EXHIBIT 4.9
Execution copy
ALPHA STAR INVESTMENTS LIMITED
SHAREHOLDERS AGREEMENT
PARTIES TO THIS AGREEMENT
PARTY A : SUN CROWN LIMITED
Legal Representative: Commercial Practising Accountants Limited
PARTY B : POWER CENTURY INVESTMENTS LIMITED
Legal Representative: ACCA Secretarial Limited
PARTY C : GLOBAL CHAMPION INTERNATIONAL LIMITED
Legal Representative: Ocean King Consultants Limited
PARTY D : NAM TAI ELECTRONICS, INC.
Legal Representative: Koo Ming Kown
WHEREAS
Alpha Star Investments Limited (hereinafter referred to as the "JV"), which is a
joint venture operated by Party A, Party B and Party C, is engaged in
telecommunications technology development and the related business of parts and
accessories (including the sales thereof). The JV's authorized share capital is
USD 30 million and its issued share capital is USD 4,875,000, and the
Shareholders Agreement was signed by the three Parties on 30th September, 2002.
In terms of the share capital, Party A holds 1,625,000 shares, Party B holds
2,275,000 shares and Party C holds 975,000 shares.
Party D agrees to subscribe for 1,625,000 new shares of the JV in the par value
of USD 1.00 per share with USD 10 million in cash, thus becoming a strategic
partner of the JV.
1
This Agreement has been entered into by the Parties through friendly
consultation on the principles of equality, mutual benefit and joint development
in accordance with the Companies Ordinance and related laws of Hong Kong Special
Administrative Region of the People's Republic of China.
TERMS AND CONDITIONS
SUBSCRIPTION AND TRANSFER
- Each Party shall contribute its subscribed equity in cash.
- During the joint venture, the JV shall not reduce its authorized
share capital. No additional share issue shall be allowed unless it
is agreed by means of a unanimous resolution among the Parties.
- Without the written consent of the other Parties, no Party shall
transfer, sell or otherwise dispose of any part or all of its equity
in the JV to a third Party; however, the other Parties shall not
unreasonably refuse to give such a written consent. If any Party
desires to transfer, sell or otherwise dispose of any part or all of
its equity to any other Party or a fifth party, it shall inform the
other Parties in writing (together with a copy of the share transfer
contract proposed to be signed with the transferee) of its
intention, terms and conditions of the transfer and the identity of
the transferee it proposes. The other Parties shall have the
pre-emptive rights to purchase the said equity in accordance with
the terms and conditions specified in the notice. If all the other
Parties desire to acquire all or any part of the equity to be
transferred according to the notice, they shall be entitled to
acquire the equity according to the proportions of the shares owned
by them (excluding the transferor's equity) for the time being in
accordance with the terms and conditions specified in the notice.
Any Party who desires to acquire all or any part of the equity to be
transferred shall inform the transferor of its intention to acquire
the same within 30 days upon
2
receipt of the notice; otherwise, the transferor shall be entitled
to transfer, sell or otherwise dispose of the equity to the proposed
transferee in accordance with the terms and conditions specified in
the notice.
AVOIDANCE OF COMPETITION IN BUSINESS
- The Parties respectively undertake and warrant that when the equity
held by each Party in the JV is no less than 10% of the issued share
capital of the JV, the Party shall not directly or indirectly be
engaged or participate in any business which is the same as the JV's
one so as to avoid any competition with the JV. While making such
undertaking and warrant, Party D shall enjoy the preferential status
of being the processor of the processing business outcontracted by
the JV, but 50% of the total value of the processing business
outcontracted by the JV shall be regarded as the lower limit of the
processing business contracted by the JV to it. However, if the
total sales of the JV do not reach the sales forecasts provided by
the JV to Party D before Party D signs the subscription agreement
for 3 consecutive months, Party D shall be entitled to discuss with
the JV and participate with the consent of the JV in the business
which is the same or where competition exists with the JV's
business, so as to compensate the capital expenditure incurred by
Party D for the processing business conducted for the JV. The JV
shall not unreasonably refuse to give Party D such consent. This
stipulation shall not apply to the business which has been conducted
by Party D when Party D signs this Agreement.
DISTRIBUTION OF PROFITS
- The accounting year of the JV shall start on 1st January of a
Gregorian calendar year and end on 31st
3
December that year but the first accounting year shall start at the
date of inauguration and end on 31st December that year. Within the
first 4 months of each accounting year, the finance department of
the JV shall prepare the financial statements of the previous year
and submit them to a meeting of the Board of Directors for approval
after auditing by auditors.
- No profits shall be distributed by the JV before its accumulated
losses in the previous year are compensated. Any undistributed
profits in the previous year can be combined for distribution in the
subsequent year. The Parties agree that the dividend shall be
distributed each year out of an amount which is no less than 70% of
the accumulated profits according to the proportions of the actual
contributions of the Parties and the remaining accumulated profits
shall be allocated as additional funds for the expansion of the
capital of the JV. Only when the issued capital of the JV reaches a
total of USD 30 million can the Board make a decision on the
distribution of the remaining accumulated profits after dividend
distribution.
BOARD OF DIRECTORS
- The JV shall form a board of directors, which is composed of 4
directors with one (1) director to be nominated by each Party. The
board shall appoint the directors nominated by the shareholders
according to the criteria. The board shall have one (1) chairman and
one (1) vice-chairman and they shall be nominated and elected by all
the directors.
- In case of any share transfer between the Parties or to a party
other than the JV Parties, the rights of the Parties to nominate
directors shall remain unchanged after the transfer, but if the
transferor no longer holds any equity in the JV after the share
transfer, its right to nominate a director shall be forfeited and
the number of directorships in the board shall be reduced by one
member.
- The board of directors, which is the highest authority of the JV,
shall
4
decide on all the material matters of the JV. General matters of the
JV shall be decided by the votes of more than half of the directors
who attend a board meeting and any of the following matters shall be
decided by the votes of two thirds of the directors who attend a
board meeting:
1) the appointment and dismissal of the president, general
manager, deputy general manager and senior management
personnel and the decision upon their authority and
remuneration;
2) the decision upon and approval of any important report
submitted by the president or general manager, including any
operation plan report and annual report;
3) the approval of all annual operating budgets, including
financial statements, financial forecasts, cash flows,
operating funds, capital expenditure, annual profit
distribution and loss remedies;
4) the adoption of the important rules, regulations and systems
of the JV, including the systems of wages, reward and
punishment procedures, welfare and staff employment and
dismissal; and
5) the decision upon the borrowings and loans, guarantees,
pledges and other financing arrangements of the JV.
The resolution upon any of the following matters can only be passed
unanimously by all the directors who attend a board meeting:
1) the amendments to the JV's memorandum and articles of
association;
2) the winding-up and dissolution of the JV;
3) the increase in the JV's authorised or issued share capital
and equity transfer;
4) the merger of the JV with any other
economic organization;
5) any material change in any business
of the JV; and
6) any change in any capital of a subsidiary of the JV or the
merger
5
of a subsidiary with any other economic organization.
EMPLOYEE'S SUBSCRIPTION OF EQUITY
- The Parties agree that the board of the JV may give the
employees of the JV the stock option to subscribe for the
shares of the JV which shall be no more than 10% of the issued
capital of the JV at prices which are no less than the par
value of the shares and the subscription prices and terms and
the other relevant conditions shall be approved by the board
of directors.
VALIDITY
- This Agreement shall become effective upon signing by the
Parties until the date of the winding-up or dissolution or
until the date when it becomes a public or listed company.
- The Parties shall be bound by the terms and conditions hereof
until they cease to be shareholders of the JV.
- When any Party transfers its shares to a transferee other than
a JV Party, the transfer contract shall specify that the
transferee shall also be bound by the terms and conditions
hereof and have the same rights and responsibilities as any
other Parties.
This Agreement shall be made in quadruplicate, with one (1) signed copy to be
kept by each Party.
8th January, 2003.
PARTY A : SUN CROWN LIMITED
Legal Representative: Commercial Practising Accountants Limited
[Signed with chop : For and on behalf of Sun Crown Limited For and on behalf of
Commercial Practising Accountants
6
Limited]
/s/ Illegible
- ---------------------------
Authorized Signature
PARTY B : POWER CENTURY INVESTMENTS LIMITED
Legal Representative: ACCA Secretarial Limited
[Signed with chop: For and on behalf of Power Century Investments Limited
For and on behalf of ACCA Secretarial Limited]
/s/ Illegible
- ---------------------------
Authorized Signature
PARTY C : GLOBAL CHAMPION INTERNATIONAL LIMITED
Legal Representative: Ocean King Consultants Limited
[Signed with chop: For and on behalf of Global Champion International Limited
For and on behalf of Ocean King Consultants Limited]
/s/ Chow Tsui Han
- ---------------------------
Authorized Signature
PARTY D : NAM TAI ELECTRONICS, INC.
Legal Representative: Koo Ming Kown
[Signed with chop : For and on behalf of Nam Tai Electronics, Inc.]
/s/ Koo Ming Kown
- ---------------------------
Authorized Signature
7