Exhibit 6
EXECUTION COPY
DATED 14 MARCH, 2005
--------------------
(1) CHINA NETCOM GROUP CORPORATION (BVI) LIMITED
AND
(2) CHINA NETCOM CORPORATION (BVI) LIMITED
AND
(3) CHINA NETWORK COMMUNICATIONS GROUP CORPORATION
AND
(4) PCCW LIMITED
_____________________________________________
DEED OF ASSIGNMENT
in relation to the Subscription Agreement
dated 19th January, 2005
_____________________________________________
Xxxxxxxxx and May
00xx Xxxxx, Xxxxxxx Xxxxx
Xxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxx Xxxx
(XXX/LHYY/VPM)
HK050320155
THIS DEED OF ASSIGNMENT is entered into on the 14th day of March, 2005
BETWEEN:-
(1) CHINA NETCOM GROUP CORPORATION (BVI) LIMITED, (the "Subscriber"), a
company incorporated in the British Virgin Islands and whose
registered office is at P.O. Box 3140, Wickhams Cay 1, Road Town,
Tortola, British Virgin Islands (Business registration number
341457);
AND
(2) CHINA NETCOM CORPORATION (BVI) LIMITED, (the "Alternate Subscriber"),
a company incorporated in the British Virgin Islands and whose
registered office is at P.O. Box 3140, Wickhams Cay 1, Road Town,
Tortola, British Virgin Islands (Business registration number
637903);
AND
(3) CHINA NETWORK COMMUNICATIONS GROUP CORPORATION, ("China Netcom"), a
state-owned enterprise established under the laws of the People's
Republic of China and whose registered office is at Block C, No. 156
Fuxingmen Nei Da Jie, Xi Cheng District, Beijing, People's Republic
of China;
AND
(4) PCCW LIMITED, (the "Company"), a company incorporated in Hong Kong
with limited liability and whose registered office is at 00xx Xxxxx,
XXXX Xxxxx, XxxXxx Xxxxx, 979 King's Road, Quarry Bay, Hong Kong.
WHEREAS:-
(A) The Subscriber, the Company and China Netcom entered into a
Subscription Agreement dated 19th January, 2005 pursuant to which the
Subscriber conditionally agreed to subscribe for 1,343,571,766 new
Shares in the Company at a price of HK$5.90 per Share (the
"Subscription Shares").
(B) Clause 4.4 of the Subscription Agreement entitles the Subscriber to
assign all of its rights under the Subscription Agreement (including
the right to subscribe for and be issued and allotted the
Subscription Shares at completion of the Subscription and the rights
and benefit of and to the Company Warranties) to a company which is
wholly-owned by the Subscriber.
(C) The Subscriber wishes to assign its rights, title and interest in, to
and under the Subscription Agreement to the Alternate Subscriber. The
Alternate Subscriber is wholly-owned by the Subscriber, which in turn
is wholly-owned by China Netcom.
NOW IT IS AGREED as follows:-
2. DEFINITIONS AND INTERPRETATION
2.1 In this Deed (including the Recitals):-
(A) capitalised words used but not defined in this Deed shall
bear the meanings given to them in the Subscription
Agreement; and
(B) rules of construction and interpretation set out in the
Subscription Agreement shall apply to this Deed.
2.2 In this Deed, unless otherwise specified:-
(A) references to clauses and sub-clauses are to clauses and
sub-clauses of this Deed; and
(B) headings to clauses and schedules are for convenience only
and do not affect the interpretation of this Deed.
3. ASSIGNMENT
3.1 With effect from the date of this Deed and in consideration of the
undertakings given by the Alternate Subscriber in clause 4 and the
Company in clause 5, the Subscriber hereby assigns all of its rights,
title and interest in, to and under the Subscription Agreement to the
Alternate Subscriber including:-
(A) the right to subscribe for the Subscription Shares at the
Subscription Price, free from Encumbrances on the terms and
subject to the conditions set out in the Subscription
Agreement;
(B) the benefit of the Company Warranties and all other
undertakings given by the Company to the Subscriber under
the Subscription Agreement.
3.2 Notwithstanding the provisions of sub-clause 3.1 and any other
provision of this Deed, the Subscriber agrees that it shall remain
liable for any breach by it of the Subscription Agreement, and shall
remain bound to perform and comply with all its covenants,
undertakings and obligations under the Subscription Agreement in the
event of breach of the Subscription Agreement by the Alternate
Subscriber (including, without limitation, the obligation to
subscribe for and pay for the Subscription Shares).
4. ALTERNATE SUBSCRIBER'S UNDERTAKINGS
4.1 With effect from the date of this Deed and in consideration of the
undertakings given by the Company in clause 5 and the Subscriber in
clause 6, the Alternate Subscriber hereby undertakes to observe,
perform, discharge and be bound by the Subscription Agreement as if
it were a party to the Subscription Agreement in the place of the
Subscriber (including, without limitation, the obligation to
subscribe for and pay for the Subscription Shares).
4.2 Notwithstanding the provisions of sub-clause 4.1, nothing in this
Deed shall:-
(A) require the Alternate Subscriber to perform any obligation
of the Subscriber created by or arising under the
Subscription Agreement falling due for performance, or which
should have been performed, before the date of this Deed; or
(B) make the Alternate Subscriber liable for any act, neglect,
default or omission in respect of the Subscription Agreement
committed by the Subscriber or occurring before the date of
this Deed.
5. THE COMPANY'S UNDERTAKINGS
5.1 With effect from the date of this Deed and in consideration of the
undertakings given by the Alternate Subscriber in clause 4 and the
Subscriber in clause 6, the Company hereby:-
(A) confirms its consent to and approval of the assignment of
the Subscriber's rights, title and interest in, to and under
the Subscription Agreement to the Alternate Subscriber
pursuant to clause 3 above;
(B) accepts the Alternate Subscriber's undertaking to observe,
perform, discharge and be bound by the Subscription
Agreement pursuant to clause 4 above;
(C) confirms that it has received the requisite written notice
required pursuant to clause 4.4 (B) of the Subscription
Agreement; and
(D) agrees to observe, perform, discharge and be bound by the
Subscription Agreement as if the Alternate Subscriber were a
party to and executed the Subscription Agreement in the
place of the Subscriber, including, without limitation,
undertaking to issue the Subscription Shares to the
Alternate Subscriber (rather than the Subscriber), but
subject to the other terms and conditions of the
Subscription Agreement.
5.2 Notwithstanding the provisions of sub-clause 5.1:-
(A) nothing in this Deed shall affect or prejudice any claim or
demand whatsoever which the Company may have against the
Subscriber in relation to the Subscription Agreement; and
(B) nothing in this Deed shall affect or prejudice any claim or
demand whatsoever which the Company may have against the
Subscriber under the Subscription Agreement in the event
that the Alternate Subscriber is in breach of its
obligations under this Deed and/or the Subscription
Agreement (including, without limitation, the obligation to
subscribe for and pay for the Subscription Shares).
6. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS OF THE
SUBSCRIBER AND THE ALTERNATE SUBSCRIBER
6.1 Subscriber
The Subscriber hereby undertakes, represents and warrants to the
Company as follows:-
(A) It is the legal and beneficial owner of the whole of the
issued share capital of the Alternate Subscriber.
(B) China Netcom is the legal and beneficial owner of the whole
of the issued share capital of the Subscriber, and the
Subscriber is the legal and beneficial owner of all the
issued shares in CNC HK held by the CNC Group.
6.2 Alternate Subscriber
The Alternate Subscriber hereby undertakes, represents and warrants
to the Company:-
(A) As at the date of this Deed it has (subject to the obtaining
by China Netcom of the approval of the PRC State Council),
and on the Completion Date it will have, the full right,
power and authority to enter into, and to perform its
obligations under, this Deed and this Deed constitutes its
legal, valid and binding obligations enforceable in
accordance with its terms.
(B) As at the date of this Deed it has (subject to the obtaining
by China Netcom of the approval of the PRC State Council),
and on the Completion Date it will have, obtained all
governmental, regulatory or similar consents required from
any Authority, authorities, approvals and permissions
required to enter into, and to perform its obligations
under, this Deed and there are no regulatory or
administrative obstacles to the remittance of the
Subscription monies to the Company in Hong Kong in
accordance with the terms of this Deed and the Subscription
Agreement.
(C) The Subscriber is the legal and beneficial owner of the
whole of the issued share capital of the Alternate
Subscriber, and no person has any outstanding warrant,
option, pre-emptive right or any other right of any
description to require shares to be allotted or issued by
the Alternate Subscriber.
(D) The execution, delivery and performance by it of this Deed
does not and will not result in a material breach of any
provision in its memorandum or articles of association or
other constitutional documents.
(E) No order has been made and no resolution has been passed for
the winding up of the Alternate Subscriber or for a
provisional liquidator to be appointed in respect of it and
no petition has been presented and no meeting has been
convened for the purposes of winding up the Alternate
Subscriber.
(F) No administration order has been made and no petition for
such an order has been presented in respect of the Alternate
Subscriber.
(G) No receiver (which expression shall include an
administrative receiver) has been appointed in respect of
the Alternate Subscriber.
(H) The Alternate Subscriber is not insolvent or unable to pay
its debts and has not stopped paying its debts as they fall
due.
(I) No event analogous to any described in paragraphs (E) to (H)
has occurred in or outside the British Virgin Islands with
respect to the Alternate Subscriber.
(J) Under the laws of the British Virgin Islands, neither the
Alternate Subscriber nor any of its properties, assets or
revenues are entitled to any right of immunity on the
grounds of sovereignty from any legal action, suit or
proceedings, from set-off or counter claim, from the
jurisdiction of any court or arbitral tribunal, from service
of process, from attachment prior to or in aid of execution
of judgment or arbitral award, or from other legal process
or proceedings for the giving of any relief or for the
enforcement of any judgment or arbitral award.
(K) Neither the Alternate Subscriber nor any of its directors or
Principal Officers, is a Disqualified Person.
6.3 Repetition of Subscriber/Alternate Subscriber Warranties, etc
(A) The representations and warranties set out in clauses 6.1
and 6.2 are given as at the date hereof and shall be deemed
to be repeated by the Subscriber and the Alternate
Subscriber respectively on the Completion Date as if given
or made on such date, with reference in each case to the
facts and circumstances then subsisting.
(B) Each of the Subscriber and the Alternate Subscriber
undertakes to disclose in writing to the Company anything
which will be or is reasonably likely to be a breach of any
of the representations and warranties set out in clauses 6.1
and 6.2 on and as at the Completion Date promptly after such
thing comes to its notice both prior to and on the
Completion Date. Each of the Subscriber and the Alternate
Subscriber agrees promptly to provide such information as
may be reasonably requested by the Company, from the date
hereof until the Completion Date, in order to enable the
Company to assess whether a breach of any representations
and warranties set out in clauses 6.1 and 6.2 will occur on
the Completion Date.
7. CHINA NETCOM GUARANTEE
7.1 Guarantee Obligations
In consideration of the Company entering into this Deed at the
request of China Netcom (as China Netcom hereby acknowledges), China
Netcom shall as primary obligations of it:
(A) procure that the Alternate Subscriber shall duly observe and
perform all its obligations owed to the Company under this
Deed and the Subscription Agreement or any other agreement
entered pursuant or ancillary to such documents;
(B) if and whenever the Alternate Subscriber shall be in default
in the payment when due of any amount payable to the Company
under this Deed and/or the Subscription Agreement or any
other agreement entered into pursuant or ancillary to such
documents and within two Business Days after being given
notice to that effect by the Company, pay to the Company all
amounts then so payable by the Alternate Subscriber to the
Company as though China Netcom instead of the Alternate
Subscriber was expressed to be the principal debtor; and
(C) indemnify the Company against all costs and expenses
(including legal fees) which the Company may pay or incur in
collecting any amount payable by the Alternate Subscriber or
China Netcom and referred to in clause 7.1(B).
7.2 Indemnity
Any amount not paid by the Alternate Subscriber and not recoverable
from China Netcom on the basis of a guarantee (whether because of any
legal limitation, disability or incapacity on the part of the
Alternate Subscriber or any other matter or thing whether known to
the Company or not) shall nevertheless be recoverable from China
Netcom on the basis of an indemnity.
7.3 Indulgence etc.
(A) China Netcom acknowledges that its liability under this
clause 7 shall not be discharged or affected in any way by
time being given to the Alternate Subscriber or by any other
indulgence or concession being granted to the Alternate
Subscriber or by any other act, omission, dealing, matter or
thing whatsoever (including without limitation any change in
the constitution of the Alternate Subscriber or China
Netcom, any amendment to this Deed and/or the Subscription
Agreement or any such other agreement entered pursuant or
ancillary hereto or the liquidation, dissolution,
reconstruction or amalgamation of the Alternate Subscriber
or China Netcom or the illegality or unenforceability of
this Deed or such other agreement) which but for this
provision might operate to release China Netcom from its
obligations under this clause 7.
(B) China Netcom acknowledges and agrees that its liability
under clause 10 of the Subscription Agreement shall not be
discharged or affected in any way by the assignment by the
Subscriber of its rights, title and interest in, to and
under the Subscription Agreement to the Alternate Subscriber
pursuant to this Deed.
7.4 Continuing Guarantee
The guarantee contained in this clause 7 is a continuing guarantee
and shall remain in full force and effect until all obligations of
the Alternate Subscriber hereby guaranteed have been discharged in
full. It is in addition to and shall not prejudice nor be prejudiced
by any other guarantee, indemnity or other security or right against
any third party which the Company may have for the due performance of
the obligations concerned.
8. WAIVER OF IMMUNITY
8.1 Immunity
It is acknowledged that the status of China Netcom in the PRC may
afford it certain protections and immunities not available to
entities wholly independent of any state body in the PRC and China
Netcom has therefore agreed to waive such protections and immunities
as set out below.
8.2 Waiver
China Netcom irrevocably and unconditionally agrees with the Company
that in respect of any proceedings brought against China Netcom or
its assets by the Company in relation to this Deed or any other
agreement entered into pursuant to or as a result of this Deed:
(A) no immunity from those proceedings (including, without
limitation, suit, attachment prior to judgement, other
attachment, the obtaining of any judgement, execution or
other enforcement, or the enforcement and execution of any
award rendered by an arbitral tribunal constituted pursuant
to this Deed) will be claimed by or on behalf of itself or
with respect to its assets;
(B) China Netcom shall (and hereby) waives any such right of
immunity which it or its assets now has or may subsequently
acquire; and
(C) China Netcom consents generally in respect of any such
proceedings to the giving of any relief or the issue of any
process in connection with those proceedings, including,
without limitation, the making, enforcement or execution
against any assets whatsoever (irrespective of its use or
intended use) of any order or judgement which may be made or
given in those proceedings or of any award rendered by an
arbitral tribunal constituted pursuant to this Deed.
9. CHOICE OF GOVERNING LAW
9.1 This Deed shall be governed by and construed in accordance with the
laws of England for the time being in force.
10. ARBITRATION
10.1 Any dispute, controversy or claim arising out of or in connection
with this Deed, including any question regarding its existence,
validity or termination, shall be referred to and finally resolved by
arbitration under the LCIA Rules, which Rules are deemed to be
incorporated by reference into this clause. The arbitration
commission shall be the LCIA.
10.2 The number of arbitrators shall be three.
10.3 The seat of the arbitration shall be London.
10.4 The language to be used in the arbitral proceedings shall be English.
10.5 By agreeing to arbitration pursuant to this clause, the Parties waive
irrevocably their right to any form of appeal, review or recourse to
any state court or other judicial authority, insofar as such waiver
may validly be made. In particular, no Party may apply to the court
to determine any question of law arising in the course of the
arbitration pursuant to section 45 of the Arbitration Xxx 0000 or
otherwise, and no Party may appeal to the court on a question of law
arising out of an award made in the arbitration pursuant to section
69 of the Arbitration Xxx 0000 or otherwise.
10.6 The Parties shall have the right to seek interim injunctive relief
from a court of competent jurisdiction, both before and after the
arbitrators have been appointed, at any time up until the arbitrators
have made the final award.
11. CONTRACTS (RIGHTS OF THIRD PARTIES) XXX 0000
11.1 No person who is not for the time being a Party to this Deed shall
have any right under the Contracts (Rights of Third Parties) Xxx 0000
to enforce any term of this Deed.
12. COUNTERPARTS
12.1 This Deed may be executed in any number of counterparts, which shall
together constitute one deed. Any Party may enter into this Deed by
signing any such counterpart.
13. WHOLE AGREEMENT
13.1 This Deed, together with any documents referred to in it, constitutes
the whole agreement between the Parties relating to its subject
matter and supersedes and extinguishes any prior drafts, agreements,
and undertakings, whether in writing or oral, relating to such
subject matter, except to the extent that the same are repeated in
this Deed.
13.2 Each of the Parties acknowledges that it has not been induced to
enter into this Deed by any representation, warranty, promise or
assurance by any of the others or any other person save for those
contained in this Deed.
14. VARIATIONS
14.1 No variation of this Deed shall be effective unless made in writing
and signed by each of the Parties to this Deed.
14.2 No variation of the Subscription Agreement after the execution of
this Deed shall be effective unless made in writing and signed by
each of the Parties to this Deed.
14.3 The Company, the Subscriber and China Netcom each undertake and
confirm to each other and to the Alternate Subscriber that there has
been no variation or amendment of the Subscription Agreement (whether
oral, written or otherwise) prior to the execution this Deed, and
each of them agree and acknowledge that the Subscription Agreement in
the form annexed to this Deed and marked "A" for the purposes of
identification constitutes the whole and only agreement between them
relating to the subscription of, and issue and allotment of the
Subscription Shares.
15. FURTHER ASSURANCE
15.1 At any time after the Completion Date every Party hereto shall, at
the request of any other Party and at such requesting Party's cost,
execute or procure the execution of such documents and do or procure
the doing of such acts and things as the requesting Party may
reasonably require for the purpose of vesting in the requesting Party
or its permitted assignees the full benefit of all its rights in this
Deed.
16. COSTS
16.1 Each Party shall bear its own costs arising out of or in connection
with the preparation, negotiation and implementation of this Deed.
17. DEED BINDING AND ASSIGNMENT
17.1 This Deed shall be binding on and enure for the benefit of each
Party's respective successors and permitted assigns. No Party shall
assign any of its rights under this Deed (all of which shall be
incapable of assignment) or purport to do so without the prior
written consent of the other Parties.
18. WAIVER
18.1 No failure or delay by any Party in exercising any right, power or
remedy under this Deed shall operate as a waiver thereof, nor shall
any single or partial exercise of the same preclude any further
exercise thereof or the exercise of any other right, power or remedy.
Without limiting the foregoing, no waiver by any Party of any breach
of any provision hereof shall be deemed to be a waiver of any
subsequent breach of that or any other provision hereof.
19. INVALIDITY AND SEVERANCE
19.1 If any provision of this Deed shall be held to be illegal, void,
invalid or unenforceable under the laws of any jurisdiction, the
legality, validity and enforceability of the remainder of this Deed
in that jurisdiction shall not be affected, and the legality,
validity and enforceability of the whole of this Deed in any other
jurisdiction shall not be affected.
20. NOTICES
20.1 Any notice (which term shall in this clause include any other
communication) required to be given under this Deed or in connection
with the matters contemplated by it shall, except where otherwise
specifically provided, be in writing in the English language.
20.2 Any such notice shall be addressed as provided in sub-clause 20.3 and
may be:
(A) personally delivered, in which case it shall be deemed to
have been given upon delivery at the relevant address; or
(B) if within Hong Kong, sent by pre-paid post, in which case it
shall be deemed to have been given two Business Days after
the date of posting; or
(C) if from or to any place outside Hong Kong, sent by pre-paid
airmail, in which case it shall be deemed to have been given
seven Business Days after the date of posting; or
(D) sent by facsimile, in which case it shall be deemed to have
been given when despatched, subject to confirmation of
uninterrupted transmission by a transmission report provided
that any notice despatched by facsimile after 5:00 p.m. on
any day shall be deemed to have been received at 9:00 a.m.
on the next Business Day.
20.3 The addresses and other details of the Parties referred to in
sub-clause 20.2 are, subject to sub-clause 20.4:
If to the Subscriber, the Alternate Subscriber or China Netcom, to:
China Netcom Group Corporation (BVI) Limited
59/F, Bank of Xxxxx Xxxxx,
0 Xxxxxx Xxxx,
Xxxx Xxxx
Facsimile: x000 0000 0000
Attention: Wang Chuanbao
If to the Company, to:
PCCW Limited
00xx Xxxxx, XXXX Xxxxx,
XxxXxx Xxxxx,
000 Xxxx'x Xxxx,
Xxxxxx Xxx,
Xxxx Xxxx
Facsimile: x000 0000 0000
Attention: The Company Secretary
20.4 Any Party may notify the other Parties of any change to the address
or any of the other details specified in sub-clause 20.3, provided
that such notification shall only be effective on the date specified
in such notice or five Business Days after the notice is given,
whichever is later.
IN WITNESS WHEREOF this Deed has been duly executed as a deed by the parties
on the date first above written.
EXECUTED as a Deed by ) /s/ Zhang Chunjiang
CHINA NETCOM GROUP CORPORATION (BVI) LIMITED )
was affixed in the presence of:- )
)
EXECUTED as a Deed by ) /s/ Zhang Chunjiang
CHINA NETCOM CORPORATION (BVI) LIMITED )
in the presence of:- )
)
EXECUTED as a Deed by ) /s/ Zhang Chunjiang
CHINA NETWORK COMMUNICATIONS GROUP CORPORATION )
in the presence of:- )
)
The Common Seal of ) /s/ Alexander Xxxxxxx Xxxxx
PCCW LIMITED )
was affixed in the presence of:- )
