Enclosure 2
Supplement to Agenda 2
(Translation)
Minutes of the Extraordinary General Meeting of Shareholders No. 1/2011
of
Total Access Communication Public Company Limited
The Extraordinary General Meeting of Shareholders No. 1/2011 (the “Meeting”) was held on Tuesday, 31
May 2011 at Napalai Ballroom, Dusit Thani Bangkok, 946 Rama IV Road, Bangkok, Thailand.
The Meeting began at 10.00 hours.
Mr. Boonchai Bencharongkul, Chairman of the Board, was the Chairman of the Meeting. The following
directors, management, auditor and legal advisor of the Company were present at the Meeting:
Directors
1.
Mr. Boonchai Bencharongkul
Chairman of the Board
2.
Mr. Chulchit Bunyaketu
Independent Director, Chairman of the Audit Committee and
Member of the Remuneration Committee
3.
Mr. Soonthorn Pokachaiyapat
Independent Director, Member of the Audit Committee and
Member of the Remuneration Committee
4.
Mr. Jon Travis Eddy
Director and Chief Executive Officer
5.
Ms. Hilde Merete Tonne
Director
6.
Mr. Knut Snorre Bach Corneliussen Director
7.
Mr. Knut Borgen
Director
8.
Mr. Charles Terence Woodworth
Director
Management
1.
Mrs. Vanna Pornsinsiriruk
Chief Financial Officer
2.
Mr. Chaiyod Chirabowornkul
Senior Vice President, Distribution Division
3.
Mr. Wansit Saiyawan
Senior Vice President, Corporate Affairs and Public Relations
Department
Company Secretary
Mrs. Veeranuch Kamolyabutr
Senior Vice President, Legal Division
Auditor
Mrs. Gingkarn Atsawarangsalit
Ernst & Young Office Limited
Legal Advisor
Mr. Surapol Srangsomwong
Herbert Smith (Thailand) Limited
The Chairman thanked the shareholders for attending the Meeting and informed the Meeting that there
were 670 shareholders present in person and by proxies, representing 1,793,818,053 shares or 75.76 per
cent. of the total issued share capital of the Company. A quorum was thereby constituted pursuant to the
Articles of Association of the Company. The Chairman then declared the Meeting open.
During the Meeting, 220 additional shareholders were present in person and by proxies, making a total of
890 shareholders who attended the Meeting, representing a total of 1,826,642,590 shares or 77.15 per
cent. of the total issued share capital of the Company.
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Before proceeding to consider the agenda, the Chairman informed the Meeting that the Public Limited
Company Act provides that to cast a vote, each share shall have one vote. Voting shall be done by
show of hands, unless at least five shareholders request, and the meeting resolves, that voting be done
in secret, voting then may be done in secret. There were at least five shareholders who made such a
request. The Chairman therefore proposed to the Meeting to resolve that voting of shareholders shall be
done in secret, which was by way of writing votes on ballots of each agenda. There were no shareholders
objecting the secret method of voting. The Chairman then concluded that the Meeting approved the
secret method of voting by way of writing votes on ballots for every agenda, and asked the Assistant to
the Company Secretary to explain to the Meeting the voting procedure.
The Assistant to the Company Secretary explained to the Meeting the voting procedure for each agenda
as follows.
To cast a vote, one share shall have one vote.
A shareholder may cast his or her vote to approve, disapprove or abstain from voting.
For the convenience of the shareholders, the Company had arranged for a barcode system to be used to
count the votes, which would help expedite the vote computation process. To vote in each agenda, only
shareholders who disapprove or abstain from voting shall write their votes and sign their names on the
ballots and hand in the same to the Company’s staff to count the votes. Shareholders who approve the
agenda are not required to write their votes on the ballots.
To count the votes, only ballots of shareholders who disapprove or abstain from voting will be collected.
Disapproved, abstained and invalid votes will be deducted from the total votes of the shareholders who
attend the Meeting and are entitled to vote.
To pass a resolution, a simple majority vote of the shareholders who attend the Meeting and are entitled
to vote is required.
In addition, for transparency of the Meeting and in accordance with the best practices for general
meetings, the Chairman invited two shareholders to witness the vote counts. The Chairman then
requested the shareholders to consider the Agenda as follows.
Item 1
Acknowledgement of the progress of the HSPA upgrade under the Agreement to Operate
Cellular Telephone Services
The Chairman informed the Meeting that a number of shareholders asked about the progress of
the Company’s HSPA upgrade or 3G network upgrade using the 850 MHz frequency band in the
recent 2011 Annual General Meeting of Shareholders. The Company would like to inform the
Meeting details of this matter as follows.
The Company had planned to provide 3G services using the 850 MHz frequency band to
its customers since last three years. The Company had satisfied all the conditions imposed
by CAT Telecom Public Company Limited (“CAT”) for the 3G network upgrade using the 850
MHz frequency band. Despite that, CAT still withheld its approval. The Company then sought
approval from the National Broadcasting and Telecommunications Commission (the “NBTC”)
directly and expected that the NBTC would grant its approval in a few months. Once the
approval was obtained, the Company would immediately launch the long-awaited 3G commercial
services using the 850 MHz frequency band to its customers.
Meanwhile, the Company would continue to modernise its entire network (network swap) as
planned as it previously informed the shareholders in its 2011 Annual General Meeting of
Shareholders.
Mr. Hungchai Akkawatsakul and other shareholders asked for details of the Minutes of the 2011
Annual General Meeting of Shareholders because the Company did not send copies of such
Minutes to the shareholders together with the notice of this Meeting. He also asked for the
objectives of this Meeting.
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Mrs. Veeranuch Kamolyabutr responded that the Company has already posted such Minutes
on the Company’s website and apologised for any inconvenience caused to the shareholders
if copies of such Minutes were not included with the notice of this Meeting as the Company
planned to include them with the notice of the 2012 Annual General Meeting of Shareholders.
She further explained the reason that the Company brought Agenda 1 to the attention of the
shareholders at this Meeting. In the last 2011 Annual General Meeting of Shareholders, there
were a number of shareholders, who were also subscribers of the Company, complained about
the Company’s network problem and asked for the progress of the Company’s 3G upgrade.
The Company, therefore, deemed it necessary to explain the issue to the shareholders in this
Agenda 1.
Mr. Chulchit Bunyaketu further responded that the Agreement to Operate Cellular Telephone
Services between the Company and CAT did not provide any restriction on network upgrade.
Therefore, the Company was of the opinion that it could upgrade its existing network to 3G
network using the 850 MHz frequency band, which was the frequency that was already allocated
to the Company. Nevertheless, the Company still had not received approval from CAT to provide
3G services using the 850 MHz frequency band commercially. Such delay affected the Company
and its shareholders who were its stakeholders. Therefore, the Company convened this Meeting
to explain to its shareholders of the problems and obstacles, and the Company’s course of action
in such matter.
Mr. Jon Travis Eddy added and Mr. Wansit Saiyawan translated his response in summary that
the Company had been operating businesses with CAT for 18 years. In the past, the Company
had paid revenue share of more than THB 100,000 million to CAT. The commercial provision of
3G services using the 850 MHz frequency band would mutually benefit the Company and CAT,
subscribers and all shareholders. The Company sincerely hoped for a successful negotiation
with CAT regarding such matter.
There were no further questions or comments from the shareholders.
This Agenda was for the Meeting’s acknowledgement. Therefore, the shareholders were not
required to vote. The Chairman concluded that the Meeting acknowledged the progress of the
Company’s HSPA upgrade or 3G network upgrade using the 850 MHz frequency band under the
Agreement to Operate Cellular Telephone Services.
Item 2
Approval / ratification of the lawsuit filed by the Company against CAT Telecom
Public Company Limited and its Board of Directors on 25 April 2011 before the
Central Administrative Court with a view to protecting the interests of the Company’s
shareholders, consumers and its relevant stakeholders
The Chairman informed the Meeting that the Company had filed a complaint against CAT and
its Board of Directors on 25 April 2011 before the Central Administrative Court, requesting the
Court to revoke CAT’s Board of Directors’ resolution approving the entry into HSPA agreements
with True Corporation Public Company Limited Group (“True Group”) (the “HSPA agreements”)
and to order CAT to cancel the HSPA agreements and not to undertake any obligations under
the HSPA agreements as the entry into the HSPA agreements had not been in compliance
with a number of legislations, namely Section 46 of the Frequency Act B.E. 2553 (2010) (the
“Frequency Act”), the State-Private Participation Act B.E. 2535 (1992) (the “State-Private
Participation Act”) and the relevant competition laws requirements.
In addition, the Company also requested the Court to issue a suspension or injunction order
requiring CAT to refrain from undertaking its obligations under the HSPA agreements in relation
to the upgrading of the HSPA network until the Court reached its final judgment or ordered
otherwise.
The Company had filed the complaint because the entry into the HSPA agreements was
“unlawful” and such unlawfulness affected the Company’s and the public’s interests. The
Company was of the view that the entry into the HSPA agreements was discriminatory as the
Company was precluded from CAT’s 3G auction process as CAT had never conducted a public
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auction under the State-Private Participation Act. In addition, the reseller arrangement required
CAT to sell at least 80 per cent. of its network capacity to True Group (i.e. Real Move Co., Ltd.)
and further precluded CAT from selling the remaining 20 per cent. to operators with significant
market power, such as the Company and Advanced Info Service Public Company Limited.
In addition, the entry into the HSPA agreements affected the public’s interests as it could lead
to a monopoly on a wireless broadband market which would be bad for the consumers resulting
in an uneven level playing field, and destroying the telecommunication system that was moving
towards the licensing requirement. The state would also suffer losses from the entry into the
HSPA agreements as the value of the 850 MHz frequency band was not taken into account for
the entry into the HSPA agreements. Furthermore, both CAT and its Board of Directors should
act as a good precedent in complying with the relevant laws.
Given that the losses of the affected parties could not be restored if the HSPA agreements would
subsequently be cancelled, the Company considered that it would be in the best interests of the
Company and the affected parties that any actions under the HSPA agreements be suspended
now.
On 19 May 2011, the Company marked an important step forward for the Thai
telecommunications industry. The Court had accepted the Company’s complaint on the
illegality of CAT’s Board of Directors’ resolution approving the entry into the HSPA agreements.
The Court, however, did not accept the Company’s complaint on the cancellation of the HSPA
agreements, etc. As a result, the Court did not accept the Company’s request for an injunction
order, which was aimed to restrain widespread damages to the Thai telecommunications
industry.
The Company was, currently, determining its next course of action.
In this regard, the Company would like its shareholders’ support by approving / ratifying the
management decision to file and pursue the complaint against CAT and its Board of Directors
regarding the entry into the HSPA agreements for the purpose of protecting the Company, its
shareholders and all stakeholders in the Thai telecommunications industry, Thai consumers
and the State’s interests, and ultimately, for the lawful and sustainable development of the Thai
telecommunications industry.
The Company’s action against CAT and its Board of Directors regarding the entry into the HSPA
agreements itself was not a solution for the current dead-lock in the Thai telecommunications
industry. The Company believed that the auction of the 3G licence using the 2.1 GHz frequency
band, which would effectively start the licensing regime where all operators would compete
under the same rules and regulations, would be a long term solution for all. As such, the
Company urged the NBTC, once formed, to conduct the auction of the 3G licence using the 2.1
GHz frequency band without delay.
Mr. Thong-in Saeng-ngarm, a shareholder, asked about the illegality of the HSPA agreements.
He commented that CAT could enter into the HSPA agreements or proceed with the procurement
under the Regulation of the Office of the Prime Minister on Procurement.
Mrs. Veeranuch Kamolyabutr and Mr. Soonthorn Pokachaiyapat responded, in summary, that the
State-Private Participation Act stipulated that prior to entering into any co-investment agreement
allowing a private undertaking to take benefit of the state’s property having a value in excess
of THB 1 billion, a state-owned enterprise must seek cabinet approval in accordance with the
procedure prescribed by the State-Private Participation Act, including an invitation to private
undertakings to participate and an appointment of a committee to select a private undertaking
to participate. The Company was of the opinion that the entry into the HSPA agreements was
a type of such co-investment agreement because CAT allowed only one private undertaking
to use the 850 MHz frequency band, a state’s property, by way of profit sharing and the NBTC
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estimated the 850 MHz frequency band to be worth two to three times more than the 2.1
GHz frequency band. The value of such co-investment agreement would, therefore, certainly
far exceed THB 1 billion. As a result, the entry into the HSPA agreements had to be done in
accordance with the State-Private Participation Act in addition to complying with the Regulation
of the Office of the Prime Minister on Procurement.
In addition, Section 46 of the Frequency Act stipulated that a licensee to use the frequency
to operate a telecommunication business must operate such business him/herself, and cannot
authorise, whether wholly or partly, or allow another person to operate such business on his/her
behalf. The objective of the provision was to prevent a person who had no capability or intention
to operate the telecommunication business from making profit of the frequency.
In addition, the Company was of the opinion that the HSPA agreements contains terms
and conditions which gave rise to uneven level playing field for operators in the Thai
telecommunication industry. This was because CAT allowed True Group to use the 850 MHz
frequency band with an agreement to pay compensation, as appeared in the newspaper, for a
period of 14.5 years in the total amount of THB 14,000 million, which was rather low comparing
with the value of the 850 MHz frequency band mentioned above. As a result, True Group would
have low operating costs, causing other operators, including the Company, to be at a significant
competitive disadvantage, which would eventually lead to a monopoly of the market in the future.
Mrs. Karuna Aksarawut, a shareholder, commented that the shareholders should ratify the filing
of the lawsuit undertaken by the management of the Company, and enquired how much the
legal costs were. In addition, Mrs. Karuna Aksarawut suggested that the Company cooperate
with Advanced Info Service Public Company Limited (“AIS”) in filing the lawsuit because AIS, as
a major operator, was also likely to suffer damages.
In addition, a proxy of Ms. Sawitri Saengchansomporn questioned whether CAT was a private
company or a state-owned enterprise, and whether it was an operator or a regulator, and
whether the frequency which CAT gave to Hutchison CAT Wireless Multi-Media Ltd. and later
to True Group was CAT’s property, in order to consider whether the Company has the right to
file the lawsuit against CAT and its Board of Directors. Furthermore, the proxy of Ms. Sawitri
Saengchansomporn commented that the Company should also consider the impact on the
Company and its financial statements should there be a countersuit.
The Chairman responded that CAT was a state-owned enterprise, of which the Ministry
of Finance was the major shareholder. Originally, CAT was a regulator. However, after the
establishment of the National Telecommunications Commission (NTC) or the NBTC, CAT was
merely an operator but still had the status of a state-owned enterprise. The frequency that CAT
gave to True Group was the state’s property.
Mr. Jon Travis Eddy further responded and Mr. Wansit Saiyawan translated his response
in summary that the objective of the Company’s filing of the lawsuit was to protect the
interests of the shareholders. The Company wished for Thailand to have a stable and clear
regulatory system in order to protect the shareholders’ and the Company’s investment in
the telecommunications industry in the long run. Furthermore, the entering into the HSPA
agreements would cause the state to lose its revenue, and would have a negative impact on the
overall Thai telecommunications industry and the country.
Mrs. Veeranuch Kamolyabutr added that currently the Company was considering its next course
of action, which included an appeal to the Supreme Administrative Court on the Court’s rejection
of the Company’s complaint. The lawsuit’s objective was to protect the right of the shareholders
and the interest of the Company; therefore, the legal expenses were incomparable to the
damages that the shareholders or the Company would suffer. Nevertheless, the Company was
monitoring the legal expenses in such matter. Furthermore, the decision to file a lawsuit was
under the discretion of the Board of Directors and the management of each company. The
Company could not intervene in AIS’s decision on such matter.
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Mr. Supoj Uea-chailertkul commented that all operators should disclose details of their
concession agreements to the public. He also asked whether it was possible for the Company
to request the Court to order CAT to disclose the HSPA agreements. In addition, Mr. Supoj
Uea-chailertkul also asked whether the Company would withdraw the lawsuit if CAT allowed the
Company to jointly operate the 3G network using the 850 MHz frequency band in the same
manner as True Group.
Mrs. Veeranuch Kamolyabutr responded that the Company, as a party to the case, had already
received a copy of some of the HSPA agreements from the Court. However, the Company could
not disclose such agreements to the shareholders. Nevertheless, shareholders could request
for a copy of such agreements from CAT, which was a state agency according to the Official
Information Act B.E. 2540 (1997), directly.
The Chairman added that, at present, the Company could not provide an answer on its course
of action should CAT allow the Company to jointly operate the 3G network using CAT’s 850 MHz
frequency band in the same manner as True Group.
Mr. Surapol Srangsomwong further added, and explained details of the lawsuit in the capacity as
a lawyer of the case, that the filing of the lawsuit was a presentation of the facts for the Court’s
consideration whether there was an action which the Company believed to be unlawful. The
Court would then consider whether such an action was unlawful. Neither CAT nor its Board of
Directors could file a countersuit against the Company, and the shareholders would not have any
legal obligations with respect to this lawsuit. In addition, the Court did not accept the Company’s
petition of certain allegations because the Court was of the opinion that the Company could
file a lawsuit requesting the Court to revoke CAT’s Board of Directors’ resolution approving the
entry into the HSPA agreements. However, the Company, which was a third party, could not file
a lawsuit requesting the court to order CAT to cancel the HSPA agreements entered into by the
parties pursuant to such resolution. If the Company suffered damages as a result of the entry
into the HSPA agreements, the Company could file a claim for damages as a result thereof.
A proxy of Ms. Sawitri Saengchansomporn enquired about the amount of damages the Company
would claim if it won the case, the impact on the Company’s future cash flow if it were to provide
3G services using the 850 MHz frequency band, and the Company’s next course of action if it
were to lose the case.
Mrs. Veeranuch Kamolyabutr responded that, as mentioned above, the Court’s decision
regarding the entry into the HSPA agreements was not the solution to the current problem in
Thai telecommunications industry. The Company wished to see a free and fair competition in
order for all operators to compete fairly and equally under the licensing regime.
Mr. Jon Travis Eddy further explained and Mr. Wansit Saiyawan translated his explanation in
summary that the HSPA upgrade or 3G network upgrade using the 850 MHz frequency band
was already factored in the Company’s budget. Therefore, the Company did not expect it to have
any impact on the Company’s cash flow in the near future. However, the entry into the HSPA
agreements between CAT and True Group might have an impact on the Company in the long run
because the Company might found itself in an unfair and unequal competition, with higher costs
of operation, which might eventually have an impact on the Company’s revenue and cash flow.
Mr. Thara Chonpranee, a shareholder, commented that the Company should provide details of
the Court’s order or the progress of the case to the shareholders for consideration before the
Meeting. He also proposed that the resolution of this Agenda be passed to approve and ratify
the filing of the lawsuit and actions taken thereafter against CAT and its Board of Directors, as
well as any further actions to be taken in relation thereto as the Company deemed appropriate.
Assoc. Prof. Wanpen Tabtimtong further commented that the Company should provide
documents prepared by the Thailand Development Research Institute (TDRI), which was a third
party that had studied details of such matter, to the shareholders for better understanding.
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Ms. Maliwan Jitreeyatitham, a shareholder, asked whether the expense of the lawsuit would
affect the dividend payment, and whether or not the Company could provide 3G services using
the 850 MHz frequency band during the lawsuit.
The Chairman responded that the lawsuit would not affect the Company’s dividend payment,
and currently the Company had already been testing the 3G services on the 850 MHz frequency
band but had not yet provide commercial services.
Mr. Jon Travis Eddy further responded and Mr. Wansit Saiyawan translated his response in
summary that, the lawsuit and the provision of 3G services using the 850 MHz frequency band
were different matters. Currently, the Company was negotiating with CAT and the NBTC for
approval to provide 3G services using the 850 MHz frequency band commercially as mentioned
in Agenda 1 and the Court process would take quite a period of time.
There were no further questions or comments from the shareholders.
The Chairman proposed that Meeting consider and approve / ratify the filing of the lawsuit
and actions taken thereafter, by the Company against CAT and its Board of Directors on 25
April 2011 before the Central Administrative Court, and any further actions to be taken by the
Company in relation thereto.
The Meeting considered and voted as follows:
Approved:
1,650,746,629 shares, representing approximately 90.37 per cent. of
the total shares held by the shareholders who attended the Meeting
and were entitled to vote
Disapproved:
62,216 shares, representing approximately 0.00 per cent. of the total
shares held by the shareholders who attended the Meeting and were
entitled to vote
Abstained:
175,553,545 shares, representing approximately 9.61 per cent. of the
total shares held by the shareholders who attended the Meeting and
were entitled to vote
Invalid ballots:
280,200 shares, representing approximately 0.02 per cent. of the total
shares held by the shareholders who attended the Meeting and were
entitled to vote.
Resolutions: The Meeting approved / ratified, with a majority vote of the shareholders who
attended the Meeting and were entitled to vote, the filing of the lawsuit and actions taken
thereafter, by the Company against CAT and its Board of Directors on 25 April 2011 before the
Central Administrative Court, and any further actions to be taken by the Company in relation
thereto as proposed in all respect.
Item 3
Approval of the authorisation to the Company to act on behalf of minority shareholders
to obtain information in relation to the entering into the HSPA agreements between CAT
Telecom Public Company Limited and True Corporation Public Company Limited Group
The Chairman informed the Meeting that since a number of shareholders requested the
Company to act on behalf of the minority shareholders to obtain information in relation to the
entry into the HSPA agreements, the Company deemed it necessary to vote on such matter. In
this regard, the Chairman invited Mrs. Veeranuch Kamolyabutr to explain details of the voting
requirement.
Mrs. Veeranuch Kamolyabutr explained to the Meeting that the Public Limited Company Act
stipulated that shareholders holding not less than one-third of the total issued shares of the
Company may request the Meeting to consider additional matters other than those specified
in the notice of the Meeting. It appeared that there were shareholders holding not less than
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one-third of the total issued shares of the Company requesting an addition of another agenda
to consider and approve the authorisation to the Company to act on behalf of the minority
shareholders to obtain information in relation to the entry into the HSPA agreements. Therefore,
Mrs. Veeranuch Kamolyabutr concluded that the Meeting had approved the addition of
another agenda, and requested that the Meeting consider and approve such matter and if the
shareholders resolved, with majority votes, in favour of this proposed matter, the Company would
like to request shareholders, wishing to receive information regarding the entry into the HSPA
agreements, to provide their names and contact details to the Company’s staff.
There were no questions or comments from the shareholders.
The Meeting considered and voted as follows:
Approved:
1,786,485,276 shares, representing approximately 97.80 per cent. of
the total shares held by the shareholders who attended the Meeting
and were entitled to vote
Disapproved:
3,898,114 shares, representing approximately 0.21 per cent. of the total
shares held by the shareholders who attended the Meeting and were
entitled to vote
Abstained:
35,984,100 shares, representing approximately 1.97 per cent. of the
total shares held by the shareholders who attended the Meeting and
were entitled to vote
Invalid ballots:
275,100 shares, representing approximately 0.02 per cent. of the total
shares held by the shareholders who attended the Meeting and were
entitled to vote.
Resolutions: The Meeting approved, with a majority vote of the shareholders who attended
the Meeting and were entitled to vote, the authorisation to the Company to act on behalf
of the requested shareholders to obtain information in relation to the entering into the HSPA
agreements between CAT and True Group pursuant to the applicable laws.
The Chairman invited the shareholders to ask questions or comment before he declared the
Meeting adjourned.
There were no questions or comments from the shareholders.
The Chairman thanked the shareholders for attending the Meeting and sharing their valuable
views with the Company, and declared the Meeting adjourned.
The Meeting was adjourned at 12.30 hours.
Signed
-signature(Mr. Boonchai Bencharongkul)
Chairman of the Board
Signed
-signature(Mrs. Veeranuch Kamolyabutr)
Company Secretary
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Chairman of the Meeting