and shall arrange to have CAT logo or
symbol and the words reading "Property of the Communications
Authority of Thailand"
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permanently and conspicuously affixed on the said transmission
backbone and equipment.
Clause 19. CAT shall perform and provide the service of mobile
telephone under the Cellular Digital AMPS 800 Band A System of
CAT under this Agreement. CAT shall cooperate with the Leasing
Company to ensure performance integrity between the [***] and
[***] cell sites and the additional cell sites which CAT leases
from the Leasing Company as a whole and achieve the Grade of
Service.
Clause 20. As for equipment and accessories of the cell sites which CAT
leases from the Leasing Company, CAT or a juristic person that
accepts the transfer of rights and/or obligations from CAT
and/or a juristic person transformed or converted from CAT or a
subsidiary company or affiliated company of CAT or of the
juristic person that accepts the transfer of rights and/or
obligations from CAT and/or of a juristic person transformed or
converted from CAT according to Clause 13.10 of the Shareholders
Agreement of Hutchison CAT Wireless MultiMedia Company Limited
between CAT and i-Mobile Holdings Company Limited dated 16
October 2000 attached hereto and referred to in Clause 15.2,
shall have the right to use the same for internal communications
of CAT or both juristic persons or the subsidiary company or
affiliated company of CAT or of both juristic persons, and for
providing the mobile telephone service under the Cellular system
to the numbers under the service agreements made with CAT or
both juristic persons, or the subsidiary company or affiliated
company of CAT or of both juristic persons in the Upcountry
project, subject to Clause 21. The terms "subsidiary company"
and "affiliated company" under the first paragraph shall have
the same meanings as ascribed in Clause 3.1 of the Shareholders
Agreement of Hutchison CAT Wireless MultiMedia Company Limited
which is referred to in the first paragraph.
Clause 21. When CAT invests, installs and owns the network under the
Cellular Digital AMPS 800 Band A system in the Upcountry
project, both parties agree as follows:
21.1 In case that the recipients of service of Cellular
mobile telephones who have made a service agreement with
CAT or the juristic persons or the subsidiary company of
affiliated company of CAT or of the juristic persons
under Clause 20 in the Upcountry project use the service
of the Metropolitan network under this Agreement, i.e.
the [***] and [***] cell sites in Clause 16.1 and the
additional cell sites leased from the Leasing Company in
Clause 16.4, if the total number of the Cellular mobile
telephones that use the said service in each month shall
exceed [***] numbers per month or the aggregate airtime
charges for outgoing calls of those Cellular mobile
telephones shall exceed [***] minutes per month, CAT
shall include the outgoing airtime charges in respect of
the part of those Cellular mobile telephones which
exceed [***] numbers per month or [***] minutes per
month pursuant to the amount to be agreed between CAT
and the Company in the computation of remuneration for
marketing service under Clause 5. If the total number of
Cellular mobile telephones that use the said service do
not exceed [***] numbers per month and the
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total outgoing calls of those Cellular mobile telephones
that use the said service do not exceed [***] minutes
per month, the airtime charges for the Cellular mobile
telephones that use the said service shall belong to CAT
wholly and CAT needs not include them in the computation
of remuneration for marketing service payable to the
Company under Clause 5.
21.2 In case that the Cellular mobile telephones marketed by
the Company under this Agreement use the service of the
Upcountry network of CAT, if the total number of the
Cellular mobile telephones that use the said service in
each month shall exceed [***] numbers per month or the
aggregate airtime charges for outgoing calls of those
Cellular mobile telephones shall exceed [***] minutes
per month, the outgoing airtime charges in respect of
the part of those Cellular mobile telephones which
exceed [***] numbers per month or [***] minutes per
month pursuant to the amount to be agreed between CAT
and the Company shall be included in the computation of
remuneration for marketing service to the Company under
Clause 5. If the total number of Cellular mobile
telephones that use the said service do not exceed [***]
numbers per month and the total outgoing calls of those
Cellular mobile telephones that use the said service do
not exceed [***] minutes per month, the airtime charges
for the Cellular mobile telephones that use the said
service shall belong to CAT wholly and CAT needs not
include them in the computation of remuneration for
marketing service payable to the Company under Clause 5.
21.3 Clause 21.1 and Clause 21.2 of this Agreement shall
apply only in the case that CAT, or the juristic person,
or the subsidiary company or affiliated company of CAT
or the juristic person under Clause 20 conducts
marketing service of mobile telephone under the Cellular
Digital AMPS 800 Band A System of CAT Upcountry.
21.4 In calculation of the number of the Cellular mobile
telephones and the volume of airtime charges for
outgoing calls of those Cellular mobile telephones
according to Clauses 21.1 and 21.2, the number of
Cellular mobile telephones and volume of airtime charges
for both Postpaid Service and Prepaid Service shall be
counted altogether.
Clause 22. This Agreement shall be effective as from the date on which
i-Mobile Holdings Company Limited has fully and duly accepted the transfer of
shares from Tawan Telecom Company Limited pursuant to the Agreement for
Assignment of Rights, Duties and Liabilities under the Shareholders Agreement of
Hutchison CAT Wireless MultiMedia Company Limited among CAT, Tawan Telecom
Company Limited and i-Mobile Holdings Company Limited dated 16 October 2000.
CLAUSE 23 OPERATION OF PREPAID SERVICE
23.1 CAT agrees to authorize the Company to design, procure, and distribute
the Prepaid
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Cards, including to arrange for channel of distribution and method for
adding Prepaid Service Fees at its sole expense. The Company shall
present its proposal of its plan or details of the aforesaid operations
to CAT for consideration, and CAT has the right to inspect and regulate
such production, procurement, distribution, and method of adding the
Prepaid Service Fees.
23.2 The Company shall present a proposal for the procurement of prepaid
cards to CAT for approval at least 15 days before each procurement. In
the event that CAT does not raise any objections within 15 days from the
date it receives such proposal, the Company may proceed with such
proposal.
23.3 The prepaid cards shall expressly show the following words or symbols in
an appropriate size and form:
. Logo or name used for marketing purposes
. Face value of the cards in Arabic numbers or units, or not
specify the face value in the case of a complementary prepaid
card
. Item code, Serial No.
23.4 Prepaid cards must contain item code of which the particular card was
produced. Each prepaid card must be usable before the expiry date stated
in the card. In the event of an update or modification for security
purposes, the Company must consent for the holder of an old prepaid card
that has never been used to exchange the old card with a new card of
equal value, or consent for the Cellular mobile telephone using Prepaid
Services of the same number to use the remaining service fees under the
same conditions.
23.5 The value of each prepaid card before use must not be less than the face
value or unit indicated on the card, except in the case of complementary
phone cards.
In adding the Prepaid Service Fees, the Company must comply with the
conditions and regulations, which CAT shall consider and stipulate in
accordance with the plans in clauses 23.1 and 23.2.
23.6 The ratio of prepaid cards of each price and its quantity depends on the
demand of the people and the trend of the market. As such, the Company
shall supply a sufficient quantity for each type of card, or refrain
from causing affliction to the people.
23.7 Any modification of the face value for distribution by the Company must
receive a prior written approval by CAT before it can be performed.
23.8 In the case of prepaid cards not manufactured by the Company, for each
time the Company orders prepaid cards from a manufacturer, the Company
must notify CAT in writing along with a certificate issued by the
manufacturer of the prepaid cards. Such certificate must at least
contain details regarding the item code, quantity of the cards, the
value of each type of cards, the date of the order, and documents
regarding the importation issued by the Customs Department (in the case
that the prepaid cards are imported).
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23.9 The Company shall notify CAT of the name of the manufacturer of prepaid
cards, item code, face value, quantity of all prepaid cards manufactured
once they have been manufactured for CAT to issue invoice and tax
invoice under Clause 7.5.
23.10 The Company shall prepare a monthly report regarding the quantity of
prepaid cards manufactured, procured or imported, quantity of unsold
prepaid cards categorized by item code, quantity and face value of
prepaid cards together with the aggregate balance and report of the
addition of Prepaid Service Fees categorized by item code.
23.11 In the case that the Company acts intentionally or negligently which
results in fraud of prepaid cards, the Company shall be liable all
damages incurred therefrom.
23.12 The Company shall procure machinery and equipment capable of verifying,
regulating, and preventing the use of counterfeit prepaid cards with its
sole expense.
23.13 During the term of the Agreement, if it is found that there is a fraud
of prepaid cards, that the Prepaid service does not comply with a good
standard or causes damage to the reputation or property of CAT or the
people, CAT shall notify the Company in writing in order to remedy the
problem or suppress it within 90 days from the date the Company receives
such written notification. If after this period the Company is still
unable to remedy the problem or suppress it, CAT shall have the right to
terminate the Agreement under Clause 13, retain the security deposit
under Clause 11 and claim for damages.
23.14 The Company authorizes CAT to inspect the quantity and value of prepaid
cards in the Company's inventory, the recording system for the billing
of the distribution and addition of Prepaid Service Fees under this
Agreement. The Company shall prepare relevant information and various
details for the officer or authorized agent of CAT to perform such
inspection at any time during the Company's regular office hours as CAT
sees fit, regardless of whether CAT notifies the Company in advance or
not, and with the Company's full cooperation. The Company shall arrange
for a computerized system to control the stock of prepaid cards.
23.15 In the event that the prepaid cards that the Company buys from CAT under
Clause 7.5 are defective, damaged, expired or unable to be used for
adding the Prepaid Service Fees by other reasons, or the prepaid cards
are lost or stolen and have not yet been used, the Company will prepare
and send a report to CAT, which at least shows the quantity and value of
each type of cards and details of such defect, damage, expiry, inability
to add the Prepaid Service Fees, loss or theft, together with the
defective, damaged, expired prepaid cards or the prepaid cards that
cannot be used for adding the Prepaid Service Fees, or evidence of loss
or theft such as the complaint filed to a police officer. After CAT has
verified it, CAT shall issue a credit note to the Company in the amount
equal to the value of the prepaid cards that are defective, damaged,
expired or unable to be used for adding the Prepaid Service Fees by
other reasons, or the prepaid cards are lost or stolen.
In the event that the Company acts intentionally or negligently which
results in the prepaid cards being lost or stolen and such prepaid cards
have been used, the Company shall remit the Prepaid Service Fees to CAT
under Clause 7.5 equal to the amount of
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money of the service used.
This Agreement is made in duplicate with identical content. The parties have
thoroughly read and understood the same and, therefore, set their hands together
with the seal (if any) affixed in presence of witnesses, each holding one copy.
CAT COMPANY
Signed /s/ Thirapong Suttino Signed /s/ Ormsin Chevapruk
------------------------ ----------------------
(Mr. Thirapong Suttinon) (Mr. Ormsin Chevapruk)
Signed /s/ Stephen Wing Fai Sun
--------------------------
(Mr. Stephen Wing Fai Sun)
Signed /s/ Kajornsak Singhasenee Witness Signed /s/ Wisit Kanjanopas Witness
------------------------- -------------------
(Mr. Kajornsak Singhasenee) (Mr. Wisit Kanjanopas)
Signed /s/ Sirilak Rojanadis Witness Signed /s/ Amornyot Panich Witness
--------------------- -------------------
(Mrs. Sirilak Rojanadis) (Mr. Amornyot Panich)
<PAGE>
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Attachment 15.1
(TRANSLATION FROM THE THAI ORIGINAL)
This Document certifies only the The true and complete certification
particulars the company has registered must carry a serial number, bear
for legal effect. Facts relating to the full signature of the Registrar
actual standing should be sought and have the seal of the Registrar
elsewhere affixed
( G A R U D A )
No. Sor Or. 0057206 PARTNERSHIPS AND COMPANIES
REGISTRATION OFFICE
Bangkok Metropolis
CERTIFICATION DOCUMENT
This is to certify that this Company was registered under the Civil and
Commercial Code as a juristic person, being incorporated as a limited company,
Registration No. (2) 2575/2539 on the 14th day of June B.E. 2539 and that the
following information appears in the documents registration records on the day
of issuance hereof:
1. The name of the Company is "Tawan Mobile Telecom Company Limited".
2. The Company has 9 directors whose names are here listed:
(1) Mr. Anuwat Laikijrung (2) Mr.Sukhato Phummalee
(3) Mr. Rasamee Sawamipak (4) Mr.Worrawit Pativejwong
(5) Mr. Ratana Meetem (6) Mr.Prasartporn Surasit
(7) Mr. Ormsin Chivapruck (8) Mr.Watthanachai Watthanasonthi
(9) Mr. Ratien Srimongkon (10)______________________________
(11)_____________________________ (12)______________________________
(13)_____________________________ (14)______________________________
3. Number or names of the directors who can sign to bind
the Company are:
1.Any one of Mr. Prasartporn Surasit or Mr. Ormsin Chivapruck or
Mr. Watthanachai Watthanasonthi and any of one Mr. Anuwat
Laikijrung or Mr. Sukhato Phummalee or Mr. Worrawit Pativejwong
or Mr. Ratana Meetem or Mr. Rasamee Sawamipak or Mr. Ratien
Srimongkon jointly sign with affix the Company's seal
4. The registered capital is fixed at Baht 15,000,000
5. The address of the principal business office is 947 Moo 12
Bangna-Trad Road, Khwaeng Bangna, Khet Bangna, Bangkok Metropolis
6. The objects of the Company comprise 50 items and are as appear
in the copy of the documents attached hereto in 6 sheet(s)
which bear the signature of the Registrar who certified the
document and are affixed with the seal of the Partnerships and
Companies Registration Office.
Issued on this day the 9 October B.E. 2543
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The Registrar may terminate the
registration if it appears later that - Signature -
the registration is not duly done. ( Mrs. Manee Pinvises )
Registrar
(SEAL)
Bor Chor (2) 2575/2539
The objects of this Company are 50 to number, as follows:
GENERAL OBJECTS
(1) To buy, obtain, receive, rent, lease out buy or hire-purchase, own,
possess, improve, use or otherwise manage any property whatsoever as
well as the fruits thereof.
(2) To sell, transfer, mortgage, pledge, receiving pledge exchange or
otherwise dispose of any property.
(3) To be a broker, agent or commission agent in transactions and businesses
of all types except insurance, membership recruitment for associations,
and trading in securities.
(4) To borrow money, overdraw from accounts with banks, juristic persons or
other finance institutions; and to lend money or otherwise give credit,
with or without security; as well as to accept, issue, transfer or
endorse bills of exchange or other negotiable instruments except the
banking business, finance business and credit foncier business.
(5) To establish branch offices or to appoint agents, within or without the
Kingdom.
(6) To become a partner with limited liability in a partnership and a
shareholder in other companies.
OPERATING OBJECTS
(7) To carry on the business of trading in rice, rice products, cassava,
cassava products, maize, sesame seeds, beans, pepper, jute, kapok,
cotton, lac, castor beans, wood, resin, vegetables, fruits, forest
products, medicinal herbs, animal hides, animal horn, live animals,
animal flesh, sugar, animal feed, and agricultural products of all
kinds.
(8) To carry on the business of trading in machinery, engines, mechanical
tools, labour-saving devices, vehicles, electricity generators and
electrical goods, refrigerators, air-conditioners, fans, electric
rice-cookers, electric irons, water-pumps, heaters, coolers, kitchen
utensils, hardware, copperware, brassware, sanitary fittings, home
fittings, furniture, electrical equipment, and plumbing, including spare
parts and accessories for the aforesaid goods.
(9) To carry on the business of trading in fresh food, dried food,
pre-cooked food, tinned food, food seasoning, liquid refreshment,
liquor, beer, cigarettes, and other consumables.
(10) To carry on the business of trading in textiles, yarn, garments,
ready-made clothes,
<PAGE>
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wearing apparel and accessories, cosmetics, beauty aids and accessories,
and other consumer goods.
(11) To carry on the business of trading in medicines for the curing and
prevention of disease in humans and animals, pharmaceutical products,
chemical substances, medical and pharmaceutical equipment, fertilizers,
herbicides and pesticides, all kinds of growth agents for plants and
animals, and scientific instrument and equipment.
(12) To carry on the business of trading in gold, precious metal alloys,
silver, diamonds, precious gems and semi-precious stones, including
imitations thereof.
(13) To carry on the business of trading in paper, stationery, school books,
printed forms, printed books, educational materials, calculators,
printers, printing equipment and accessories, printed matter,
newspapers, filing cabinets, and all kinds of office equipment.
(14) To carry on the business of trading in construction materials,
construction equipment and tools, implements used in construction, all
types of workman's tools, pigment and paint, painter's equipment, and
all kinds of building ornament and decoration.
(15) To carry on the business of trading in plastics, or other similar
materials, either in raw form or processed into articles.
(16) To carry on the business of trading in latex, cured rubber sheet, or
other kinds of rubber, which are produced by or derived from any part of
the rubber tree, including synthetic rubber and synthetic versions of
the said materials or goods made by scientific means.
(17) To carry on the business of rice farming, orchard gardening, growing
plant crops, salt production (from evaporation of sea water), forestry,
rubber plantation, raising animals, and the stock-raising business.
(18) To carry on the business of a rice mill, sawmill, planing and
impregnating timber mill, automobile body builders, ceramic and glazed
ware factory, pottery factory, jute-bailing factory, vegetable-oil
extraction factory, paper factory, gunny-bag factory, textile factory,
spinning factory, textile dying and printing factory, rubber-tire
manufacture and retreading factory, iron works, metal casting and
machine lathing, and galvanized, iron sheet manufacture, pre-cooked food
factory, liquor distillery, gas factory, cigarette factory, sugar-mill,
plastic goods factory, metal-pressing and smelting factory, door and
window manufacture, glass factory, soft drink manufacture, rubber
casting factory, automobile assembly works.
(19) To carry on the business of a printing house, printing and publishing
books service, printing and publishing books for sale and newspaper
publishing.
(20) To carry on the business of ice factory.
(21) To carry on the business of fishery, fishing pontoons, and fish trading
on piers.
<PAGE>
- 50 -
(22) To carry on business of stone blasting and rock crushing.
(23) To carry on the contracting business of constructing buildings,
commercial buildings, residential buildings, offices, roads, bridges,
tunnels, dams, and all other kinds of constructions as well as all
categories of civil engineering work.
(24) To carry on the business of mining, ore smelting, ore extraction, ore
conversion, fusing ores, dressing minerals, mineral surveying, analyzing
and examining minerals, grinding ore and transportation of minerals and
ore.
(25) To carry on the business of hotels, restaurants, bars, night-clubs,
bowling alleys, massage parlors, cinema theatres and other kinds of
theatres of entertainment, vacation resorts, sport fields, and swimming
pools.
(26) To carry on the business of shipment transportation and loading of goods
and passengers on land, on water, or in the air, both within the country
and internationally, including the services of bringing shipment at
ports through customs clearance and management of all kinds of freight.
(27) To carry on the business of guided tours including all kinds of business
involved with guided tours.
(28) To carry on the business of foreign currency exchange (when permitted by
the Ministry of Finance).
(29) To carry on the business of import and export for distribution of the
goods stipulated in the objects.
(30) To carry on the business of hair-cutting, hair-dressing, beauty-salon,
dress-making, and laundry.
(31) To carry on the business of commercial photograph, the development,
printing and enlargement of photographs, including the same for
documents.
(32) To carry on the business of production and distribution of movie films.
(33) To carry on the business of a service station selling petrol and
providing repair, maintenance and inspection services, lubrication,
spraying, and anti-rust treatment for all kinds of vehicles, including
the services of installation, inspection and fixing of all kinds of
anti-theft and accident prevention accessories.
(34) To carry on service businesses in legal, accountancy, engineering and
architectural fields, including advertising.
<PAGE>
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(35) To undertake a service business providing guarantees for debt, liability
or performance of the contractual obligations of other persons,
including the guarantee for a person who has entered or departed the
country in accordance with the laws of immigration, taxation and other
laws.
(36) To undertake a service business of counselling and making
recommendations on problems related to work management, commerce and
industry, including problems of manufacturing, marketing and
distributing.
(37) To carry on a service business of collecting, compiling, preparing,
publishing and distributing statistics, data and information concerning
agriculture, industry, commerce, finance and the market, including
analyzing and assessing the outcome of business transactions.
(38) To carry on the business of a private hospital and nursing home, of
curing of the ill and people in pain, and providing technical
instruction and training in medicine and health science.
(39) To carry on a service business of being a manager who protects
interests, collects and receives the benefit and manages the properties
of others.
(40) To carry on the business of bidding for sale of goods and hire of work
in accordance with all of the objects, for any person, body of persons,
juristic person, government agency and state enterprise.
(41) To carry on the business of cellular telephone communication services.
(42) To engage in the business of providing news and telex communication
services and in the business of providing services on television and
radio, mass communication, and all kind of telecommunication; to
produce, procure, and to be hired to produce and procure videotape,
transmitter and receiver radio, television and video, and all kind of
communication equipment including necessary materials and devices in
order to implement its business engaged, or its services provided, or
otherwise be hired of service.
(43) To carry on its licensed or assigned business and to provide services
thereto, or to engage in the business requested by any government
agency, state enterprise, juristic person, or private agency both in and
outside Thailand, and to enter into or become an associate of a business
and affair which it is licensed or assigned or be hired of service in
relation with radio, television, video, equipment or all kind of
telecommunication instruments or mass communication businesses.
(44) To carry on the business to let property, sell, rent, let, hire
purchase, let for hire purchase, sell with right of redemption,
exchange, mortgage, or acquire or dispose of land and
<PAGE>
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immovable property by any means. To use or utilize land or other assets
and to mortgage, take mortgage of, rent, let, or exchange of movable
properties;
(45) To buy, sell, assemble, install radio and telephone appliances and all
kind of telecommunications and electronic equipment, as well as radio
wires and telegram wires used together with the such equipment and
appliances, metals used for installing pole and telephone wires, all
kinds of equipment to be used or to facilitate radio telegram in every
frequency including receiver or transmitter in any means, equipment for
marine telecommunication, tube communication and control systems,
satellite communication system, radio communication and accessories
thereof.
(46) To carry on the business of repair, and maintenance services of
merchandises pursuant to the Company's objects and to clean, test, and
give instruction in connection with the application, maintenance and
operation thereof.
(47) To make contact with govern agencies and competent office to acquire or
dispose of exclusive rights, agreements, rights, ownership, licenses,
rights over trademark, industrial property, copyrights, patents,
concessions or privileges necessary for business operation of the
Company.
(48) To file application and hold permits and other registration which are
necessary to or for the purpose of the business of the Company.
(49) To carry on the business of installation, repair, and maintenance of all
kind of public telephone and to import, manufacture and sell all kind of
telephone appliances, public telephone appliances and telephone cards.
(50) To carry on telecommunication business as well as to market
cellular-system telephone service on Digital AMPS 800 Band A of
Telecommunication Authority of Thailand, i.e. to procure sale channel
for cellular phone and service for Digital AMPS 800 Band A of the
Telecommunication Authority of Thailand and to procure additional
services in connection therewith, after-sale services and other services
in connection with sales and promotion.
<PAGE>
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Attachment 15.2
(Translation from Thai Original)
SHAREHOLDERS AGREEMENT
OF
TAWAN MOBILE TELECOM COMPANY LIMITED
----------
THIS AGREEMENT is made at the Communications Authority of Thailand No.
99 Mu 3, Chaeng Watthana Road, Kwaeng Thung Song Hong, Khet Laksi, Bangkok
Metropolis 10002 on 16 October 2000 between THE COMMUNICATIONS AUTHORITY OF
THAILAND, by Mr. Thirapong Suttinon, Governor of the Communications Authority of
Thailand, hereinafter referred to as "CAT", on the one part, and i-MOBILE
HOLDINGS COMPANY LIMITED, a limited company incorporated under the law of
Thailand, by Mr. Stephen Wing Fai Sun, the Director authorized to sign to bind
i-MOBILE HOLDINGS COMPANY LIMITED as evidenced by the Certification Document of
the Partnerships and Companies Registration Office, Bangkok Metropolis No. Mor.
Ror. 0026485 dated 10 October 2000, which is attached hereto and referred to in
Clause 19.1, and having its head office located at 990 22nd-25th Floor, Rama IV
Road, Kwaeng Silom, Khet Bangrak Bangkok Metropolis 10500, hereinafter referred
to as "i-Mobile", on the other part.
WHEREAS CAT has entered into the Shareholders Agreement of Tawan Mobile
Telecom Company Limited dated October 14, 1999 with Tawan Telecom Company
Limited in order to jointly invest in Tawan Mobile Telecom Company Limited,
hereinafter referred to as "the Company" with the main objective to undertake
the Marketing Service of the Mobile Telephone Under the Cellular Digital AMPS
800 Band A System of CAT; and
WHEREAS CAT has agreed to let Tawan Telecom Company Limited, hereinafter
referred to as "Tawan" transfer all of its shares in the Company to i-Mobile,
subject to condition that i-Mobile shall enter into an agreement with CAT under
the terms of the aforesaid Shareholders Agreement of Tawan Mobile Telecom
Company Limited.
Both parties which, unless specifically referred to, shall be
hereinafter collectively referred to as "the Parties", are desirous to enter
into a joint investment and be further bound by the Shareholders Agreement of
Tawan Mobile Telecom Company Limited, and therefore agree to execute this
Shareholders Agreement of Tawan Mobile Telecom Company Limited according to the
terms as follows:
CLAUSE 1. FORMATION OF THE COMPANY, ACCEPTANCE OF SHARE TRANSFER AND
PROPORTION OF SHAREHOLDINGS
The registration of the Company shall be in accordance with details
stipulated in the Memorandum and Articles of Association of the Company as
prescribed herein.
<PAGE>
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1.1 The Thai name of the Company shall be "BORISAD TAWAN MOBILE
TELECOM JAMKAD". The English name of the Company shall be "TAWAN MOBILE TELECOM
COMPANY LIMITED".
1.2 The head office of the Company shall be located at No. 947 Mu
12, Bangna-Trad Road, Kwaeng Bangna, Khet Bangna, Bangkok Metropolis 10260. If
there will be any change in the address of the head office of the Company, a
written notice thereof shall be given to CAT not less than 30 (Thirty) days in
advance.
1.3 The main objective of the Company shall be for the Marketing
Service of the Mobile Telephone Under the Cellular Digital AMPS 800 Band A
System of CAT including other objectives as listed in the Memorandum of
Association of the Company.
In this Agreement, the term "Marketing Service of the Mobile
Telephone Under the Cellular Digital AMPS 800 Band A System of CAT" means the
provision of means for the distribution of cellular mobile telephones, the
provision of means for sale of services of the Mobile Telephone Under the
Cellular Digital AMPS 800 Band A System of CAT including the provision of value
added services relating thereto as well as after sale services and supplementary
services relating to the sale and marketing promotion.
In carrying out the business under the objective mentioned in
paragraph one hereinabove, the Company shall comply with all related laws and
resolutions of the Cabinet.
1.4 Subject to Clause 2 hereof, the registered capital of the
Company shall be Baht 15,000,000 (Fifteen million Baht) divided into 1,500,000
(one million five hundred thousand) ordinary shares entered in a name
certificate with the par value of Baht 10 (Ten Baht) each.
1.5 i-Mobile holds shares in the Company at 65 per cent of the total
number of shares in the Company. i-Mobile has accepted the transfer of ordinary
shares from the shareholders who are promoters and Tawan in the amount of 65 per
cent of the total number of shares, i.e. shares numbered 0000001- 0000070 and
numbered 0045071-1020000 being a total of 975,000 (nine hundred seventy five
thousand) shares.
1.6 i-Mobile agrees to become a shareholder in the Company and to
accept the assignment of rights, duties and liabilities which Tawan has towards
CAT and the Company under the Shareholders Agreement of Tawan Mobile Telecom
Company Limited dated 14 October 1999 in all respects, pursuant to the Agreement
for Assignment of Rights, Duties and Liabilities under the Shareholders
Agreement of Tawan Mobile Telecom Company Limited between CAT, Tawan and
i-Mobile dated 16 October 2000.
1.7 CAT holds shares at 32 per cent of the total number of shares,
i.e. shares numbered 1020001-1500000 being the total of 480,000 (four hundred
eighty thousand) shares. The initial payment was made at 85 per cent of the
value of those shares. i-Mobile agrees to make payment for the remaining value
of those shares to the Company in place of CAT in cash within 5 days from the
date on which i-Mobile accepts the transfer of shares from Tawan according to
Clause 1.5. Hence, CAT needs not make payment for the value of those shares.
<PAGE>
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CLAUSE 2. INCREASE OF CAPITAL
Subject to the stipulations of Clause 5.8, the increase of capital of
the Company shall be made in accordance with the following:
2.1 The registration of increase of capital of the Company both
before and after the increase of capital under Clause 2.3 shall be made as the
Parties deem it appropriate.
2.2 In the capital increase before the increase of capital under
Clause 2.3, the Parties agree to hold the shares newly issued as per the
following proportions:
2.2.1 CAT shall hold the aggregate of 32 per cent of the total
shares of the Company;
2.2.2 i-Mobile shall hold the aggregate of 65 per cent of the
total shares of the Company.
In the capital increase after the increase of capital under
Clause 2.3, the Parties agree to hold the newly issued shares according to their
existing shareholding proportions.
2.3 CAT and i-Mobile agree that the Company shall increase its
registered capital by 935,000,000 Baht (Nine hundred thirty-five million Baht)
thus resulting in the total registered capital of 950,000,000 Baht (Nine hundred
fifty million Baht) subject to the following conditions:
2.3.1 In case that CAT is transformed or converted into a new
juristic entity under the State Enterprise Capital Act B.E. 2542 or other law
within September 30, 2001, CAT and i-Mobile agree that the Company shall
increase its registered capital to 950,000,000 Baht (Nine hundred and fifty
million Baht) within 60 (Sixty) days from the day following the date on which
the new juristic entity is transformed or converted from CAT as stated above and
the Parties shall hold the newly issued in accordance with the following
proportions:
2.3.1.1 CAT: 26% of the total shares of the Company.
2.3.1.2 i-Mobile: 71% of the total shares of the
Company.
2.3.2 In case that CAT is not yet transformed or converted
into a new juristic entity within September 30, 2001 as stipulated in Clause
2.3.1, CAT and i-Mobile agree that the Company shall increase its registered
capital to 950,000,000 Baht (Nine hundred and fifty million Baht) within 60
(Sixty) days as from October 1, 2001 and the Parties agree to hold the new
shares in accordance with the proportions stipulated in Clauses 2.3.1.1 and
2.3.1.2
2.4 In case that CAT is not ready to hold shares issued by
virtue of the increase of capital according to its proportion under Clause 2.3,
i-Mobile agrees to buy the newly issued shares under Clause 2.3 in order to
maintain its proportion of 71% of the total shares of the
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Company and to purchase the whole proportion of newly issued shares of CAT which
equals to 26% of the total shares of the Company. i-Mobile agrees to completely
transfer the whole proportion of newly issued shares of CAT which equals to 26%
of the total shares of the Company to CAT at the par value of Baht 10 (Ten Baht)
per share within 15 (Fifteen) days from the date on which i-Mobile receives a
notice in writing from CAT, provided CAT needs not make payment for those newly
issued shares.
2.5 CAT and i-Mobile agree to exercise their voting right as the
shareholders for the increase of the Company's registered capital according to
Clause 2.3, and to take action according to Clause 2.4.
2.6 When i-Mobile has purchased the shares issued by virtue of the
increase of capital according to Clause 2.4, i-Mobile agrees that both before
and after the date on which i-Mobile transfers the newly issued shares to CAT
according to Clause 2.4, CAT still has rights and duties stipulated under this
Agreement and i-Mobile agrees to cause CAT to receive the dividends stipulated
under Clause 9 according to CAT's shareholding proportion of 26% of the total
shares in the Company in all respects.
2.7 All shareholders, except CAT, shall make payment for such newly
issued shares in cash within 60 (Sixty) days from the date of receipt of a
notice in writing from the Company.
2.8 i-Mobile agrees to make full payment for CAT's newly issued
shares before the increase of capital under Clause 2.3 as well as for CAT's
newly issued shares under Clauses 2.3 and 2.4 in place of CAT in cash within the
period of time for payment thereof as required by the Company. Thus, CAT needs
not make payment for those shares.
The first paragraph shall apply only in the case of the
increase of capital for the purpose of the Marketing Service of the Mobile
Telephone Under the Cellular Digital AMPS 800 Band A System of CAT. The increase
of capital for other purpose shall require prior approval of CAT, and CAT must
pay for the shares newly issued that CAT must pay by itself as follows:
a. Payment equal to 50% of the amount of each call shall be
made within 60 (Sixty) days of the date of receipt of notice in writing from the
Company.
b. Payment of the balance equal to 50% shall be made within
60 (Sixty) days of the due date of payment under Clause 2.8 a without any
interest thereon.
2.9 If i-Mobile does not make payment for the new share issued as a
result of the increase of capital as stipulated in Clause 2.8 in place of CAT
within the period of time for payment thereof required by the Company, i-Mobile
shall make payment therefor and shall pay the interest thereon to CAT at the
rate of 1.25 (One point two five) per cent per month commencing from the due
date of payment until the date on which such payment is made in full. A fraction
of a month shall be treated as one month.
CLAUSE 3. TRANSFER OF SHARES
3.1 The transfer of shares of i-Mobile under this Agreement must
receive prior consent in writing from CAT and the transferee shall enter into an
agreement with the other party under the terms as stipulated in this Agreement.
If any of the Parties would like to sell all or part of its
shares, such party shall first
<PAGE>
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offer those shares to the other party by sending written notice to the other
party specifying the offering price. If the offeree fails to exercise its right
to purchase those shares within 60 (Sixty) days from the date of receipt of such
written notice, the offeror may, offer its shares to a third party who is not a
business competitor of the Company or CAT or CAT Group that provides the service
of mobile telephone under the cellular system, or of the juristic entity
receiving the rights and duties hereunder from CAT or a new juristic entity
transformed or converted from CAT or of a group of the juristic entity receiving
rights and duties hereunder from CAT pursuant to Clause 13.10 or of a group of
juristic entity transformed or converted from CAT that provide the service of
mobile telephone under the cellular system, or of Hutchison Group which provides
the service of mobile telephone under the cellular system, subject to the
following conditions:
(a) the number of shares sold equals to the number of shares
offered to the offeree;
(b) the price per share is not less than the price offered
to the offeree;
(c) the terms and conditions of the offer are not better
than those offered to the offeree.
The restriction on share transfer under the second paragraph
shall not apply to the disposal of shares by either party to its subsidiary or
affiliated company which is not a business competitor of the Company, or the
disposal of shares of CAT to a juristic entity receiving the assignment of
rights and/or duties hereunder from CAT pursuant to Clause 13.10, paragraph one,
and/or a juristic entity transformed or converted from CAT pursuant to Clause
13.10, paragraph two, or a subsidiary company or affiliated company of CAT or a
subsidiary company or affiliate company of the juristic entity receiving the
assignment of rights and/or duties hereunder from CAT pursuant to Clause 13.10,
paragraph one and/or the juristic entity transformed or converted from CAT
pursuant to Clause 13.10 paragraph two, or a foreign company which is a
strategic partner of CAT which is not a business competitor of the Company or a
business competitor of Hutchison Group that provides the telecommunication
service under the cellular system.
The transfer of shares by i-Mobile under the second and third
paragraph does not require the prior consent of CAT, provided that the
transferee must enter into an agreement with other parties under the same terms
and conditions as stipulated herein.
The term "business competitor of the Company" means a person or
juristic person providing telecommunications service under the cellular system
in Thailand and a person undertaking marketing service of the mobile telephone
under the cellular system in Thailand including an affiliated company of such
person or juristic person, and a foreign company which is a strategic partner of
CAT in the telecommunications business that is the business of mobile telephone
service under the cellular system in Thailand.
The term "subsidiary company" means
(1) A company in which CAT or the juristic entity receiving the
transfer of rights and/or duties hereunder from CAT according to Clause 13.10,
paragraph one, or the juristic entity transformed or converted from CAT
according to Clause 13.10, paragraph two or i-Mobile
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holds shares in excess of 50 per cent of its total shares.
(2) A company in which the company under (1) holds shares in excess
of 50 per cent of its total shares.
(3) A company of which the shares are held in respective order
beginning from the shareholding by the company under (2) in the company of which
the shares are being held by it, provided that the shareholding in such company
in each order is in excess of 50 per cent of the total shares of the company of
which shares are so held.
(4) The company of which the shares are held by either CAT or the
juristic entity receiving the transfer of rights and/or duties hereunder from
CAT according to Clause 13.10, paragraph one or i-Mobile, or the juristic entity
transformed or converted from CAT according to Clause 13.10, paragraph two, or
the company under (1) (2) or (3) in the aggregate more than 50 per cent of the
total shares of the company of which the shares are so held.
The term "affiliated company" means a company that has absolute power
to control or direct the policies of related companies, or a company in which
the related company has absolute power to control or direct its policies, in
either case whether by the holding of voting securities, by contract or
otherwise.
The rights and duties of CAT which are not the same as those of other
shareholders under the conditions of this Agreement shall not be transferred to
the transferee of CAT's shares, except for the transfer of shares to the
juristic entity receiving the transfer of rights and/or duties hereunder from
CAT according to Clause 13.10, paragraph one and/or to the juristic entity
transformed or converted from CAT according to Clause 13.10, paragraph two, or
to a subsidiary or affiliated company of CAT, or the juristic entity receiving
the transfer of rights and/or duties hereunder from CAT, or the juristic entity
transformed or converted from CAT as stated above.
3.2 i-Mobile agrees to give right to CAT to swap the shares which
CAT holds in the Company with the shares of i-Mobile or BFKT (Thailand) Ltd.,
provided that those shares of i-Mobile or BFKT (Thailand) Ltd. shall have the
value equivalent to the value of the shares which CAT holds in the Company.
3.3 i-Mobile agrees to cause the Hutchison Telecommunications
Investment Limited to maintain its shareholding proportion of at least 49% of
the total number of shares in i-Mobile for a period of 3 (Three) years from the
date on which i-Mobile accepts the transfer of 65% of the total number of shares
in the Company or until the date on which the Company is listed on the Stock
Exchange in case that the Company is listed on the Stock Exchange prior to the
expiry of the aforesaid 3-year period, and of at least 35% of the total number
of shares in i-Mobile for a period of 2 (Two) years following the expiry of such
3-year period as from the date on which i-Mobile accepts the transfer of 65% of
the total number of shares in the Company or until the date on which the Company
is listed on the Stock Exchange in case that the Company is listed on the Stock
Exchange prior to the expiry of such 2-year period.
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CLAUSE 4. LISTING OF THE COMPANY ON THE STOCK EXCHANGE
The Parties agree that if any company is to be listed on the Stock
Exchange, the Parties shall cause the Company to be listed on the Stock
Exchange. In case that other company is to be listed on the Stock Exchange, the
Parties shall cause the Company to be part of the business listed on the Stock
Exchange.
When the Company is listed on the Stock Exchange, i-Mobile must maintain
its shareholding proportion in the Company at not less than 20% of the total
number of shares in the Company and CAT must maintain its shareholding
proportion in the Company at not less than 7.32% of the total number of shares
in the Company for a period of 2 years from the date on which the Company is
listed on the Stock Exchange.
If i-Mobile wishes to decrease its shareholding proportion to less than
20%, or CAT wishes to decrease its shareholding proportion to less than 7.32% as
stated above, i-Mobile or CAT must first offer those shares together with the
offering price to the other party (right of first refusal) by giving written
notice thereof to the other party as stipulated in Clause 3.1.
CLAUSE 5. MEETING OF SHAREHOLDERS
5.1 The Company's Board of Directors shall hold an Ordinary
Shareholders' Meeting within 4 (Four) months from the fiscal year end of the
Company. The agenda shall at lease include the following:
5.1.1 The appointment of the Board of Directors of the Company
pursuant to Clause 6;
5.1.2 The appointment of an auditor; and
5.1.3 Approval of the audited balance sheet and profit and
loss accounts of the Company.
5.2 Each shareholder shall have 1 (One) vote for each of the shares
he holds. The shareholders may present at the General Meeting of Shareholders
either in person or by proxy. The instrument appointing such proxy shall be made
in writing.
5.3 Notices for every General Meeting of Shareholders shall be made
in writing and sent to each of the shareholders, listed in the Shareholders
Register, by registered mail with return receipt requested, at least 14
(Fourteen) days in advance. Such notice shall specify the place, date, time,
agenda and the status of the Company at such time.
In case of necessity or emergency, the Company may send such
notices to shareholders, as mentioned in the preceding paragraph by registered
mail with return receipt requested, at least 7 (Seven) days in advance.
5.4 The quorum of the General Meeting of Shareholders shall consist
of shareholders
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or proxies holding not less than one-half of the total shares of the Company
present in such meeting.
5.5 The Chairman of the Board of Directors of the Company shall
preside at every General Meeting of Shareholders. If the Chairman of the Board
of Directors is not present, the Vice Chairman of the Board of Directors shall
preside at that meeting. If the Chairman and the Vice Chairman are not present,
the shareholders present in that meeting will elect a Director to be the
chairman of the meeting.
5.6 Ordinary resolutions of the General Meeting of Shareholders
shall require the votes not less than one-half of the total number of shares of
all shareholders present at the meeting, except for the following matters which
shall require the votes not less than three-fourths of the total shares of the
Company:
5.6.1 Subject to Clause 9, the approval for the distribution
of dividends or appropriation to a reserve fund.
5.6.2 The engagement in any business not related or incidental
to the provision of telecommunications services.
5.7 The Board of Directors of the Company may hold an Extraordinary
Shareholders' Meeting whenever the Board of Directors finds it necessary or upon
request made by any party/parties or shareholder/shareholders who singly or
collectively hold(s) not less than one-fifth of the total shares.
5.8 The undertaking of the following matters shall be made only by
special resolution of the General Meeting of Shareholders and shall first be
approved by CAT:
5.8.1 Amendment of the Memorandum or Articles of Association
other than the amendment pursuant to the resolution of the Cabinet;
5.8.2 Change in the shareholding proportion of i-Mobile in the
Company except for the cases under Clause 3.1, paragraph two and paragraph
three;
5.8.3 Transfer of all or part of the shares of i-Mobile in the
Company except for the case under Clause 3.1, paragraph two and paragraph three;
5.8.4 Increase or reduction of the registered capital of the
Company;
5.8.5 Dissolution of the Company;
5.8.6 Amalgamation;
5.8.7 Change of the Company's status to be a public company;
and
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CLAUSE 6. THE BOARD OF DIRECTORS
6.1 The Board of Directors of the Company shall consist of
the Directors nominated by the respective Parties as follows:
6.1.1 CAT to nominate:
1 Vice Chairman of the Board
2 Directors
6.1.2 i-Mobile to nominate:
1 Chairman of the Board
4 Directors
1 Managing Director
Total 9 Directors
Except as provided for in Clauses 2.3, 2.4, 2.5 and 2.6, if CAT
or i-Mobile sells or disposes of or transfers its shares in the Company to the
other party or a third person or otherwise which causes the shareholding
proportion of CAT or i-Mobile in the Company to decrease, or if CAT or i-Mobile
purchases or accepts the disposal or transfer of shares held by the other party
in the Company from the other party, or if CAT or i-Mobile purchases or accepts
the disposal or transfer of shares held by a third person in the Company from
such third person which causes the shareholding proportion of CAT or i-Mobile to
increase, the right to nominate persons for the appointment as directors of the
Company of the party whose shareholding proportion in the Company is increased
or decreased shall be amended such that the said party shall have the right to
nominate 1 director of the Company for each shareholding proportion of 10 per
cent of the total shares in the Company. For the purpose of this Clause, the
shareholding between 5 per cent and 10 per cent of the total shares of the
Company shall be treated as each shareholding proportion of 10 per cent of the
total shares in the Company.
Irrespective of the shareholding proportion of CAT in the
Company, CAT shall always have the right to nominate at least 1 director of the
Company.
In case of vacancy in any position in the Board of Directors
of the Company, a new Director shall be appointed through the nomination of the
party being entitled to nominate the Director in such vacant position.
Each Party shall always vote at the shareholders meeting in
support of the resolution for the appointment or change of the directors
nominated by the other Party as mentioned in the first paragraph
The Parties shall ensure that the Directors nominated by each
of them shall vote or act in accordance with the terms and conditions of this
Agreement including the resolutions of the Board of Directors or the resolutions
of the general meeting of shareholders which have been duly adopted according to
the terms and conditions hereof.
6.2 The Board of Directors of the Company shall have the following
duties:
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6.2.1 Determining the business direction and strategy of the
Company;
6.2.2 Approving the business plan of the Company;
6.2.3 Determining the financial and investment plans;
6.2.4 Controlling the operation of the Company in order to be
in compliance with the business plan and the budgets;
6.2.5 Issuing regulations and fixing the duties, authority and
remuneration package of the Managing Director of the Company and other executive
officers;
6.2.6 Approving the audited balance sheet and profit and loss
accounts of the Company and proposing the same to the meeting of shareholders
for approval;
6.2.7 Supervising the management and administration of
business of the Company for the best interests of the Company in accordance with
the Articles of Association of the Company and the resolution(s) of the General
Meeting of Shareholders;
6.2.8 Entrusting the Managing Director with duties and
responsibilities as it deems appropriate;
6.2.9 Approving the guidelines for determining the
remuneration package of staff (other than the executive officers referred to in
Clause 6.2.5) and approving the bonus of all staff (including executive
officers);
6.2.10 Fixing the policy and rate(s) of service fee to make it
consistent with the market condition.
The Parties agree that the Directors appointed through the
nomination of each respective Parties shall be entitled to engage in any
business of the same nature as of the business of the Company, and subsequent to
the statutory meeting, the General Meeting of Shareholders shall resolve to
consent to such engagement pursuant to Section 1168 of the Civil and Commercial
Code, provided always that all the Directors still have the duties to act for
the best interests of the Company.
6.3 The Vice Chairman of the Board and Directors appointed through
the nomination of CAT under Clause 6.1.1, shall be CAT personnel.
6.4 A Director need not be shareholder of the Company.
6.5 One of the Directors nominated by CAT and one of the Directors
nominated by i-Mobile whom are assigned by the Company's Board of Directors
shall be authorized to enter into any juristic act and to sign any document to
bind the Company.
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6.6 At the first Ordinary Shareholders' Meeting in each year,
one-third of the Directors, or, if their number is not a multiple of three, then
the number nearest to one-third must retire from office.
The Directors to retire during the first and second years
subsequent to the execution of this Agreement shall be drawn by lots. In every
subsequent year, the Directors who have been longest in office shall retire.
The retiring Directors are eligible for re-election.
6.7 Quorum of the Meeting of the Board of Directors of the Company
shall be the presence, whether in person or by proxy, of more than one-half of
the total number of directors. The Chairman of the Board shall be the Chairman
of the meeting, or if the Chairman of the Board is not present, the Vice
Chairman of the Board shall then be the Chairman of the meeting. If the Chairman
of the Board and the Vice Chairman of the Board are not present, the Directors
present may choose one of their members to be chairman of such meeting.
6.8 Notwithstanding the number of Directors or their proxies who are
present at any Meeting of the Board of Directors and thereby constitute a
quorum, resolutions of the Meeting of the Board of Directors in the following
matters shall require the votes not less than one-half of the total number of
directors present at the meeting and one of which shall always be the vote of
the Director nominated by CAT:
6.8.1 Any policy other than the principal objective(s) of the
Company which bears a risk;
6.8.2 Change of any major policy which has generally been
implemented in the operations of the Company;
6.8.3 Subject to Clause 9, payment of interim dividends;
6.8.4 Amendment of the Memorandum or Articles of Association
of the Company;
6.8.5 Increase or decrease in registered capital;
6.8.6 Dissolution or amalgamation of the Company;
6.8.7 Sale, mortgage, creation of any encumbrance or disposal
of any asset of the Company with a value in excess of Baht 500 million (Five
hundred million Baht);
6.8.8 The entering into any commitment for a period of more
than 10 (Ten) years;
6.8.9 Change of the Company's status to be a public company;
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6.8.10 Planning of annual administrative plan;
6.8.11 The entering into a borrowing agreement or lending of
fund to any person or giving guarantee in excess of Baht 500 million (Five
hundred million Baht);
6.8.12 The institution of composition process by arbitration or
judicial proceedings;
6.8.13 The creation of encumbrances over the Company's rights
and assets to a third party except as permitted according to the agreement made
with CAT;
6.8.14 Transfer of the Company's assets to a third party other
than in the normal course of business of the Company; and
6.8.15 Operation of the Company's business outside the main
objectives of this Agreement.
In the case that the Annual Budget for any year is not
approved by the Board of Directors, then the Annual Budget of the previous year
shall apply for such year until the Board of Directors approves the Annual
Budget for such year.
6.9 Any resolution of the Meeting of the Board of Directors of the
Company other than those stipulated in Clause 6.8 shall require the votes not
less than one-half of the total number of directors present at the meeting.
6.10 At any of such meeting, the Chairman of the Board and each
Director shall have 1 vote each.
6.11 Each Director is entitled to appoint a proxy to attend and vote
on his behalf, at any meeting, provided each appointment shall be made in
writing and shall be presented to the chairman of any of the Meeting of the
Board of Directors at or before the beginning of such meeting.
6.12 The Meeting of the Board of Directors shall be held at least
once every 3 (Three) months.
6.13 Notices to the Meeting of the Board of Directors shall be given
to the Directors not less than 7 (Seven) days in advance. The notice requirement
may be waived if all the Directors agree.
6.14 Any action required or permitted to be taken at any Board of
Directors meeting may be taken without convening a meeting if a resolution in
writing, setting forth the action to be so taken, is signed by all the Directors
and shall take effect as of the date of the signature of the last Director who
signs. Any such resolution may consist of several documents in like form,
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each signed by one or more Directors. The duly signed resolution shall be
delivered to the Chairman and placed in the minutes book of the Company.
6.15 A Director may attend the meeting by way of telephone or video
conference. In such case, no proxy is allowed. The quorum and passing of
resolution of the meeting in which one or more Director(s) participate(s) by way
of telephone conference shall be the same as those specified in Clauses 6.7, 6.8
and 6.9.
CLAUSE 7. MANAGING DIRECTOR
7.1 The Managing Director is authorized to manage the Company
businesses, in accordance with the policy laid down by the Board of Directors of
the Company, in order to achieve the maximum benefit to the Company. The
Managing Director shall be responsible to report the result of the operation to
the Board of Directors of the Company including to suggest matters which will be
beneficial to the Company and to supervise the performance of the Company's
employees as he deems it appropriate.
7.2 The appointment, transfer and change of the Managing Director or
the appointment of a substitute to replace the Managing Director who has
resigned, been disqualified or died, shall be in accordance with the approval
given by the General Meeting of Shareholders.
7.3 The Managing Director is required to propose, to the
consideration of the Board of Directors, any matters which are beyond the powers
and duties entrusted to him by the Board of Directors.
CLAUSE 8. RECRUITMENT AND APPOINTMENT OF THE MANAGEMENT
8.1 The Board of Directors shall recruit and appoint, from persons
suggested by the Managing Director, members of the Management to operate the
businesses of the Company in accordance with the policy of the Board of
Directors.
8.2 The Management shall at least report the following matters to
the Board of Directors:
8.2.1 Matters to be reported monthly:
8.2.1.1 Result of the monthly operations;
8.2.1.2 Report on financial status;
8.2.1.3 Report on other matters as required by the
Board of Directors.
8.2.2 Matters to be reported annually:
8.2.2.1 Annual Budget;
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8.2.2.2 Annual Operational Plan;
8.2.2.3 3 (Three) years and 5 (Five) years Business
Plan;
8.2.2.4 Report on other matters as required by the
Board of Directors.
CLAUSE 9. PAYMENT OF DIVIDEND
The Company shall, in accordance with the resolutions of the Board of
Directors and the General Meeting of Shareholders, pay dividend from the net
profit derived in that fiscal year or of the then accumulated profit available
for distribution, subject to the appropriation of prudent reserves for the
forthcoming year as the Board shall think necessary.
CLAUSE 10. ACCOUNTS AND AUDITOR
10.1 The Company shall adopt the generally accepted accounting
principles in Thailand.
10.2 The fiscal year of the Company shall commence on January 1 and
end on December 31 of the same year.
10.3 The auditors shall be appointed from the persons in
PricewaterhouseCoopers or other international auditing office as shall be
approved by the shareholders meeting.
CLAUSE 11. AMENDMENT
11.1 Any addition to, modification, adjustment or amendment of this
Agreement, other than those made by virtue of the Cabinet resolution, shall, by
an unanimous resolution of the Parties hereto, be made in writing and signed by
the Parties in the same manner as required in the signing of this Agreement.
In case where there is a Cabinet resolution during the term of
this Agreement which makes it necessary to effect any addition to, modification,
adjustment or amendment of this Agreement, the Parties agree to effect the same
to make this Agreement consistent with such Cabinet resolution.
11.2 If it appears at any time that any provision of this Agreement
is held to be invalid, illegal or unenforceable in any respect, such provision
shall be fully several and this Agreement shall be construed and enforced as if
such invalid, illegal or unenforceable provision never comprised a part hereof.
The Parties agree to effect any of the acts as stipulated in Clause 11.1 to
reach a provision(s) which is/are valid, legal and enforceable in lieu of such
invalid, illegal or unenforceable provisions and which is attainable to the
business objective or objective as much as possible.
<PAGE>
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CLAUSE 12. OPERATIONS OF THE COMPANY
To enable CAT to participate in the operation and to orientate itself
to the business management of a private company, the Parties agree that, CAT may
designate its personal to join in the administrative, managerial and service
operational levels of the Company, and the Company shall, throughout the term of
this Agreement bear all costs relating to expenses, salary, wage, overtime
payment, bonus and other welfare and other monies for such CAT personnel. CAT
and the Company shall jointly fix the direction and duration of service,
position, number of staffs and other conditions as CAT and the Company deem it
appropriate.
CLAUSE 13. MISCELLANEOUS
13.1 In the event of a conflict or inconsistency between the terms of
this Agreement and the Articles of Association of the Company, the terms of this
Agreement shall prevail, and the Company shall amend the stipulations of the
Articles of Association to make them consistent with the stipulations of this
Agreement.
13.2 Force majeure shall be interpreted in accordance with the Civil
and Commercial Code.
13.3 All agreements, stipulations or writings made or entered into
prior to the execution of this Agreement and which are contradictory to this
Agreement, shall have no binding effect upon the Parties. The Parties shall be
bound by this Agreement and any agreement to be subsequently entered into after
the date hereof.
13.4 The Parties shall conclude the Memorandum and Articles of
Association of the Company in line with the stipulations of this Agreement.
13.5 Subject to Clause 6.8, i-Mobile shall be responsible to arrange
loans, guarantee such loans and/or provide the guarantor thereof to enable the
Company to operate under its objectives and in accordance with the obligations
under this Agreement, so as to achieve the maximum benefit to the Company.
13.6 i-Mobile shall not assign its rights and obligations under this
Agreement to any third party unless with prior written consent of CAT.
13.7 The operation of business under this Agreement shall not render
any parties holding shares alongside with CAT or any employees of such parties
to become CAT personnel.
13.8 This Agreement shall be construed in accordance with the law of
Thailand. The interpretation of any question arisen out of this Agreement or any
documents relating to the same, shall be made in accordance with the law of
Thailand.
13.9 In case of any dispute, conflict or claim arising out of or in
connection with this Agreement including the breach, termination or validity of
this Agreement, the Parties wish to have the same settled by arbitration in
accordance with the UNCITRAL Arbitration Rules applicable at the time of
submission of the dispute to arbitration or other arbitration rules as may
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be agreed by both parties.
The arbitral tribunal shall consist of three arbitrators, one
of whom appointed by CAT and one by i-Mobile. The two arbitrators shall then
jointly appoint the third arbitrator to be the chairman of the arbitral
tribunal. If the two arbitrators cannot reach an agreement, the Director of the
Arbitration Office, Ministry of Justice shall then appoint the third arbitrator.
The arbitration shall be conducted in Bangkok Metropolis, Thailand in the Thai
language.
13.10 CAT reserves the right to assign its rights and/or duties
hereunder to other juristic entity established under the Act in order to take
over the telecommunication business of CAT, whereupon it shall be deemed that
i-Mobile has unconditionally agreed and consented to such assignment. CAT shall
give a notice of such assignment of rights and/or duties to i-Mobile in writing.
In case of the change of status or conversion of CAT into a
new juristic entity, i-Mobile shall agree and consent to the assignment of CAT's
rights and/or duties hereunder to such new juristic entity for the purpose of
the continuation of relevant businesses hereunder.
i-Mobile agrees and consents to waive its right to make any
objection, protest or claim as a result of the assignment of rights and/or
duties under the first and second paragraph, and agrees to give its consent to
the assignment of rights and/or duties hereunder to the new juristic entity
under the first and second paragraph in all respects.
CLAUSE 14. NOTICES TO SHAREHOLDERS
14.1 All notices relating to this Agreement shall be made in writing
and sent to each respective Parties by registered mail with return receipt
requested, at the addresses stipulated in Clause 14.2.
14.2 Addresses of each of the Parties on the date hereof are:
14.2.1 CAT with its head office located at No. 99 Mu 3, Chaeng
Watthana Road, Kwaeng Thung Song Hong, Khet Laksi, Bangkok Metropolis 10002.
14.2.2 i-Mobile with its head office located at No. 990
22nd-25th Floors, Rama IV Road, Khwaeng Silom, Khet Bangrak, Bangkok Metropolis
10500.
14.3 Any party intending to change its address from that stipulated
in Clause 14.2, shall be required to notify the other party not less than 3
(Three) days prior to such change.
CLAUSE 15. PERFORMANCE SECURITY
15.1 Within 7 days after the date on which i-Mobile has duly accepted
the transfer of shares and the share certificates of the Company as provided in
Clause 16, to guarantee the performance under this Agreement, i-Mobile shall
provide a Letter of Guarantee in the amount
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of Baht 487,500 (Four hundred eighty seven thousand five hundred Baht) to CAT as
the performance security under this Agreement.
15.2 If i-Mobile is in breach of any stipulation of this Agreement
and fails to rectify the same within 60 (Sixty) days from the date of being
notified by CAT, i-Mobile consents for CAT to confiscate the security or to
immediately claim the bank issuing the Letter of Guarantee for payment of such
amount guaranteed.
15.3 i-Mobile shall be able to recover the security provided under
this Agreement upon the release of its obligations hereunder.
CLAUSE 16. EFFECTIVE DATE
This Agreement shall be effective as from the date on which i-Mobile has
duly accepted the transfer of shares from Tawan in accordance with the Agreement
for Assignment of Rights, Duties and Liabilities under the Shareholders
Agreement of Tawan Mobile Telecom Company Limited between CAT, Tawan and
i-Mobile dated.................
CLAUSE 17. TERMINATION RIGHT
i-Mobile agrees to cause Tawan to duly and completely transfer its
shares of approximately 65% to i-Mobile within 45 (forty-five) days from the day
following the execution date hereof. If Tawan fails to transfer those shares to
i-Mobile and/or i-Mobile refuses to accept the transfer of those shares from
Tawan in full and complete order with the prescribed time, i-Mobile agrees that
CAT may immediately terminate this Agreement without prior notice.
CLAUSE 18. TERMINATION OF THE AGREEMENT
If any party is no longer a shareholder of the Company, this Agreement
shall become unenforceable only in respect of such party but shall remain
enforceable to the party that still holds shares in the Company; except that in
case of the transfer of shares of CAT to a juristic entity receiving the rights
and/or duties hereunder from CAT according to Clause 13.10, paragraph one,
and/or the juristic entity transformed or converted from CAT according to Clause
13.10, paragraph two, or a subsidiary company or affiliated company of CAT or of
the juristic entity receiving the transfer of rights and/or duties hereunder
from CAT according to Clause 13.10, paragraph one and/or of the juristic entity
transformed or converted from CAT according to Clause 13.10, paragraph two, the
Parties agree that this Agreement shall remain enforceable in respect of the
transferee of shares from CAT.
The terms "subsidiary company" and "affiliated company" under the first
paragraph shall have the meanings as ascribed in Clause 3.1.
CLAUSE 19. ATTACHMENTS
The following documents are attached hereto and shall be deemed as part
hereof:
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19.1 The Certification Document (Affidavit) of i-Mobile Holdings Co.,
Ltd. issued by the Bangkok Metropolis Partnerships and Companies Registration
Office.
Any terms in the attachments conflicts to this agreement, the term in
this agreement shall be prevail.
This Agreement is made in duplicate with identical content. The Parties
have thoroughly read and understood the same and, therefore, set their hands
together with their seal (if any) affixed in presence of witnesses, each holding
one copy.
The Communications Authority of Thailand i-Mobile Holdings Company Limited
Signed /s/ Thirapong Suttinon Signed /s/ Stephen Wing Fai Sun
------------------------ --------------------------
(Mr. Thirapong Suttinon) (Mr. Stephen Wing Fai Sun)
Signed /s/ Ormsin Chevapruk Witness Signed /s/ Tim Tak Timothy Wong Witness
--------------------- ------------------------
(Mr. Ormsin Chevapruk) (Mr. Tim Tak Timothy Wong)
Signed /s/ Wattanachai Wattanasonthi Witness Signed /s/ Wisit Kanjanopas Witness
----------------------------- --------------------
(Mr. Wattanachai Wattanasonthi) (Mr. Wisit Kanjanopas)
<PAGE>
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Attachment 15.3
[GRAPHICS APPEARS HERE]
CDMA NETWORK TECHNICAL PROPOSAL
[***]
<PAGE>
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Attachment 15.4
Annex 1
Province District Priority
------------- ---------------- ----------------
Pathumthanee Muang 1
Lamlukka 1
Tanyaburi 1
Klongluang 1
Sarmkok 2
Lardlumkaew 2
Nongsua 3
Samutprakarn Muang 1
Prapradaeng 1
Bangplee 1
Bangbor 2
Phra Samutjedee 1
King Amphur
Bangsaothong 2
Nonthaburi Muang 1
Pakkred 1
Bangbuathong 1
Bangkruay 2
Bangyai 2
Sainoi 2
Petchaburi Muang 1
Thayang 2
Cha-am 1
Bann Laem 3
Bann Lard 3
Khao Yoy 2
Kangkrajan 3
Hard Chao Samran 1
Kanjanaburi Muang 1
Thamuang 1
Thamaka 1
Phanomthuan 2
Laokwan 3
Borploy 2
Saiyok 2
Thongpapoom 2
Sangklaburi 2
Srisawas 2
Samutsakorn Muang 1
Krathumban 1
Banpaew 2
Lopburi Muang 1
Bann Mee 1
Koksamrong 2
Chaibadan 1
Thawung 2
Pattananikom 2
Nongmuang 3
Thaluang 3
Sraboth 3
<PAGE>
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Annex 1
Province District Priority
------------- ---------------- ----------------
Ayudhaya Muang 1
Bangpa-in 1
Sena 1
Wangnoi 2
Thanrua 2
Bangsrai 2
Pakhai 2
Uthai 2
Bangpahan 3
Lardbualuang 2
Bangban 3
Nakornluang 2
Phashee 2
Maharaj 3
Bangsai 3
Bann Prak 3
Srakaew Muang 1
Watthana-nakorn 2
Aranyaprathes 1
Wangnamyen 2
Khao Chakan 3
Thapraya 3
Samutsongkram Muang 1
Amphawa 2
Bangkhonthee 3
Prachuabkirikhan Muang 1
Thabsakae 2
Bangsaphan 2
Pranburi 1
Hua Hin 1
Sarm Roi Yod 3
Kuiburi 3
Bangsaphannoi 3
Singhburi Muang 1
Inburi 2
Bangrachan 3
Kaibangrachan 3
Phromburi 3
Thachang 3
Saraburi Muang 1
Kangkoi 1
Nongkhae 1
Phraphuttabat 1
Muaklek 1
Bann Mor 2
Wiharndaeng 3
Saohai 3
Wangmuang 3
Nongsang 3
Nongdon 3
Kornphud 3
<PAGE>
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Annex 1
Province District Priority
------------- ---------------- ----------------
Trad Muang 1
Khao Saming 2
Laem ngob 2
Klongyai 2
Bor Rai 3
Kor Chang 3
Chonburi Muang 1
Sriracha 1
Panasnikom 1
Sattahip 1
Banglamung 1
Bann Bung 1
Phanthong 3
Bor Thong 3
Nongyai 3
Pattaya 1
Laemchabang 1
Borwin 1
Chanthaburi Muang 1
Thamai 2
Soidao 3
Klung 1
Pongnamron 3
Laem Singh 3
Bann Nai Arm 2
Makham 3
Chachoengsao Muang 1
Bangpakong 1
Bangnamprew 2
Phanomsarakam 1
Sanamchaikhet 3
Bangkla 1
Bann Po 3
Plangyao 3
Rajasarn 3
Ratchaburi Muang 1
Bann Pong 1
Photharam 1
Damnensaduak 1
Pak Thor 2
Jombung 2
Bangphae 3
Suanpeung 3
Nakornpathom Muang 1
Sarmpran 1
Kampangsaen 2
Nakornchaisri 1
Banglen 2
Don Toom 3
Nakornnayok Muang 1
Bann Na 2
Ongkarak 3
Pakplee 2
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Annex 1
Province District Priority
------------- ---------------- ----------------
Angthong Muang 1
Wiseschaicharn 1
Po Thong 3
Sawangha 3
Chaiyo 3
Suphanburi Muang 1
Songpheenong 1
Uthong 1
Bangplama 2
Derm Bang- Nang
Buad 1
Sriprachan 2
Dan Chang 2
Sarm Chuk 2
Nongyachai 3
Donjedee 3
Rayong Muang 1
Klang 1
Bann Chang 1
Bann Kai 2
Pattananikom 3
Wangchan 3
Kor Samed 1
Pluakdaeng 1
Mabtaphud 1
Prachinburi Muang 1
Kabinburi 1
Prachantakarm 2
Srimahapo 2
Nadee 2
Bann Srang 2