Exhibit 4.1
AGREEMENT FOR THE SALE AND
PURCHASE OF THE SELLER'S
ASSETS RELATING TO TELKOM MOBILE
NO: K. TEL. /HK. 850/UTA - 00/2002
By and Between
PERUSAHAAN PERSEROAN (PERSERO)
PT TELEKOMUNIKASI INDONESIA TBK
as Seller
And
PT TELEKOMUNIKASI SELULAR
as Purchaser
Dated as of 3 April 2002
THIS AGREEMENT is made on 3 April 2002
BETWEEN:
(A) Perusahaan Perseroan (Persero) PT Telekomunikasi Indonesia Tbk, whose
Articles of Association have been published in the State Gazette of the
Republic of Indonesia Number 5, dated 7 January 1992, Supplement of the
State Gazette of the Republic of Indonesia Number 210, as amended
several times lastly have been published in the State Gazette of the
Republic of Indonesia Number 92, dated 17 November 2000, Supplement of
the State Gazette of the Republic of Indonesia Number 336, domiciled at
▇▇. ▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, in this legal action is legally
represented by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, title President Director, in this
Agreement is stated as the "Seller"; and
(B) PT Telekomunikasi Selular, whose Articles of Association have been
published in the State Gazette of the Republic of Indonesia Number 94,
dated 24 November 1995, Supplement of the State Gazette of the Republic
of Indonesia Number 9719, as amended several times lastly have been
published in the State Gazette of the Republic of Indonesia Number 73,
dated 10 September 1996, Supplement of the State Gazette of the
Republic of Indonesia Number 7788, domiciled at Graha Surya Internusa
▇▇▇▇▇ ▇▇, ▇▇. H.R. Rasuna Said Kav. X-0, Jakarta 12950, in this legal
action is legally represented by Mulia ▇. ▇▇▇▇▇▇▇▇, title President
Director, in this Agreement is stated as the "Purchaser".
WHEREAS:
(a) On 3 January 2002 the parties entered into the Cooperation Agreement in
relation to the DCS 1800 Operational and Frequency Licenses of the
Seller.
(b) In accordance with that Cooperation Agreement, the parties agreed to
sign an agreement for the sale and purchase of the Seller's assets
relating to and the transfer of the employees of Telkom Mobile.
THE PARTIES AGREE as follows:
1. INTERPRETATION
1.1 In this Agreement:
1
"PURCHASED ASSETS" means all the items referred to in clause 2.1;
"EXCLUDED ASSETS" means, all the items referred to in clause 2.2;
"GOVERNMENTAL ENTITY" means a court, arbitral tribunal, administrative
agency or commission or other governmental or regulatory authority or
agency of the central government or provincial or local government in
the Republic of Indonesia or elsewhere in the world;
"RECORDS" means the Seller's books and records maintained as books and
records of Telkom Mobile (including, without limitation, any bought and
sold ledgers, purchase and sales day books, purchase and sales
invoices) in the possession of the Seller as of the Effective Time,
provided that the records shall not include any of the foregoing
relating to the Excluded Assets or the Tax Records, and further
provided that the Purchaser shall be entitled to copies of the Tax
Records relating to the conduct of Telkom Mobile, but only if and to
the extent that such Tax Records are relevant to the determination of
Taxes for Telkom Mobile for a period ending after the Effective Time;
"TAX RECORDS" means all corporate records, and financial records and
files, and books and records of the Seller relating to Taxes for all
periods prior to the Effective Time;
"TELECOMMUNICATIONS FACILITIES" means all telecommunications
facilities, furnishings, computers, equipment, inventory stock and
systems designated as assets of Telkom Mobile as set out in Schedule 5;
"PURCHASE PRICE" shall have the meaning set forth in clause 4.1;
"BUSINESS DAY" means a day other than a Saturday or Sunday or public
holiday in the Republic of Indonesia;
"SELLER WARRANTIES" shall have the meaning set forth in clause 7.4; and
2
"ASSET WARRANTY" means a representation and warranty contained in Part
B of Schedule 1 and "ASSET WARRANTIES" means all such representations
and warranties;
"SIGNING WARRANTY" means a representation and warranty contained in
Part A of Schedule 1 and "SIGNING WARRANTIES" means all such
representations and warranties;
"CLOSING WARRANTIES" shall have the meaning set forth in clause 7.3;
"PURCHASER WARRANTY" means a statement contained in Schedule 2 and
"PURCHASER WARRANTIES" means all those statements;
"INTELLECTUAL PROPERTY" means:
(i) patents, trade marks, service marks, registered designs,
applications and rights to apply for any of those rights,
trade, business and company names, internet domain names and
e-mail addresses, unregistered trade marks and service marks,
copyrights, database rights, knowhow, rights in designs and
inventions;
(ii) rights under licences, consents, orders, statutes or otherwise
in relation to a right in paragraph (i);
(iii) rights of the same or similar effect or nature as or to those
in paragraphs (i) and (ii) which now or in the future may
subsist; and
(iv) the right to ▇▇▇ for past infringements of any of the
foregoing rights;
"CONTRACTS" means all the contracts set out in Schedule 6, and
"CONTRACT" means any one of the Contracts;
"EXCLUDED CONTRACTS" means all contracts of the Seller not being the
Contracts;
"SELLER DISCLOSURE SCHEDULES" shall have the meaning set forth in
clause 7.4;
3
"ASSET DISCLOSURE SCHEDULE" shall have the meaning set forth in clause
7.2;
"SIGNING DISCLOSURE SCHEDULE" shall have the meaning set forth in
clause 7.1;
"CLOSING DISCLOSURE SCHEDULE" shall have the meaning set forth in
clause 7.3;
"PURCHASER DISCLOSURE SCHEDULE" shall have the meaning set forth in
clause 9.1;
"TAX RETURN" means any return, declaration, report, claim for refund or
information return or statement relating to Taxes, including any such
document prepared on a consolidated, combined or unitary basis and also
including any schedule or attachment thereto, and including any
amendment thereof;
"TAX" OR "TAXES" means all taxes, charges, fees, duties, levies,
penalties or other assessments imposed by any Governmental Entity and
shall include interest or penalties thereon;
"EMPLOYEES" means all employees of the Seller listed in Schedule 4;
"ENCUMBRANCE" means a mortgage, hak tanggungan (hipotek), ▇▇▇ ▇▇▇▇▇,
hak jaminan fidusia, charge, pledge, lien, option, restriction, right
of first refusal, right of pre-emption, third-party right or interest,
other encumbrance or security interest of any kind, or another type of
preferential arrangement (including, without limitation, a title
transfer or retention arrangement) having similar effect;
"LIENS" shall mean any pledge, mortgage, charge, claim, title,
imperfection, defect or objection, security interest, conditional or
instalment sales agreement, encumbrance, easement, encroachment, third
party right or restriction, of any kind, whether incurred or assumed by
the Seller;
"PERMITTED LIENS" means (i) Liens for current taxes not yet due or
taxes being contested in good faith, (ii) mechanics', materialmen's
warehousemen's, contractors', workmens', repairmens', carriers and
similar
4
Liens attaching by operation of law, incurred in the ordinary course of
business and securing payments not delinquent or payments which are
being contested in good faith, which are not, individually or in the
aggregate, material and (iii) Liens, imperfections of title and
easements and zoning restrictions, if any, which do not materially
detract from the value of the property subject thereto and purposes to
which such property is currently employed;
"KNOWLEDGE" of any party shall mean the actual knowledge of each of the
directors of such party and, in the case of the Seller, the actual
knowledge of each of the directors of the Seller;
"CLOSING" means closing of the sale and purchase of the Purchased
Assets referred to in clause 5.1;
"CONSENT" means, with respect to any Government Entity or any other
third party, any approval, consent, ratification, permit, licence,
waiver or other authorisation of, filing with or notice to such
Government Entity or other third party, as the case may be;
"PROCEEDING" means any action, suit, enquiry, proceeding or
investigation by or before any Governmental Entity;
"EFFECTIVE TIME" means the close of business on the Business Day before
the Closing Date;
"CLOSING DATE" means the date and time at which the Closing actually
occurs;
"ASSUMED LIABILITIES" shall have the meaning set forth in clause 11.1;
"EXCLUDED LIABILITIES" shall have the meaning set forth in clause 11.2;
"TRANSACTION" means the sale and purchase of the Purchased Assets and
the transfer of the Employees pursuant to this Agreement;
5
"TELKOM MOBILE" means the unit of the Seller responsible for developing
the DCS 1800 License granted to Seller;
1.2 In this Agreement, a reference to:
1.2.1 liability under, pursuant to or arising out of (or any
analogous expression) any agreement, contract, deed or other
instrument includes a reference to contingent liability under,
pursuant to or arising out of (or any analogous expression)
that agreement, contract, deed or other instrument;
1.2.2 a statutory provision includes a reference to the statutory
provision as amended, modified or re-enacted from time to
time, any statutory provision substituted therefor and any
subordinate legislation made under the statutory provision (as
so amended, modified or re-enacted);
1.2.3 any party to this Agreement or any other agreement or document
shall include such party's successors and permitted assigns;
1.2.4 a clause, paragraph or schedule, unless the context otherwise
requires, is a reference to a clause or paragraph of or
schedule to this Agreement; and
1.2.5 any reference to any event, change or effect being "material"
or having a "material adverse effect" on or with respect to
any business or entity means such event, change or effect is
materially adverse to (i) financial condition or results of
operations of such business or entity as a whole or (ii) the
ability of such business or entity to consummate the
Transaction.
6
1.3 The headings in this Agreement do not affect its interpretation.
2. SALE AND PURCHASE
2.1 On the terms and subject to the conditions set forth in this Agreement,
the Seller shall sell, convey, assign, transfer and deliver to the
Purchaser, and the Purchaser shall buy, receive and accept, in each
case with effect from the Closing Date, the following assets as they
exist at the Effective Time:
2.1.1 all of the Seller's right, title and interest in and to, and
liabilities and obligations under and associated with, the
Contracts (subject to clauses 10.6 and 11.2);
2.1.2 all of the Seller's right, title and interest in and to the
Telecommunications Facilities.
2.2 Notwithstanding any other provision of this Agreement, the following
assets shall not be included in the Purchased Assets to be sold or
acquired pursuant to this Agreement:
2.2.1 all Excluded Contracts;
2.2.2 all right, title and interest to the Intellectual Property
owned by the Seller;
2.2.3 all Tax Records;
2.2.4 any refunds of Taxes or other amounts receivable with respect
to the Taxes of the Seller; and
2.2.5 any and all assets of the Seller not listed in the Schedules.
3. CONDITIONS
3.1 The respective obligations of each of the Purchaser and the Seller to
consummate the
7
Transaction shall be subject to the satisfaction of the following
conditions any of which may be waived in writing by both, but only
both, parties:
3.1.1 No statute, rule or regulation shall have been enacted or
promulgated by any Governmental Entity which prohibits, and
there shall have been no order, writ or injunction of a
court of competent jurisdiction in effect precluding the
performance by either party of its material obligations
hereunder.
3.1.2 Since the date of this Agreement, there shall not have been
commenced or threatened against the Purchaser or the Seller,
any Proceeding that is reasonably likely to have the effect of
preventing, materially delaying, making illegal, or otherwise
materially interfering with the performance by either party of
any of its obligations hereunder, except for such obligations
that, considered individually or in the aggregate, are not
material.
3.1.3 Each of the Consents necessary for the performance by the
Seller of its material obligations hereunder, other than,
without prejudice to clause 10.6, Consents necessary in order
to assign and novate the Contracts shall have been obtained
and shall be in full force and effect.
3.1.4 Each of the Consents necessary for the performance by the
Purchaser of its material obligations hereunder, other than,
without prejudice to clause 10.6, Consents necessary in order
to assign and novate the Contracts shall have been obtained
and shall be in full force and effect.
3.1.5 The Seller shall have transferred or assigned to the Purchaser
all of Seller's right, title and interest in and to the
Contracts, and novated to the Purchaser the obligations and
8
liabilities under and associated with the Contracts; and the
Purchaser shall have assumed, become liable for and agreed to
perform the Contracts.
3.1.6 The parties shall have executed and delivered to each other an
agreement with regard to the transfer of Employees to the
Purchaser incorporating the provisions of clause 12.1.
3.2 The obligation of the Purchaser to consummate the Transaction shall be
subject to the satisfaction of the following conditions, any of which
may be waived in writing by the Purchaser:
3.2.1 Each of the necessary approvals of the Boards of Directors and
Commissioners of Seller shall have been obtained and remain in
full force and effect.
3.2.2 There must not have been made or threatened by any third party
any material claim asserting the Seller is not the legal owner
of substantially all of the Purchased Assets save and except
for such claims as the Purchaser has Knowledge, or has reason
to believe, to be frivolous or made without basis.
3.2.3 The Seller shall have delivered to the Purchaser the documents
required by clause 5.2.
3.2.4 All of the representations and warranties of the Seller set
forth in this Agreement or in any certificate delivered in
connection herewith that are qualified as to materiality shall
have been true and correct in all respects and each such
representation that is not so qualified (considered
individually), and all such representations and warranties
that are not so qualified (considered collectively) shall have
been true and correct in all material respects, (i) in the
case of the representations and warranties in Part A and Part
B of Schedule 1, as of the date of this Agreement and (ii) as
if made on and
9
as of the Closing Date (without recognising as valid
disclosures in the case of the representations and warranties
in Part A and Part B of Schedule 1, those disclosures made in
any supplement or amendment to the Signing Disclosure Schedule
in the form in which it was delivered simultaneously with the
execution of this Agreement).
3.3 The obligation of the Seller to consummate the Transaction shall be
subject to the satisfaction of the following conditions, any of which,
may be waived in writing by the Seller:
3.3.1 Each of the necessary approvals of the Boards of Directors and
Commissioners and the General Meeting of Shareholders of
Purchaser shall have been obtained and remain in full force
and effect.
3.3.2 The Purchaser shall have delivered to the Seller the documents
required by clause 5.3.
3.3.3 All of the representations and warranties of the Purchaser set
forth in this Agreement or in any certificate delivered in
connection herewith that are qualified as to materiality shall
have been true and correct in all respects, and each such
representation that is not so qualified (considered
individually), and all such representations and warranties
that are not so qualified (considered collectively), shall
have been true and correct in all material respects, in each
case as of the date of this Agreement and as of the Closing
Date.
3.3.4 If considered appropriate by the Seller, the approval by the
General Meeting of the Shareholders of Seller of the
consummation of the Transaction by Seller has been obtained
and remains in full force and effect.
3.4 If, at any time, the Seller or the Purchaser becomes aware of facts or
circumstances
10
which it determines, in its sole and absolute discretion, could have a
material adverse effect on the consummation of the Transaction, it
shall promptly notify the other party in writing.
4. PURCHASE PRICE
4.1 The purchase price of the Purchased Assets is Rp 135,518,783,330 (the
"PURCHASE PRICE"), as detailed in Attachment 5 and 6.
4.2 At Closing, the Purchaser shall pay to the Seller, or as the Seller
directs, in an amount equal to the Purchase Price by wire transfer in
immediately available funds to a bank account of the Seller, details of
which are to be provided to the Purchaser at least five (5) Business
Days prior to the expected date of the Closing. Upon receipt of the
Purchase Price, the Seller shall promptly deliver to the Purchaser a
written acknowledgement thereof.
5. CLOSING
5.1 The Closing shall take place at the offices of Hadiputranto, Hadinoto &
Partners at The Jakarta Stock Exchange Building, Tower II, 21st Floor,
Jl. Jend, Sudirman ▇▇▇. ▇▇-▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as
the parties shall agree upon in writing, at 10.00 a.m. (local time) on
30 April 2002 or at such other time and date as the parties shall agree
upon in writing, effective as of 12:01 a.m. on the following day;
provided that the Closing Date shall be no later than 30 June 2002
(unless otherwise extended pursuant to clause 6.1(c)(i) or clause
6.1(d)(i)).
5.2 At the Closing, the Seller shall deliver to the Purchaser the
following:
5.2.1 The Records, executed sale and purchase contracts,
assignments, registrations and other instruments of sale and
purchase, assignment and transfer as shall be effective to
vest in the Purchaser all of the right, title and interest of
the Seller in the Purchased Assets.
11
5.2.2 A certificate of an authorized director of the Seller dated
the Closing Date, to the effect that (a) the Closing
Warranties are true and correct in all material respect as of
the Closing Date as if made on the Closing Date (recognising
as valid disclosures those disclosures made in the Closing
Disclosure Schedule), and (b) the Seller has performed all
obligations required under this Agreement to be performed by
it at or prior to the Closing.
5.2.3 A deed of transfer evidencing the transfer of all right, title
and interest and assumption of all liabilities pursuant to
this Agreement in the Purchased Assets (the "DEED OF
TRANSFER"), executed by the Seller.
5.2.4 Novation agreements in respect of the Contracts, executed by
the Seller and the counterparties to such Contracts.
5.3 At the Closing, the Purchaser shall deliver to the Seller the
following:
5.3.1 The Purchase Price, in the manner required by clause 4.2.
5.3.2 The Deed of Transfer, executed by the Seller and the
Purchaser.
5.3.3 A certificate of an authorized director of the Purchaser dated
the Closing Date, to the effect that (a) the Purchaser
Warranties are true and correct in all material respect as of
the Closing Date as if made on the Closing Date and (b) the
Purchaser has performed all obligations required under this
Agreement to be performed by it at or prior to the Closing.
5.3.4 Novation agreements in respect of the Contracts, executed by
the Purchaser.
12
6. TERMINATION PRIOR TO THE CLOSING DATE
6.1 This Agreement may be terminated prior to the Closing Date only as
follows:
(a) By mutual written consent of the Purchaser and the Seller;
(b) By the Purchaser or the Seller if any Governmental Entity
shall have issued an order, decree or ruling or taken any
action (which order, decree, ruling or other action the
parties hereto shall use their reasonable efforts to lift),
which prohibits the acquisition of the Purchased Assets by the
Purchaser and such order, decree, ruling or other action shall
have become final and non-appealable;
(c) By the Purchaser (i) if the Seller shall have breached any of
its representations, warranties, covenants or other agreements
contained in this Agreement which breach would give rise to
the failure of a condition set forth in clause 3, and which
breach cannot be or is not cured within 30 days after the
giving of written notice by the Purchaser to the Seller
specifying such breach; or (ii) upon written notice to the
Seller if any of the conditions in clauses 3.1 or 3.2 has not
been satisfied as of 30 April 2002 or if satisfaction of such
condition is or becomes impossible (other other primarily
through the failure of the Purchaser to comply with its
obligations under this Agreement) and the Purchaser has not
waived such condition on or before 30 April 2002; or (iii) on
or after 30 April 2002, if the Closing shall not have
theretofore occurred and if the failure of the Closing to
occur is not the result of a breach of representation,
warranty, covenant or other agreement contained herein by the
Purchaser;
13
(d) By the Seller (i) if the Purchaser shall have breached any of
its representations, warranties, covenants or other agreements
contained in this Agreement and which breach would give rise
to the failure of a condition set forth in clause 3, and which
breach cannot be or is not cured within 30 days after the
giving of written notice by the Seller to the Purchaser
specifying such breach; or (ii) upon written notice to the
Purchaser if any of the conditions in clauses 3.1 or 3.3 has
not been satisfied as of 30 April 2002 or if satisfaction of
such condition is or becomes impossible (other than primarily
through the failure of the Seller to comply with its
obligations under this Agreement) and the Seller has not
waived such condition on or before 30 April 2002; or (iii) on
or after 30 April 2002, if the Closing shall not have
theretofore occurred and if the failure of the Closing to
occur is not the result of a breach of representation,
warranty, covenant or other agreement contained herein by the
Seller.
6.2 Termination of this Agreement by any party hereto pursuant to clause
6.1 shall be effected by the Purchaser or the Seller by delivering
written notice thereof to the other party specifying the provision
hereof pursuant to which such termination of the Transaction is made,
and thereafter no party shall have any liability or obligation to the
other party hereunder except for fraud or for breach of this Agreement
prior to such termination of this Agreement.
6.3 The Purchaser and the Seller hereby waive the provisions of Article
1266 of the Indonesian Civil Code to the extent it requires a court
pronouncement in respect of termination of this Agreement.
14
7. REPRESENTATIONS AND WARRANTIES OF THE SELLER
7.1 On the date of this Agreement, the Seller represents and warrants to
the Purchaser that the Signing Warranties are true and correct, subject
to the qualifications and exceptions set forth in the disclosure
schedule delivered to the Purchaser in writing simultaneously therewith
(the "SIGNING DISCLOSURE SCHEDULE").
7.2 On the date of this Agreement, the Seller represents and warrants to
the Purchaser that the Asset Warranties are true and correct, subject
to the qualifications and exceptions set forth in a disclosure schedule
to be delivered to the Purchaser in writing simultaneously therewith
(the "ASSET DISCLOSURE SCHEDULE").
7.3 At the Effective Time, the Seller represents and warrants to the
Purchaser that the representations and warranties repeating each of the
Signing Warranties and the Asset Warranties and updating each of them
for new developments or additional disclosures in the case of the
Signing Warranties since the date hereof, (the "CLOSING WARRANTIES")
are true and correct in all material respect, subject to the
qualifications and exceptions set forth in a disclosure schedule to be
delivered to the Purchaser in writing simultaneously therewith (the
"CLOSING DISCLOSURE SCHEDULE").
7.4 The Signing Warranties, the Asset Warranties and the Closing Warranties
(together the "SELLER WARRANTIES") are qualified by the facts and
circumstances fully and fairly disclosed in the Signing Disclosure
Schedule, the Asset Disclosure Schedule and the Closing Disclosure
Schedule (together the "SELLER DISCLOSURE SCHEDULES"), respectively.
Each disclosure set forth in the Disclosure Schedules shall be
identified by reference to, or grouped under a heading referring to, a
clause in Schedule 1. Each such disclosure shall be deemed to be
disclosed with respect to each such clause and to each other clause to
which it reasonably relates.
15
7.5 Each Warranty is to be construed independently and (except where this
Agreement provides otherwise) is not limited by a provision of this
Agreement or another Warranty.
7.6 Except as otherwise specifically set forth in this Agreement, Seller
makes no express or implied warranty of merchantability or fitness for
a particular purpose, or any other warranty as to the condition or
operation of any Purchased Assets.
7.7 Limitations on Liability
7.7.1 The Seller will have no liability (for indemnification or
otherwise) with respect of the Seller Warranties in Part B of
Schedule 1 unless and until the total of any or all damages
due to the Purchaser with respect to Seller Warranties equals
or exceeds in the aggregate of Rp 3,501,534,148, in which case
the Seller shall be liable for the entire amount of such
damages; provided that in no event shall the Seller's
liability for damages with respect to the Purchaser exceed in
aggregate the Purchase Price.
8. COVENANT OF THE SELLER
From the date of this Agreement through the Effective Time, the Seller
shall comply with Schedule 3.
9. WARRANTIES OF THE PURCHASER
9.1 On the date of this Agreement, the Purchaser represents and warrants to
the Seller that the Purchaser Warranties are true and correct, subject
to the qualifications and exceptions set forth in the disclosure
schedule delivered to the Seller in writing simultaneously therewith
(the "PURCHASER DISCLOSURE SCHEDULE").
16
9.2 The Purchaser Warranties are qualified by the facts and circumstances
fully and fairly disclosed in the Purchaser Disclosure Schedule. Each
disclosure set forth in the Purchaser Disclosure Schedule shall be
identified by reference to, or grouped under a heading referring to, a
clause in Schedule 2. Each such disclosure shall be deemed to be
disclosed with respect to each such clause and to each other clause to
which it reasonably relates.
9.3 Each Purchaser Warranty is to be construed independently and (except
where this Agreement provides otherwise) is not limited by a provision
of this Agreement or another Warranty.
10. MUTUAL COVENANTS
10.1 Between the date of this Agreement and the Closing, the Seller will,
upon delivery by the Purchaser of reasonable prior written notice (i)
afford the Purchaser and its authorised representatives reasonable
access to all books and records in relation to the Purchased Assets;
and (ii) permit the Purchaser to make such inspections (including
making such investigations and assessments, as the Purchaser deems
necessary or appropriate in its sole and absolute discretion, of the
Purchased Assets. The Purchaser and its authorised representatives
shall conduct all such inspections in a manner that will minimise
disruptions to the business and operations of Telkom Mobile and the
Seller's other businesses.
10.2 Prior to the Closing, upon the terms and subject to the conditions of
this Agreement, the Purchaser and the Seller shall use their respective
reasonable efforts to take, or cause to be taken, all actions, and to
do, or cause to be done and to cooperate with each other in order to do
so, all things necessary, proper or advisable (subject to any
applicable laws) to consummate the Closing and the Transaction as
promptly as practicable after receiving any necessary or desirable
corporate approvals or other approvals (including, but not limited to
the preparation and filing of all forms, registrations and notices
required to be filed
17
to consummate the Closing and the Transaction and the taking of such
legal actions as are necessary to obtain any requisite Consents of any
Governmental Entity and any other third party). In addition, no party
hereto shall take any action after the date hereof that could
reasonably be expected to materially delay the obtaining of, or result
in not obtaining, any Consent from any Governmental Entity or other
third party required to be obtained prior to the Closing.
10.3 Prior to the Closing, each party shall promptly consult with the other
party hereto with respect to, provide any necessary information with
respect to, and provide the other party (or its counsel) with copies
of, all filings made by such party with any Governmental Entity or any
other information supplied by such party to a Governmental Entity in
connection with this Agreement and the Transaction. Each party hereto
shall promptly provide the other parties with copies of any written
communication received by such party from any Governmental Entity
regarding the Transaction. If any party hereto receives a request for
additional information or documentary material from any such
Governmental Entity with respect to the Transaction, then such party
shall endeavor in good faith to make, or cause to be made, as soon as
reasonably practicable and after consultation with the other parties,
an appropriate response in compliance with such request.
10.4 For a period of ten (10) years after the Closing Date, the Purchaser
and the Seller shall provide each other with such reasonable assistance
as may be requested by them in connection with the preparation of any
Tax Return, any Tax audit or other examination by any Governmental
Entity, or any judicial or administrative proceedings related to
liability for Taxes. The Purchaser and the Seller shall retain and
provide each other upon written request with records or information
which may be relevant to such preparation, audit, examination,
proceeding or determination. The party requesting assistance hereunder
shall reimburse the other for reasonable out-
18
of-pocket expenses incurred in providing such assistance.
10.5 In case at any time after the Closing Date any further action is
necessary, proper or advisable to carry out the purposes of this
Agreement, as soon as reasonably practicable, each of the Purchaser and
the Seller shall use its reasonable efforts to take, or cause its
directors, commissioners or other representatives to take, all such
necessary, proper or advisable actions including, but not limited to,
the Seller giving the Purchaser such information in the Seller's
possession necessary in the process of registering the Purchased Assets
required to be registered (the Purchaser to bear the cost of the
Seller's reasonable expenses).
10.6 If any Contract, or any other instrument or arrangement cannot be
assigned or transferred to the Purchaser except by an assignment or
transfer made with the Consent of a third person or by a novation
agreement:
10.6.1 this Agreement shall not constitute an agreement to assign or
transfer any interest in any Contract, or other instrument or
arrangement, if an assignment or transfer or an attempt to
make such an assignment or transfer without the Consent of a
third party or a novation agreement would constitute a breach
or violation thereof, or affect adversely the rights of the
Purchaser or the Seller thereunder; any transfer or assignment
of any such Contract, or other instrument or arrangement that
requires the Consent of a third party or novation agreement
shall be made subject to such Consent or novation agreement
being obtained; and from the date of this Agreement to the
Effective Time, each party shall use reasonable efforts to
obtain any such Consent or novation agreement; and
10.6.2 in the event a Contract is not transferred to the Purchaser on
or prior to the Closing Date, from the
19
period commencing on the Closing Date until such Contract is
transferred to the Purchaser, each party shall continue to use
reasonable efforts to obtain the third party's consent to the
assignment, or achieve the novation, of such Contract.
10.7 If title to any of the Purchased Assets, including the Contracts, is
not effectively vested in the Purchaser at Closing, the parties shall
work together in good faith to allow the Purchaser to receive the
benefits of such Purchased Assets until that Purchased Asset has been
effectively vested in the Purchaser.
11. LIABILITIES AND APPORTIONMENTS
11.1 On the Closing Date, the Seller shall transfer and the Purchaser shall
assume, become liable for and agree to pay, discharge and perform,
subject to clause 11.2, liabilities and obligations associated with the
Contracts (the "ASSUMED LIABILITIES").
11.2 The Purchaser shall not assume, and the Seller shall retain and
indemnify the Purchaser against, each of the following liabilities
pursuant to this Agreement (collectively, the "EXCLUDED LIABILITIES"):
11.2.1 liabilities, other than Assumed Liabilities, incurred by the
Purchaser in connection with the Purchased Assets before the
Effective Time;
11.2.2 claims, other than Assumed Liabilities, by any person
outstanding against the Seller before the Effective Time or
arising by reason of any act or omission by it before the
Effective Time; and
11.2.3 all liabilities for breach of any Contract relating to the
period prior to the Effective Time.
11.3 The Purchaser is responsible for all liabilities incurred by it in
connection with the Purchased Assets from and after the Effective Time,
including, without limitation, all
20
expenses owed in connection with the Purchased Assets from and after
the Effective Time and in connection with the Employees (including,
without limitation, wages, accrued holiday pay, bonuses and other
expenses in respect of the Employees) from and after the date of this
Agreement.
12. EMPLOYEES
12.1 Subject to clause 12.2 and acceptance of the employment by the
Employees, the parties agree that the Employees shall become employees
of the Purchaser, subject to the following conditions:
12.1.1 there shall be no substantial change of job position, subject
to performance and competence; and
12.1.2 the minimum remuneration of an Employee shall be not less than
that received by that Employee at the date of this Agreement.
12.2 The matters set out in clause 12.1 shall be provided for in detail in a
separate agreement, including the arrangements/terms regarding pensions
and welfare.
13. COSTS
Except where this Agreement provides otherwise, each party shall pay
its own costs relating to the negotiation, preparation, execution and
performance by it of this Agreement and of each document referred to in
it.
14. GENERAL
14.1 An amendment to this Agreement is valid only if it is in writing and
signed by or on behalf of each party.
14.2 The failure to exercise or delay in exercising a right or remedy
provided by this Agreement or by law does not constitute a waiver of
the right or remedy or a waiver of other rights or remedies. No single
or partial exercise of a right or remedy provided by this Agreement or
by law prevents further exercise of the right or remedy or the exercise
of another right or remedy.
21
14.3 Except to the extent that they have been performed and except where
this Agreement provides otherwise, the obligations contained in this
Agreement remain in force after Closing.
14.4 This Agreement (i) constitutes the entire Agreement and supersedes all
prior agreements and understandings (except the Cooperation Agreement
provided that if there are conflicting provisions between the
Cooperation Agreement and this Agreement the provisions of this
Agreement shall prevail), both written and oral, between the parties
with respect to the subject matter hereof and thereof; and (ii) not
intended to confer any rights or remedies upon any third party other
than the parties hereto and thereto.
14.5 Any term or provision of this Agreement that is held by a court of
competent jurisdiction or other authority to be invalid, void or
unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions
hereof or the validity and enforceability of the remaining terms and
provisions in any other situation or in any other jurisdiction. If the
final judgment of a court of competent jurisdiction or other authority
declares that any term or provision hereof is invalid, void or
unenforceable, the parties agree that the court making such
determination shall have the power to reduce the scope, duration, area
or applicability of the term or provision, to delete specific words or
phrases or replace any invalid, void or enforceable term or provision
with a term or provision that is valid and enforceable and it comes
closest to expressing the intentions of the invalid or unenforceable
term or provision.
14.6 At any time prior to the Closing Date, either party may (i) extend the
time for the performance of any of applications or other acts of the
other party; (ii) waive any
22
inaccuracies in the representations and warranties of the other party
obtained in this Agreement or in any other document executed pursuant
to this Agreement; or (iii) waive compliance by the other party of any
of agreements or conditions contained in this Agreement. Any agreement
on the part of the party to any such extension or waiver shall be valid
only if set out in writing signed by or on behalf of such party. The
failure of any party to this Agreement to assert any of its rights
under this Agreement or otherwise shall not constitute a waiver of
those rights.
15. ASSIGNMENT
Neither party may assign and transfer any of its rights or obligations
under this Agreement without the prior written consent of the other
party.
16. NOTICES
16.1 A notice on other communication under or in connection with this
Agreement (a "NOTICE") shall be:
16.1.1 in writing; and
16.1.2 delivered personally or sent by fax to the party due to
receive the Notice to the address set out in clause 16.3 or to
another address, person or fax number specified by that party
by not less than 7 days' written notice to the other party
received before the Notice was dispatched.
16.2 Unless there is evidence that it was received earlier, a Notice is
deemed given if:
16.2.1 delivered personally, when left at the address referred to in
clause 16.1.2; and
16.2.2 sent by fax, when confirmation of its transmission has been
recorded by the sender's fax machine.
23
16.3 The Address referred to in clause 16.1.2 is:
MARKED
NAME OF PARTY ADDRESS FACSIMILE FOR THE ATTENTION OF
-----------------------------------------------------------------------------------------
Seller ▇▇. ▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, (022)440-313 President Director
Indonesia
-----------------------------------------------------------------------------------------
Purchaser Graha Surya Internusa, Jl. H.R. (021)527-2950 President Director
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇-▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------
17. GOVERNING LAW AND ARBITRATION
17.1 This Agreement shall be governed by and construed in accordance with
the laws of the Republic of Indonesia.
17.2 The Purchaser and the Seller agree that if any difference, dispute,
conflict or controversy (a "DISPUTE"), arises out of or in connection
with this Agreement or its performance, including without limitation
any dispute regarding its existence, validity, termination of rights or
obligations of any party hereto, the Purchaser and the Seller will
attempt for a period of thirty (30) days after the receipt of one party
of a written notice from the other party of the existence of the
Dispute to settle the Dispute by amicable settlement between the
parties.
17.3 If the Purchaser and the Seller are unable to reach agreement to settle
the Dispute within the thirty (30) day period set forth in clause 17.2,
then either party, may submit the Dispute to a Board of Arbitration
under the applicable rules of the Indonesian National Board of
Arbitration (BANI) (the "BANI RULES"). The arbitration will be
conducted in Bahasa Indonesia in Jakarta. Notwithstanding the
provisions of clause 16, any notice of arbitration, response or other
communication given to or by a party to the arbitration must be given
and deemed received as provided in the BANI Rules.
24
17.4 The Board of Arbitration will consist of three arbitrators appointed in
accordance with the BANI Rules.
17.5 The Board of Arbitration appointed must conduct the arbitration in
accordance with this Agreement, the BANI Rules and the prevailing
Indonesian laws and regulations relating (to arbitration ("ARBITRATION
LAWS AND REGULATIONS"). Where this Agreement, the BANI Rules, or the
Arbitration Laws and Regulations are silent as to the conduct of the
arbitration proceedings, the Board of Arbitration must decide as to how
the proceedings will be conducted. The parties shall each use their
reasonable efforts to ensure that a hearing on the merits shall be
commenced no later than three (3) months after the appointment of the
third arbitrator, unless the parties agree on an extension of time or
the tribunal extends such time for good cause shown. Each of the
parties expressly agree to waive the applicability of Article 48(1) and
Article 73(b) of Law No. 30 of 1999 on Arbitration and Alternative
Dispute Resolution ("ARBITRATION LAW NO. 30") and agree that the
arbitration proceedings need not be completed within a specified time.
17.6 Other than (i) an application for pre-arbitral injunction, pre-arbitral
attachment or other order in aid of arbitral proceedings which may be
made by either party or (ii) after the matter has been determined by
the Board of Arbitration as provided in this clause 17, and then only
for the enforcement of the arbitration award, neither the Purchaser nor
the Seller will be entitled to commence or file any action in a court
of law relating to any Dispute.
17.7 Except as otherwise permitted in the Arbitration Laws and Regulations,
any decision of the Board of Arbitration in any matter within this
clause 17 will be final, binding and incontestable and may be used
as a basis for enforcement thereon in the Republic of Indonesia or
elsewhere. The Board of Arbitration will be entitled to include in its
decision a determination as to the payment of the cost and expenses of
the arbitrators, the administrative costs of the arbitration, the legal
fees incurred by the parties, the cost and expenses of witnesses and
25
all other costs and expenses necessarily incurred in the opinion of the
Board of Arbitration in order to properly settle the Dispute. Each of
the parties renounce its right to appeal the decision of the panel of
arbitrators in accordance with Article 70 of the Arbitration Law No. 30
and agrees that no party shall appeal the decision of the panel of
arbitrators to any court.
17.8 The Purchaser and the Seller expressly agree (i) that the decisions of
the Board of Arbitration must be made based on majority votes of the
arbitrators, (ii) that the Board of Arbitration must state the reasons
for its decisions in writing and must make the decisions entirely on
the basis of applicable laws and not on the basis of the principle of
ex aequo et ▇▇▇▇, and (iii) that the mandate of the Board of
Arbitration duly constituted in this Agreement will remain in effect
until a final arbitration award has been issued by the Board of
Arbitration.
18. GOVERNING LANGUAGE
This Agreement is concluded in both Bahasa Indonesia and English. In
the event of any inconsistency or contradiction between the Bahasa
Indonesia and English texts, the Bahasa Indonesia text shall prevail.
19. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which when executed and delivered is an original and all of which
together evidence the same agreement.
26
IN WITNESS WHEREOF, the duly authorized representatives of Purchaser and Seller
have executed this Agreement as of the date first written above.
PERUSAHAAN PERSEROAN (PERSERO) PT PT TELEKOMUNIKASI SELULAR
TELEKOMUNIKASI INDONESIA TBK
[STAMP]
by : /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ by : /s/ Mulia ▇. ▇▇▇▇▇▇▇▇
--------------------- -----------------------
Name : ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Name : Mulia ▇. ▇▇▇▇▇▇▇▇
Title : President Director Title : President Director
27