EXHIBIT 10.84
27 SEPTEMBER 2004
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS
INTERNATIONAL LIMITED
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS
INVESTMENT HOLDINGS LIMITED
▇▇▇▇▇▇▇ ▇▇▇▇▇ (ASIA) L.L.C.
THE HONG KONG UNDERWRITERS
NAMED IN SCHEDULE 1 HERETO
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HONG KONG
UNDERWRITING AGREEMENT
RELATING TO
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS
INTERNATIONAL LIMITED
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[LOGO OF FRESHFIELDS BRUCKHAUS ▇▇▇▇▇▇▇▇]
Exhibit 10.84
THIS AGREEMENT is made on 27 September 2004
BETWEEN:
(1) ▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS INTERNATIONAL LIMITED, a company
incorporated in the Cayman Islands with limited liability whose
registered office is at Century Yard, Cricket Square, ▇▇▇▇▇▇▇▇ Drive,
▇▇▇▇▇▇ Town, Grand Cayman, Cayman Islands (the Company);
(2) ▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS INVESTMENT HOLDINGS LIMITED, a company
incorporated in the British Virgin Islands whose registered office is at
P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola,
British Virgin Islands (the Selling Shareholder);
(3) ▇▇▇▇▇▇▇ SACHS (ASIA) L.L.C., whose place of business in Hong Kong is at
▇▇/▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇▇
Sachs); and
(4) EACH OF THE HONG KONG UNDERWRITERS whose respective names and addresses
are set out in Schedule 1 (together, the Hong Kong Underwriters and
individually, a Hong Kong Underwriter).
WHEREAS:
(A) The Company was incorporated in the Cayman Islands on 17 March 2004,
with the registration number CT-133883.
(B) The Company submitted a valid application (together with all necessary
supporting documents) to the Registrar of Companies in Hong Kong to be
registered as an oversea company in Hong Kong under Part XI of the
Companies Ordinance and has been registered accordingly since 20 May
2004.
(C) As at the date of this Agreement, the Company has an authorized share
capital of HK$2,500,000,000.00 and US$10,000.00 divided into
10,000,000,000 Shares of HK$0.25 each and 1,000,000 Preference Shares of
US$0.01 each, of which 4,500,000,000 Shares have been allotted and
issued fully paid up or credited as fully paid.
(D) As at the date hereof, the Selling Shareholder is the sole registered
and beneficial owner of all of the issued Shares (save for those Shares
to be transferred pursuant to the DoCoMo Acquisition). The Selling
Shareholder is a wholly-owned subsidiary of HWL.
(E) At meetings of the board of Directors held on 30 August 2004 and 17
September 2004, resolutions were passed pursuant to which, inter alia,
Directors were authorized to agree and sign on behalf of the Company
this Agreement and all the other relevant documents in connection with
the Global Offering.
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(F) An application has been made to the Hong Kong Stock Exchange for the
listing of, and permission to deal in, the Shares and to the New York
Stock Exchange for the listing of the ADSs by way of an offer for sale
comprising:
(i) the Hong Kong Public Offering;
(ii) the Preferential Offering; and
(iii) the International Offering.
(G) The Selling Shareholder is expected to grant to ▇▇▇▇▇▇▇ ▇▇▇▇▇ for and on
behalf of the International Underwriters an Over-Allocation Option to
require the Selling Shareholder to sell up to an aggregate of 11,550,000
ADSs (representing 173,250,000 additional Shares) to cover
over-allocations in connection with the International Offering.
(H) The Company has appointed ▇▇▇▇▇▇▇ Sachs to sponsor the Company in
relation to the application to the Hong Kong Stock Exchange for the
listing of and granting of permission to deal in the Shares.
(I) ▇▇▇▇▇▇▇ ▇▇▇▇▇ has agreed to act as sponsor and global coordinator, and
the Hong Kong Underwriters have agreed to underwrite the Initial Public
Offer Shares, subject to and on the conditions of this Agreement and in
reliance upon the representations, warranties and undertakings given to
▇▇▇▇▇▇▇ Sachs and the Hong Kong Underwriters as set out in this
Agreement.
NOW IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement (including the recitals and the Schedules), the
following expressions shall, unless the context otherwise requires, have the
following meanings:
Acceptance Date means 6 October 2004 being the date on which the application
lists for the Hong Kong Offer Shares will close as stated in the section headed
"How to Apply for Hong Kong Offer Shares and Reserved Shares" in the Hong Kong
Prospectus (or such other later date as such application lists may close as
stated in the Hong Kong Prospectus and the Application Forms);
ADRs means American Depositary Receipts to be issued pursuant to the Deposit
Agreement;
ADSs means American Depositary Shares, each representing ownership of 15 Shares;
affiliate means in relation to a particular company, any company or other entity
which is its holding company or subsidiary, or any subsidiary of its holding
company or which directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the company
specified. For the purposes of this definition the term "control" (including the
terms "controlling," "controlled by" and "under common control with") means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies
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of a person, whether through the ownership of voting securities, by contract, or
otherwise;
Agreement Among Hong Kong Underwriters means the agreement to be entered into
between the Hong Kong Underwriters and ▇▇▇▇▇▇▇ ▇▇▇▇▇ on the date hereof;
Aircel means Aircel Limited and Aircel Cellular Limited, each incorporated with
limited liability under the Companies Act of India;
Aircel Accounts means the audited results of Aircel for each of the financial
years ended 31 March 2001, 2002 and 2003;
Aircel Reporting Accountants means ▇▇▇▇▇▇▇ ▇▇▇▇, Hong Kong, Certified Public
Accountants;
Application Forms means the Hong Kong Application Forms and the Preferential
Offering Application Forms;
Approval means any consent, approval, authorization, sanction, permission,
order, franchise, registration, filing, clearance, qualification, licence,
permit, certificate or declaration;
Articles of Association means the articles of association of the Company;
Banking Day has the meaning ascribed to it in the Receiving Bankers' Agreement;
Branch Registrar's Agreement means the agreement between the Branch Share
Registrar and the Company in the agreed form;
Branch Share Registrar means Computershare Hong Kong Investor Services Limited;
Brokerage means brokerage at the rate of 1 per cent. of the aggregate Offer
Price in respect of all the Hong Kong Offer Shares and Reserved Shares, payable
to members of the Hong Kong Stock Exchange and the Hong Kong Underwriters (as
the case may be) pursuant to the Hong Kong Public Offering;
Business Day means any day (excluding a Saturday) on which licensed banks
generally are open for business in Hong Kong;
CCASS means the Central Clearing and Settlement System established and operated
by Hongkong Clearing;
Claw Back Shares means the International Offer Shares withdrawn from the
International Offering and made available as an additional part of the Hong Kong
Offer Shares for purchase pursuant to the Hong Kong Public Offering pursuant to
clauses 3.5 and 3.7;
Closing means the time when payment is to be made under clause 7.1, after the
Conditions have been fulfilled and/or waived in accordance with this Agreement,
which is expected to be 8:00 a.m. on 15 October 2004 or otherwise as agreed
between
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the Selling Shareholder and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (on behalf of the Hong Kong
Underwriters);
Companies Ordinance means the Companies Ordinance (Chapter 32 of the Laws of
Hong Kong);
Company Accounts means the combined audited results of the Company and its
subsidiaries for each of the financial years ended 31 December 2001, 2002 and
2003 and for the six months ended 30 June 2003 and 2004 (together with the notes
thereto);
Conditions means the conditions set out in clause 2.1;
Deposit Agreement means the deposit agreement expected to be entered into among
the Company, the Depositary and all holders from time to time of the ADRs;
Depositary means Citibank, N.A. of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ of America, as issuer and depositary in relation to the ADSs;
Directors means the directors of the Company;
DoCoMo Acquisition means the acquisition by HWL of the 20% interest in ▇▇▇▇▇▇▇▇▇
3G UK Holdings Limited held by NTT DoCoMo, Inc. pursuant to an agreement dated
27 May 2004;
Final Offering Circular means the final offering circular to be issued by the
Company in connection with the International Offering substantially in the
agreed form;
Formal Notice means the formal notice substantially in the agreed form required
under Listing Rule 12.02 to be published in connection with the Hong Kong Public
Offering in the newspapers and on the dates specified in Schedule 7;
Global Offering means the Hong Kong Public Offering together with the
International Offering (including the Preferential Offering);
Governmental Authorization means an Approval from an applicable Governmental
Authority;
Governmental Authority means any public, regulatory or governmental agency or
authority (including, without limitation, the Hong Kong Stock Exchange and the
SFC) and any court at the national, provincial, municipal or local level;
Group means the Company and any of its subsidiaries from time to time including
the Significant Subsidiaries;
HK dollars and HK$ means Hong Kong dollars, the lawful currency of Hong Kong;
holding company has the meaning ascribed thereto in section 2 of the Companies
Ordinance;
Hongkong Clearing means Hong Kong Securities Clearing Company Limited;
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Hong Kong means the Hong Kong Special Administrative Region of the People's
Republic of China;
Hong Kong Application Forms means the white and yellow application forms for the
Hong Kong Offer Shares each in the agreed form to be issued by the Company with
the Hong Kong Prospectus;
Hong Kong Offering Documents means the Hong Kong Prospectus, the Hong Kong
Application Forms, the Formal Notice and any announcements, offer awareness
materials and summary disclosure materials issued or to be issued by the Company
in connection with the Hong Kong Public Offering (including any supplement or
amendment thereto);
Hong Kong Offer Shares means the Initial Public Offer Shares (i) together with,
where applicable, the Claw Back Shares, or (ii) as may be adjusted pursuant to
clause 3.9 or 6.7;
Hong Kong Prospectus means the prospectus (including any supplement or amendment
thereto) to be issued by the Company in connection with the Hong Kong Public
Offering substantially in the agreed form;
Hong Kong Public Offering means the offer for sale of the Hong Kong Offer Shares
in Hong Kong on and subject to the terms and conditions set out in the Hong Kong
Offering Documents;
Hong Kong Stock Exchange means The Stock Exchange of Hong Kong Limited;
HWL means ▇▇▇▇▇▇▇▇▇ Whampoa Limited a company incorporated in Hong Kong with
limited liability and listed on the Hong Kong Stock Exchange;
Initial Public Offer Shares means the 115,500,000 Shares initially offered for
subscription by the Company pursuant to the Hong Kong Public Offering, excluding
any Claw Back Shares and before making any adjustment pursuant to clauses 3.9 or
6.7;
International Offering means the offering of the International Offer Shares,
comprising (i) the offering of ADSs (which may, at the option of investors, be
delivered in the form of Shares) to professional and institutional investors
(including to professional and institutional investors within Hong Kong)
pursuant to the International Offering Circular, (ii) the public offering of
ADSs (which may, at the option of investors, be delivered in the form of Shares)
in the United States registered under the Securities Act pursuant to the US
Prospectus and (iii) the POWL pursuant to the Japanese Prospectus;
International Offering Circular means the Preliminary Offering Circular and the
Final Offering Circular (including any supplement or amendment thereto);
International Offering Documents means the International Offering Circular, the
Japanese Prospectus, the registration statement filed with the SEC and any
announcements, offer awareness materials and summary disclosure materials issued
or to be issued by the Company in connection with the International Offering
(including any supplement or amendment thereto);
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International Offer Shares means the 1,039,500,000 Shares (representing in
aggregate 69,300,000 ADSs) initially offered pursuant to the International
Offering (subject to adjustment as described in clause 3.9 and subject to the
provisions of clauses 3.5, 3.7 and 6.7 and the Over-Allocation Option);
International Underwriting Agreement means the purchase agreement relating to
the International Offering (including, for these purposes, the Preferential
Offering) expected to be entered into between the Company, the Selling
Shareholder, ▇▇▇▇▇▇▇ Sachs and the other International Underwriters on or
following the Price Determination Date;
International Underwriters means the group of underwriters of the International
Offering led by ▇▇▇▇▇▇▇ ▇▇▇▇▇, who are expected to enter into the International
Underwriting Agreement;
Intersyndicate Agreement means the agreement to be entered into between the Hong
Kong Underwriters and the International Underwriters;
Investor Compensation Levy means the investor compensation levy of 0.002 per
cent. charged by the Hong Kong Stock Exchange on each of the Selling Shareholder
and the purchasers in respect of the Offer Shares;
Japanese Prospectus means the securities registration statement to be filed by
the Company with the Director-General of Kanto Local Finance Bureau, the
Ministry of Finance of Japan in connection with the POWL;
Law means any law, rule, regulation, judgment, decree or ruling of any
Governmental Authority or any guideline, opinion, notice, circular or order of
any Government Authority which is legally or customarily binding in nature;
Listing Committee means the Listing Committee of the Hong Kong Stock Exchange;
Listing Date means the date, expected to be on or about 15 October 2004, on
which the Shares are listed and from which dealings therein are permitted to
take place on the Hong Kong Stock Exchange;
Listing Rules means The Rules Governing the Listing of Securities on The Stock
Exchange of Hong Kong Limited, as amended from time to time;
Multiple Applications Letter means the letter from the Company to the Branch
Share Registrar substantially in the agreed form relating to identification of
multiple applications in relation to the Hong Kong Offer Shares;
Nominee means HSBC Nominees (Hong Kong) Limited, in whose name the application
monies are to be held by the Receiving Bankers under the Receiving Bankers'
Agreement;
Offer Price means the price per Share for the Hong Kong Offer Shares as fixed in
accordance with the provisions of clause 3.6;
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Offer Shares means the 1,155,000,000 Shares being initially offered for sale
pursuant to the Global Offering (subject to adjustment as described in clause
3.9), together with any further Shares sold pursuant to the exercise of the
Over-Allocation Option;
Over-Allocation Option means the option expected to be granted in the
International Underwriting Agreement by the Selling Shareholder to the
International Underwriters, exercisable by ▇▇▇▇▇▇▇ ▇▇▇▇▇ on behalf of the
International Underwriters, up to the date which is the 30th day after the day
on which dealings in the Shares commence on the Hong Kong Stock Exchange, to
require the Selling Shareholder to sell up to an aggregate of 11,550,000 ADSs
(representing 173,250,000 additional Shares), which may be deliverable in the
form of Shares, at the price per ADS payable by International Underwriters under
the International Underwriting Agreement;
Overseas Shareholders means holders of HWL shares whose addresses on the
register of members of HWL were outside Hong Kong as at the close of business on
the Record Date;
POWL means the offering of Shares pursuant to a public offering without listing
in Japan;
PRC means the People's Republic of China, which, for the purpose of this
Agreement, excludes Hong Kong, the Macau Special Administrative Region of the
PRC and Taiwan;
Preference Shares means non-voting redeemable preference shares of par value
US$0.01 each in the share capital of the Company;
Preferential Offering means the preferential offering to the Qualifying HWL
Shareholders to acquire Reserved Shares on the basis of an assured entitlement
of one Reserved Share for every whole multiple of 75 HWL ordinary shares held by
each Qualifying HWL Shareholder at the close of business on the Record Date on
and subject to the terms and conditions of the Preferential Offering Documents;
Preferential Offering Application Form means the blue application form for the
Reserved Shares in the agreed form to be issued by the Company to Qualifying HWL
Shareholders with the Hong Kong Prospectus;
Preferential Offering Documents means the Hong Kong Prospectus (in both printed
form and on CD ROM in electronic form in compliance with Listing Rule 12.11),
the Preferential Offering Application Form, the Formal Notice and any
announcements, offer awareness materials and summary disclosure materials in the
agreed form issued by the Company and/or HWL in connection with the Preferential
Offering (including any supplement or amendment thereto);
Preliminary Offering Circular means the preliminary offering circular issued by
the Company in connection with the International Offering (dated 17 September
2004);
Price Determination Agreement means the letter agreement substantially in the
form set out in Schedule 5 to be entered into between ▇▇▇▇▇▇▇ Sachs (on behalf
of the
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Underwriters) and the Selling Shareholder immediately following the
determination of the Offer Price in accordance with clause 3.6 to record the
price so determined;
Price Determination Date means the date on which the Offer Price is determined
in accordance with the provisions of clause 3.6, which is expected to be on or
about 7 October 2004 and in any event not later than 11 October 2004;
Principal Registrar's Agreement means the agreement between the Principal Share
Registrar and the Company in the agreed form;
Principal Share Registrar means Bank of ▇▇▇▇▇▇▇▇▇▇▇ International (Cayman)
Limited;
Proceedings means any suit, investigation, inquiry, action or proceeding arising
out of or in connection with this Agreement;
Property Valuer means DTZ Debenham Tie ▇▇▇▇▇ Limited, an independent property
valuer;
Prospectus Date means the date of the Hong Kong Prospectus, being 30 September
2004;
Qualifying HWL Shareholders means the shareholders of HWL whose names appeared
on the register of members of HWL as holding 75 or more ordinary shares of HWL
as at the close of business on the Record Date, other than the Overseas
Shareholders;
Receiving Bankers means The Hongkong and Shanghai Banking Corporation Limited,
Standard Chartered Bank (Hong Kong) Limited and The Bank of East Asia, Limited,
being the banks appointed to hold the application monies received in connection
with the Hong Kong Public Offering pursuant to the Receiving Bankers' Agreement;
Receiving Bankers' Agreement means the agreement appointing the Receiving
Bankers and the Nominee in the agreed form;
Record Date means 24 September 2004, being the record date for ascertaining the
assured entitlements of the Qualifying HWL Shareholders to apply for the
Reserved Shares;
Reporting Accountants means PricewaterhouseCoopers, Hong Kong, Certified Public
Accountants;
Reserved Shares means the 56,764,237 Shares initially to be offered to
Qualifying HWL Shareholders pursuant to the Preferential Offering and which are
to be allocated out of the International Offer Shares, subject to any adjustment
as provided in the Intersyndicate Agreement and the International Underwriting
Agreement;
Restructuring means the events and transactions set forth in (A) the Hong Kong
Prospectus under the caption "The Restructuring" and (B) Appendix IX to the Hong
Kong Prospectus;
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Schedules means schedules to this Agreement;
SEC means the US Securities and Exchange Commission;
Securities Act means the US Securities Act of 1933, as amended;
SFC means the Securities and Futures Commission of Hong Kong;
SFC Transaction Levy means the SFC transaction levy of 0.005 per cent. charged
by the Hong Kong Stock Exchange on each of the Selling Shareholder and the
purchasers in respect of the Offer Shares;
SFO means the Securities and Futures Ordinance (Cap. 571 of the Laws of Hong
Kong);
Share Option Scheme means the share option scheme conditionally adopted by the
Company on 17 September 2004, the principal terms of which are summarized in the
section entitled "Share Option Scheme" in Appendix X to the Hong Kong
Prospectus;
Shares means ordinary shares of par value HK$0.25 each in the share capital of
the Company for which an application has been made for the listing, and
permission to deal in, on the Main Board of the Hong Kong Stock Exchange;
Significant Subsidiaries means subsidiaries and associated companies of the
Company as listed in Schedule 3, and Significant Subsidiary means any of them;
subsidiary has the meaning ascribed to it in Listing Rule 1.01;
Taxation means all forms of taxation whether in Hong Kong or elsewhere in the
world wherever imposed and all statutory, governmental, state, provincial, local
governmental or municipal impositions, duties and levies and all penalties,
charges, costs and interest relating thereto;
Trading Fee means the trading fee of 0.005 per cent. charged by the Hong Kong
Stock Exchange on each of the Selling Shareholder and the purchasers in respect
of the Offer Shares;
transaction means any transaction, act, event, omission or circumstance existing
of whatever nature;
Under-Subscription shall have the meaning given in clause 6.1;
Underwriters means the Hong Kong Underwriters and the International
Underwriters;
US and United States means the United States of America, its territories, its
possessions, any State of the United States of America and the District of
Columbia;
US dollar and US$ means United States dollars, the lawful currency of the United
States;
US Offering means the registered offering of Shares in the United States
pursuant to the US Prospectus;
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US Prospectus means the prospectus to be issued by the Company in the US in
connection with the International Offering;
Valid Applications means applications under the Hong Kong Public Offering from
persons made before the closing of the application lists (a) by giving
electronic application instructions to Hongkong Clearing (i) which have been
duly submitted and are otherwise in accordance with the terms and conditions of
the Hong Kong Offering Documents and (ii) in respect of which the debit from
such person's Designated Bank Account (as defined in the General Rules of CCASS)
to effect such instructions has been accepted by the relevant bank when first
requested (or, and without prejudice to the provisions of clauses 6.1 and 6.5,
if practicable in the circumstances and requested by ▇▇▇▇▇▇▇ ▇▇▇▇▇ (for itself
and on behalf of the other Hong Kong Underwriters) or the Company, on further
request) or (b) on Hong Kong Application Forms which (i) have been duly
completed and submitted and are otherwise in accordance with the terms and
conditions of the Hong Kong Offering Documents and (ii) are accompanied by
cheques or banker's cashier orders for the full amount payable on application
which are honoured on first presentation (or, and without prejudice to the
provisions of clauses 6.1 and 6.5, if practicable in the circumstances and
requested by ▇▇▇▇▇▇▇ Sachs (for itself and on behalf of the other Hong Kong
Underwriters) or the Company, on further presentation) and subject to the
provisions of clauses 3.4 and 3.5;
Verification Notes means the verification notes in respect of the Hong Kong
Prospectus in the agreed form prepared by Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ dated
27 September 2004 (signed copies of which have been or will be delivered to
▇▇▇▇▇▇▇ Sachs);
Warranties means the representations, warranties and undertakings in Schedule 4
and given or made, or deemed to be given or made, pursuant to clause 10 and
Warranty shall be construed accordingly; and
Warrantors means the Company and the Selling Shareholder.
1.2 In this Agreement, unless otherwise specified:
(a) references to recitals, clauses, sub-clauses, paragraphs and Schedules
are to recitals, clauses, sub-clauses, paragraphs of, and schedules to,
this Agreement;
(b) a reference to any statute or statutory provision shall be construed as
a reference to the same as it may have been, or may from time to time
be, amended, modified or re-enacted;
(c) references to a "company" shall be construed so as to include any
company, corporation or other body corporate, whenever and however
incorporated or established;
(d) references to a "person" shall be construed so as to include any
individual, firm, company, government, state or agency of a state or any
joint venture, association or partnership (whether or not having
separate legal personality);
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(e) references to writing shall include any mode of reproducing words in a
legible and non-transitory form;
(f) references to times of the day are, unless otherwise specified, to Hong
Kong time;
(g) all headings to clauses, sections and Schedules are for convenience only
and do not affect the interpretation of this Agreement;
(h) references to the "closing of the application lists" shall be to 12:00
noon on the Acceptance Date;
(i) the Schedules form part of this Agreement and shall have the same force
and effect as if expressly set out in the body of this Agreement, and
any reference to this Agreement shall include the Schedules; and
(j) a reference to a document being "in the agreed form" means such document
in a form agreed and initialled for the purposes of identification by
Linklaters and Freshfields Bruckhaus ▇▇▇▇▇▇▇▇.
2. CONDITIONS
2.1 Obligations Conditional: The obligations of the Hong Kong Underwriters
under this Agreement are conditional upon:
(a) ▇▇▇▇▇▇▇ Sachs, on behalf of the Hong Kong Underwriters, receiving the
documents listed in Part A of Schedule 2 not later than 5:00 p.m. on the
Business Day prior to the Prospectus Date and the documents listed in
Part B of Schedule 2 not later than 5:00 p.m. on the Business Day prior
to Closing, in each case (save as otherwise specified in Schedule 2) in
form and content satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇;
(b) the lodging of the Hong Kong Prospectus (and other required documents)
with the Hong Kong Stock Exchange by 11:00 a.m. (or such later time as
agreed by the Hong Kong Stock Exchange) at least one Business Day prior
to the Prospectus Date, and the Hong Kong Stock Exchange issuing a
certificate pursuant to section 342C(5) of the Companies Ordinance
certifying that it authorizes registration of the Hong Kong Prospectus
prior to the Prospectus Date;
(c) the lodging of one copy of the Hong Kong Prospectus and each of the
Application Forms duly certified by two Directors (or by their agents
duly authorized in writing) as having been approved by the resolutions
of the board of Directors or a duly constituted committee thereof and
having all the documents required by the provisions of section 342C of
the Companies Ordinance to be endorsed thereon or attached thereto with
the Registrar of Companies in Hong Kong not later than 3:00 p.m. (or
such later time as agreed by the Registrar of Companies in Hong Kong) on
the Business Day before the Prospectus Date, and the Registrar of
Companies in Hong Kong registering the same before the Prospectus Date;
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(d) the listing of and permission to deal in all the Shares having been
granted (subject only to despatch of share certificates) by the Listing
Committee in principle on or before the Price Determination Date and
dealings in the Shares being allowed by the Hong Kong Stock Exchange to
commence on the Hong Kong Stock Exchange on or before 15 October 2004
(or such later date as the Selling Shareholder and ▇▇▇▇▇▇▇ Sachs on
behalf of the Hong Kong Underwriters may agree) and such listing and
permission not subsequently being revoked or suspended prior to the time
and date detailed in clause 12.1;
(e) the execution and delivery of the International Underwriting Agreement
on the Price Determination Date;
(f) the International Underwriting Agreement becoming unconditional in
accordance with its terms (other than any condition for this Agreement
to become unconditional) and not having been terminated in accordance
with its terms or otherwise, prior to 8:00 a.m. on the morning on which
dealing is scheduled to commence in the Shares on the Hong Kong Stock
Exchange; and
(g) the Offer Price having been fixed on the Price Determination Date in
accordance with the provisions of clause 3.6 and the Price Determination
Agreement having been executed by the Selling Shareholder and ▇▇▇▇▇▇▇
Sachs (on behalf of the Hong Kong Underwriters).
2.2 Undertakings: Each of the Company and the Selling Shareholder undertakes
to use its best endeavours to procure the fulfilment of the conditions set out
in clause 2.1 above (save for clauses 2.1(e) and 2.1(g)) and in particular shall
furnish such information, supply such documents, pay such fees, give such
undertakings and do all such acts and things as may be reasonably required by
▇▇▇▇▇▇▇ ▇▇▇▇▇ (on behalf of the Hong Kong Underwriters), the Hong Kong Stock
Exchange, the SFC and the Registrar of Companies in Hong Kong in connection with
the application for the listing of and permission to deal in the Shares and the
fulfilment of such conditions.
2.3 Waiver: ▇▇▇▇▇▇▇ Sachs, for itself and on behalf of the other Hong Kong
Underwriters, may, at any time, waive any or all of the Conditions (in whole or
in part) or extend the deadline for the fulfilment of such Conditions by such
number of days or in such manner as it may in its sole and absolute discretion
determine.
2.4 Termination: In the event that any of the Conditions is not fulfilled or
waived on or prior to 30 October 2004 or in the event that the Price
Determination Date shall not occur, this Agreement shall terminate with
immediate effect and the provisions of clause 12.2 shall apply.
3. THE HONG KONG PUBLIC OFFERING
3.1 Hong Kong Public Offering: The Selling Shareholder will, subject to the
determination of the Offer Price in accordance with clause 3.6, as beneficial
owner, offer the Hong Kong Offer Shares for sale to the public in Hong Kong at
the Offer Price, payable in full on application in HK dollars together with
Brokerage at the rate of 1 per cent., SFC Transaction Levy at the rate of 0.005
per cent., Investor Compensation Levy at the rate of 0.002 per cent. and Trading
Fee at the rate of
Page 12
0.005 per cent. on and subject to the terms and conditions set out in the Hong
Kong Offering Documents and this Agreement. The Hong Kong Offer Shares shall be
sold pursuant to the Hong Kong Public Offering free and clear of all liens,
charges and encumbrances, claims, options and third party rights, and together
with all rights attaching thereto at the date hereof, including the right to
receive all dividends or other distributions declared, made or paid on the Hong
Kong Offer Shares at any time after the date of this Agreement.
3.2 Appointment: The Company and the Selling Shareholder hereby appoint, to
the exclusion of all others:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇ to act as global coordinator of the Global Offering;
(b) ▇▇▇▇▇▇▇ Sachs to act as sponsor to the Company in relation to the
application to the Hong Kong Stock Exchange for the listing of, and
permission to deal in, the Offer Shares; and
(c) the Hong Kong Underwriters as underwriters for the Hong Kong Public
Offering,
and relying on the representations, warranties and undertakings herein contained
and subject as hereafter mentioned, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and each Hong Kong Underwriter
respectively and severally accept such appointments.
The Company and the Selling Shareholder hereby confirm that the foregoing
appointments confer on ▇▇▇▇▇▇▇ ▇▇▇▇▇ and each Hong Kong Underwriter,
respectively, all powers, authorities and discretion on behalf of the Company
which are necessary for (or, in the case of discretions, reasonably necessary
for), or reasonably incidental to, the lawful making of the Hong Kong Public
Offering and hereby agree to ratify and confirm everything which ▇▇▇▇▇▇▇ ▇▇▇▇▇
or any of the Hong Kong Underwriters shall lawfully do in the exercise of any
such appointments, powers, authorities and discretions. The Company and the
Selling Shareholder confirm that they will use all commercially reasonable
endeavours to procure that there is no offer, sale or distribution of the Hong
Kong Offer Shares otherwise than in accordance with and on the terms of the Hong
Kong Offering Documents and this Agreement.
Each such appointment is made on the basis and on terms that each appointee may,
as far as it relates to the Hong Kong Public Offering, at the option of such
appointee, delegate all or any of its relevant rights, duties, powers and
discretions in such manner and on such terms as it thinks fit (with or without
formality, but having (so far as practical) consulted with the Company or the
Selling Shareholder) to any one or more of its affiliates; provided, however,
that no such delegation shall in any way release any appointee from, or
otherwise reduce, the duties and responsibilities of such appointee hereunder.
3.3 Formal Notice: The Company and the Selling Shareholder will, subject to
registration of the Hong Kong Prospectus in accordance with clause 2.1(c), cause
the Formal Notice to be published in such newspapers and on such date(s) as set
out in Schedule 7, or as the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ may otherwise agree in
writing.
Page 13
3.4 Application Lists: The application lists for the Hong Kong Offer Shares
will, subject as mentioned below, open at 11:45 a.m. on the Acceptance Date and
will close at 12:00 noon on the same day. In the event of a tropical cyclone
warning signal No. 8 or above or a "black" rainstorm warning signal (in any such
case, a signal) being in force in Hong Kong at any time between 8:00 a.m. and
12:00 noon on the Acceptance Date then the application lists will open at 11:45
a.m. and close at 12:00 noon on the next Business Day on which no signal remains
in force at any time between 8:00 a.m. and 12:00 noon and all references in this
Agreement to the closing of the application lists shall be construed
accordingly.
3.5 Acceptance of Applications: The Company and the Selling Shareholder
agree that ▇▇▇▇▇▇▇ Sachs shall have the sole and exclusive right in its absolute
discretion (and may authorize the Receiving Bankers to exercise such discretion)
and on behalf of the Company and the Selling Shareholder, on and subject to the
terms and conditions set out in the Hong Kong Offering Documents, the
Preferential Offering Documents, this Agreement and the Receiving Bankers'
Agreement, to accept or reject (in whole or in part) any applications for Hong
Kong Offer Shares and/or Reserved Shares. Where the number of Hong Kong Offer
Shares or Reserved Shares (as the case may be) being. applied for exceeds the
total number of the Hong Kong Offer Shares or the number of Reserved Shares not
taken up pursuant to Assured Entitlements (as the case may be), ▇▇▇▇▇▇▇ ▇▇▇▇▇
shall have the right to determine the basis of allocation of the Hong Kong Offer
Shares or such excess Reserved Shares (as the case may be), having (as far as
practical) first consulted with the Selling Shareholder. ▇▇▇▇▇▇▇ Sachs, without
prejudice to clause 3.7 below, may, but shall not be obliged to, withdraw Offer
Shares from the International Offering and, on behalf of the Company and the
Selling Shareholder, make available such Offer Shares as additional Hong Kong
Offer Shares to satisfy Valid Applications. Where ▇▇▇▇▇▇▇ ▇▇▇▇▇ intends to
reject an application in the Hong Kong Public Offering for Shares with an
aggregate subscription price of more than HK$5 million (excluding Brokerage,
Trading Fee, SFC Transaction Levy and Investor Compensation Levy payable) on
grounds not contemplated by the written guidelines by which ▇▇▇▇▇▇▇ ▇▇▇▇▇ and/or
the Receiving Banks will determine whether or not an application for Shares is a
Valid Application, it shall first consult with the Selling Shareholder.
3.6 Price Determination: The Offer Price will be based on the Hong Kong
dollar equivalent of the US dollar price at which ADSs are to be offered in the
International Offering. The price of such ADSs will be fixed in accordance with
the International Underwriting Agreement on the Price Determination Date. The
Offer Price will be determined as that amount which, when increased by Brokerage
at the rate of 1 per cent., SFC Transaction Levy at the rate of 0.005 per cent.,
Investor Compensation Levy at the rate of 0.002 per cent. and Trading Fee at the
rate of 0.005 per cent. thereon, is (subject to any necessary rounding) equal to
the US dollar per ADS (i) converted into Hong Kong dollars at the average of the
bid and offered exchange rates quoted by The Hongkong and Shanghai Banking
Corporation Limited at the close of business on the Business Day prior to the
Price Determination Date and (ii) divided by 15 (being the number of Offer
Shares represented by each ADS), provided that the Offer Price (exclusive of
Brokerage, SFC Transaction Levy, Investor Compensation Levy and Trading Fee)
shall not exceed HK$7.55 and is expected to be not lower than HK$6.52. The Offer
Price shall upon its determination be recorded in the Price
Page 14
Determination Agreement to be executed by the Selling Shareholder and ▇▇▇▇▇▇▇
▇▇▇▇▇ (on behalf of the Hong Kong Underwriters) at such time.
3.7 Clawback: The aggregate number of Initial Public Offer Shares shall be
increased in the following manner in the event of a Hong Kong Public Offering
over-subscription:
(a) if the number of Shares which are the subject of Valid Applications
represents 15 times or more but less than 50 times the number of Initial
Public Offer Shares, then Shares will be reallocated to the Hong Kong
Public Offering from the International Offering so that the total number
of Shares available under the Hong Kong Public Offering will be
increased to at least 346,500,000 Shares representing at least 30 per
cent. of the total number of Shares initially available in the Global
Offering (without any exercise of the Over-Allocation Option);
(b) if the number of Shares which are the subject of Valid Applications
represents 50 times or more but less than 100 times the number of
Initial Public Offer Shares, then Shares will be reallocated to the Hong
Kong Public Offering from the International Offering so that the total
number of Shares available under the Hong Kong Public Offering will be
increased to at least 462,000,000 Shares representing at least 40 per
cent. of the total number of Shares initially available in the Global
Offering (without any exercise of the Over-Allocation Option); and
(c) if the number of Shares which are the subject of Valid Applications
represents 100 times or more the number of Initial Public Offer Shares,
then Shares will be reallocated to the Hong Kong Public Offering from
the International Offering so that the total number of Shares available
under the Hong Kong Public Offering will be increased to at least
577,500,000 Shares representing at least 50 per cent. of the total
number of Shares initially available in the Global Offering (without any
exercise of the Over-Allocation Option).
In each such case, ▇▇▇▇▇▇▇ Sachs, after prior consultation with the Company,
shall have absolute discretion in determining the number of additional Offer
Shares reallocated to the Hong Kong Public Offering (subject to the relevant
minimum numbers in paragraph (a), (b) or (c) above, as appropriate). In addition
to the clawback mechanism described above, ▇▇▇▇▇▇▇ ▇▇▇▇▇, after prior
consultation with the Company, shall have absolute discretion to reallocate
Offer Shares being offered pursuant to the International Offering to the Hong
Kong Public Offering.
The relevant number of International Offer Shares which are the subject of
clawback pursuant to this clause 3.7 shall be withdrawn from the International
Offering and made available as additional Initial Public Offer Shares offered
for purchase pursuant to the Hong Kong Public Offering. Any such reallocation
shall have no effect on the Selling Shareholder's obligations to pay the
commission due to the Hong Kong Underwriters which shall be determined pursuant
to clause 8.
3.8 Pools: The total number of Initial Public Offer Shares (after taking
into account any reallocation pursuant to clause 3.7 and clause 6.7) shall be
divided equally into two pools for allocation purposes: pool A and pool B. The
Shares in
Page 15
pool A will be allocated by ▇▇▇▇▇▇▇ Sachs in its absolute discretion, having (as
far as is practical) first consulted with the Company, on an equitable basis to
applicants who have applied for Shares with an aggregate subscription price of
HK$5 million (excluding Brokerage, Trading Fee, SFC Transaction Levy and
Investor Compensation Levy payable) or less per applicant. The Shares in pool B
will be allocated by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in its absolute discretion, having (as far as
is practical) first consulted with the Company, on an equitable basis to
applicants who have applied for Shares with an aggregate subscription price of
more than HK$5 million (excluding Brokerage, Trading Fee, SFC Transaction Levy
and Investor Compensation Levy payable) per applicant. ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall
determine the allocation ratio for the two pools described above, having (as far
as is practical) first consulted with the Company, and subject to the provisions
relevant thereto set out in the section headed "Structure of the Global
Offering" in the Hong Kong Prospectus. Any Shares which are reallocated from the
International Offering to the Hong Kong Public Offering pursuant to clause 3.7
shall, subject to the provisions of this clause and the Hong Kong Offering
Documents, be allocated in such manner as ▇▇▇▇▇▇▇ Sachs may in its absolute
discretion determine, having (as far as is practical) first consulted with the
Company.
3.9 Changes to Price Range, Initial Public Offer Shares and/or Offer Shares:
▇▇▇▇▇▇▇ ▇▇▇▇▇ on behalf of the Hong Kong Underwriters may, where considered
appropriate, based on the level of interest expressed by prospective investors
during the book-building process, with the prior written consent of the Selling
Shareholder (in consultation with the Company), change the indicative offer
price range or the number of Initial Public Offer Shares and/or Offer Shares as
stated in the Hong Kong Prospectus, subject to compliance with applicable Law
and the Listing Rules. In any such case, the Company and the Selling Shareholder
shall, as soon as practicable following the decision to make such change and in
any event not later than the morning of the Acceptance Date, cause to be
published in The Standard (in English) and the Sing Tao Daily (in Chinese)
notices of the change in the indicative offer price range and/or the number of
the Initial Public Offer Shares and/or Offer Shares.
3.10 Receiving Bankers: The Company and the Selling Shareholder will prior to
the Prospectus Date appoint the Receiving Bankers to act as receiving bankers in
connection with the receiving of completed applications for Hong Kong Public
Offer Shares and the Nominee in connection with the receiving and holding of
application moneys and any interest accruing thereon, in both cases, on and
subject to the terms and conditions of the Receiving Bankers' Agreement.
3.11 Branch Share Registrar: The Company and the Selling Shareholder will
prior to the Prospectus Date appoint the Branch Share Registrar to provide
services in connection with the processing of applications under the Hong Kong
Public Offering and the Preferential Offering on and subject to the terms and
conditions of the Branch Registrar's Agreement and the Multiple Applications
Letter.
3.12 Minimum Public Float under Listing Rule 8.08(1): The Company undertakes
with the Hong Kong Underwriters shall use all commercially reasonable endeavours
to ensure that each of the Directors and the directors and chief executives of
each subsidiary of the Company and their respective associates (as defined in
Listing Rule 1.01) (each a Connected Applicant) shall not make applications
under the Hong Kong Public Offering in respect of an aggregate number of Hong
Kong
Page 16
Offer Shares which would cause the minimum percentage of Shares which are
required to be in public hands (as such phrase is construed in accordance with
the Listing Rule 8.24) on the Listing Date at the commencement of dealings in
Shares on the Hong Kong Stock Exchange to fall below the 25% threshold
prescribed by Listing Rule 8.08(1) (excluding for the purposes of this clause
any Shares that may be sold pursuant to the exercise of Over-allocation Option)
(Minimum Public Float). The Company shall notify ▇▇▇▇▇▇▇ Sachs in writing of
information relating to applications made under the Hong Kong Public Offering by
Connected Applicants as soon as practicable following the closing of the
application lists and in any event within 24 hours thereafter. The Company shall
forthwith notify ▇▇▇▇▇▇▇ ▇▇▇▇▇ in writing if it becomes aware that the Minimum
Public Float is or may be breached on the Listing Date.
3.13 Undertakings to Hong Kong Underwriters: Without prejudice to the
foregoing obligations, each of the Company and the Selling Shareholder
undertakes with the Hong Kong Underwriters that it will do all such other acts
and things, pay all fees (as referred to in the fees and expenses letter
referred to in clause 8.3) and execute all documents as may be required for the
purpose of the Hong Kong Public Offering and obtaining listing of and permission
to deal in the Shares on the Hong Kong Stock Exchange (including in particular,
in the case of the Company, effecting all necessary registrations and filings
with the Hong Kong Stock Exchange and the Registrar of Companies in Hong Kong
and ensuring that each of the Directors will sign or cause to be duly signed on
their behalf all documents required to be signed by them as directors of the
Company for the purposes of or in connection with any such registrations and
filings and the obtaining of listing of and permission to deal in the Shares on
the Hong Kong Stock Exchange) and that it will comply with all requirements so
as to enable the listing of and permission to deal in the Shares to commence on
15 October 2004 to be granted by the Listing Committee.
3.14 Exclusion: No Hong Kong Underwriter shall be responsible for any loss or
damage (except for any loss or damage arising solely out of any fraud, wilful
default or gross negligence on the part of that Hong Kong Underwriter) to any
persons arising from any transaction lawfully and properly carried out by it
pursuant to this Agreement or to the Selling Shareholder or the Company for any
alleged insufficiency of the Offer Price.
4. THE HONG KONG OFFERING DOCUMENTS AND THE PREFERENTIAL OFFERING DOCUMENTS
4.1 Issue of Hong Kong Offering Documents: Subject to the Hong Kong
Prospectus having been registered by the Registrar of Companies in Hong Kong,
the Company will, on the Prospectus Date, issue the Hong Kong Prospectus and the
Hong Kong Application Forms and shall cause sufficient copies of the Hong Kong
Prospectus and the Hong Kong Application Forms to be made available at the
addresses specified in the Hong Kong Prospectus to satisfy public demand during
the period from Prospectus Date to the closing of the application lists, and
cause such number of copies of the Hong Kong Prospectus and the Hong Kong
Application Forms as ▇▇▇▇▇▇▇ ▇▇▇▇▇ (on behalf of the Hong Kong Underwriters) may
reasonably request to be delivered to ▇▇▇▇▇▇▇ Sachs or as ▇▇▇▇▇▇▇ ▇▇▇▇▇ (on
behalf of the Hong Kong Underwriters) may direct for the purpose of issuing the
same generally.
Page 17
4.2 Issue of Preferential Offering Documents: Subject to the Hong Kong
Prospectus having been registered by the Registrar of Companies in Hong Kong,
the Company will cause the Hong Kong Prospectus in electronic format on CD ROM
(together with an electronic format of the specimen Preferential Offering
Application Form) (both of which shall be identical with the contents of the
Hong Kong Prospectus and the Preferential Offering Application Form in printed
form which have been registered by the Registrar of Companies in Hong Kong) and
the Preferential Offering Application Form to be delivered to Qualifying HWL
Shareholders on the Prospectus Date (or as soon as possible thereafter) and
shall cause sufficient copies of the Hong Kong Prospectus and the Preferential
Offering Application Forms to be made available to Qualifying HWL Shareholders
at the offices of the Branch Share Registrar specified in the Hong Kong
Prospectus from the Prospectus Date to the closing of the application lists.
4.3 Other Documents: Except for the International Offering Documents, the
Hong Kong Offering Documents and the Preferential Offering Documents or except
as otherwise provided pursuant to the provisions of this Agreement or as
required by the Hong Kong Stock Exchange or other Governmental Authorities
having jurisdiction, the Selling Shareholder and the Company each undertake not,
without the prior written approval of ▇▇▇▇▇▇▇ Sachs (not to be unreasonably
withheld or delayed), to issue, publish, distribute or otherwise make available
any document (including any prospectus or any supplement or amendment thereto),
material or information in connection with the Global Offering until the expiry
of the period of three months after the Listing Date.
5. ALLOCATION OF HONG KONG OFFER SHARES
5.1 Share certificates: The Company shall procure that share certificates in
the names of the successful applicants in the Hong Kong Public Offering (or,
where appropriate, HKSCC Nominees Limited) (each in a form complying with the
Listing Rules) shall be issued and despatched, or delivered to Hongkong Clearing
for immediate credit to such CCASS stock accounts as shall be notified by
▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Company for such purpose, or made available for collection
(as applicable) as provided for in the Hong Kong Offering Documents and this
Agreement on the Business Day immediately before the Listing Date, which is
expected to be 14 October 2004. Such share certificates will only become valid
in the circumstances described in the Prospectus.
5.2 Allocations: At the same time as Closing or as soon as possible
thereafter on the date of Closing (and in any event by no later than 9:00 a.m.
on the Listing Date), and in accordance with the relevant sections of the Hong
Kong Offering Documents, this Agreement and subject to the manner agreed between
the Company, the Selling Shareholder, ▇▇▇▇▇▇▇ Sachs, the Principal Share
Registrar and the Branch Share Registrar, the Company and the Selling
Shareholder shall procure that the names of the successful applicants in the
Hong Kong Public Offering (or, where appropriate, HKSCC Nominees Limited) shall
be entered in the principal register of members of the Company maintained in the
Cayman Islands by the Principal Share Registrar accordingly (without payment of
any registration or transfer fee) as transferees and as holders of the
appropriate number of Hong Kong Offer Shares.
Page 18
5.3 Removal to branch register: Immediately after the allocations made
pursuant to clause 5.2 but prior to the commencement of dealings in the Shares
on the Hong Kong Stock Exchange, the Company shall procure the establishment in
Hong Kong of a branch register of members of the Company and the Company shall
procure that the names of the successful applicants (or, where appropriate,
HKSCC Nominees Limited) shall be removed from the principal register of members
of the Company maintained in the Cayman Islands by the Principal Share Registrar
and shall be entered in the branch register of members of the Company by the
Branch Share Registrar.
6. UNDERWRITING
6.1 Several Underwriting Commitments: Upon the terms and subject to the
conditions of this Agreement and in reliance upon the Warranties, if and to the
extent that, by 12:00 noon on the Acceptance Date, there shall remain any
Initial Public Offer Shares for which Valid Applications, as subsequently
calculated, have not been received (an Under-Subscription), the Hong Kong
Underwriters shall, subject to and after taking account of any reallocation of
Shares to the International Offering pursuant to clause 6.7, apply or procure
applications for such number of Hong Kong Offer Shares as represents the
shortfall at the Offer Price in accordance with the terms and conditions set out
in the Hong Kong Offering Documents (other than as to the deadline for making
the application and payment and save as provided in this clause 6) and shall pay
or procure to be paid the net amount payable on application for such shares in
HK dollars as provided in accordance with clause 6.6 PROVIDED THAT the
obligations of the Hong Kong Underwriters in respect of Hong Kong Offer Shares
under this sub-clause shall be several (and not joint and several) on the basis
that each Hong Kong Underwriter shall apply or procure applications for such
number of Hong Kong Offer Shares to which this sub-clause applies in the
proportions set out against its name in the column headed "Percentage of Hong
Kong Public Offering Underwritten" in Schedule 1.
6.2 Rights and Liabilities: Subject to the provisions of the Agreement Among
Hong Kong Underwriters, none of the Hong Kong Underwriters will be liable for
any failure on the part of any of the other Hong Kong Underwriters to perform
its obligations under this clause 6. Notwithstanding the foregoing, each of the
Hong Kong Underwriters shall be entitled to enforce any or all of its rights
under this Agreement either alone or jointly with the other Hong Kong
Underwriters.
6.3 Acceptance of Applications: The Company and the Selling Shareholder
agree with the Hong Kong Underwriters that all Valid Applications received prior
to the closing of the application lists and accepted by ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant
to this Agreement, either in whole or in part, will be accepted by the Company
and the Selling Shareholder before calling upon the Hong Kong Underwriters or
any of them to perform the obligations imposed on them by this clause.
6.4 Calculation of Hong Kong Offer Shares Applied For: Following the closing
of the application lists, the Receiving Bankers and the Branch Share Registrar
will, pursuant to the Receiving Bankers' Agreement and the Branch Registrar's
Agreement, calculate and notify ▇▇▇▇▇▇▇ Sachs and the Selling Shareholder of the
number of Hong Kong Offer Shares for which Valid Applications have been received
and not rejected and will procure that the applications will be processed, and
such
Page 19
calculation and notification made, as soon as practicable and in any event not
later than 9:00 a.m. on the third Banking Day after the Acceptance Date.
6.5 Notification to ▇▇▇▇▇▇▇ ▇▇▇▇▇: Subject to clause 6.7, in the event of an
Under-Subscription such that the Hong Kong Underwriters are obliged to apply for
or procure applicants pursuant to clause 6.1 for the Hong Kong Offer Shares
representing the shortfall, the Company will procure that the Branch Share
Registrar and/or the Receiving Bankers will as soon as possible and in any event
not later than 9:00 p.m. on the Banking Day after the Acceptance Date notify
▇▇▇▇▇▇▇ Sachs on behalf of the Hong Kong Underwriters of the number of Hong Kong
Offer Shares falling to be taken up pursuant to clause 6.1 and together with
such other information as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may reasonably require.
6.6 Hong Kong Underwriters' Purchase Obligations: Subject to clause 6.7,
each of the Hong Kong Underwriters will severally, as soon as practicable, and
in any event not later than 2:00 p.m. on the third Business Day immediately
after the date on which any notification is made under clause 6.5 deliver to the
Selling Shareholder duly completed white Hong Kong Application Form(s) for such
number of Hong Kong Offer Shares as fall to be taken up by it pursuant to clause
6.1, and, subject to the proviso in clause 6.1, specifying the name(s) and
address(es) and other relevant information of the applicant(s) as instructed on
the white Application Form and the number of Hong Kong Offer Shares to be
allocated to each such applicant, together with a cheque or cashier order
payable to "HSBC Nominees (Hong Kong) Limited - ▇▇▇▇▇▇▇▇▇ Telecom Public Offer"
for the Hong Kong dollar amount equal to the net purchase price payable by the
relevant Hong Kong Underwriter calculated on the basis of the Offer Price:
(a) plus the SFC Transaction Levy at the rate of 0.005 per cent., Investor
Compensation Levy at the rate of 0.002 per cent. and Trading Fee at the
rate of 0.005 per cent. thereon payable by the applicants to the Hong
Kong Stock Exchange in respect of such Hong Kong Offer Shares; and
(b) less the amount of underwriting commission calculated on the basis of
2.5 per cent. of the Offer Price,
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall instruct the Nominee to pay such amounts referred to in
sub-paragraph (a) above to the Hong Kong Stock Exchange on behalf of the
applicants together with other successful applicants in the Hong Kong Public
Offering. Brokerage payable by applicants at the rate of 1 per cent. of the
Offer Price may be retained by the Hong Kong Underwriters. ▇▇▇▇▇▇▇ Sachs shall
not be responsible for the failure by any Hong Kong Underwriter (apart from
itself in its capacity as a Hong Kong Underwriter) to make such payment.
The transfer of relevant Hong Kong Offer Shares applied for by any Hong Kong
Underwriter pursuant to this clause 6 shall be completed in accordance with the
provisions of clause 5.
6.7 Reallocation to International Offering: If an Under-Subscription shall
occur, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have the right (but is not obliged) to apply for
(subject to and in accordance with this Agreement) or to reallocate to the
International Offering all or any of the Hong Kong Offer Shares which any Hong
Kong Underwriter is
Page 20
required to apply for pursuant to clause 6.1. Any application submitted or
procured to be submitted by ▇▇▇▇▇▇▇ Sachs or any reallocation of Hong Kong Offer
Shares to the International Offering pursuant to this sub-clause and duly
purchased by the International Underwriters and/or purchasers procured by any
one or more of them shall satisfy pro tanto the obligation of the Hong Kong
Underwriters under this clause 6 and, as between the Hong Kong Underwriters, on
a pro-rata basis. Any Shares which are reallocated from the Hong Kong Public
Offering to the International Offering pursuant to this clause 6.7 shall for all
purposes (including the purchase price per Share payable to the Selling
Shareholder) be deemed to be International Offer Shares delivered under the
International Underwriting Agreement and the Hong Kong Underwriters shall not be
entitled to any underwriting commissions payable under clause 8.1 in respect of
such reallocated Shares.
6.8 Cessation of Hong Kong Underwriters' Obligations: All obligations and
liabilities of the Hong Kong Underwriters under this Agreement to apply or
procure applicants for Hong Kong Offer Shares will cease following due payment
in full by or on behalf of the respective Hong Kong Underwriters in accordance
with clause 6.6 or on ▇▇▇▇▇▇▇ ▇▇▇▇▇ being notified pursuant to clause 6.4 that
the Hong Kong Public Offering is fully subscribed or over subscribed by Valid
Applications.
6.9 Reduction of Hong Kong Underwriters' Obligation: The obligation of a
Hong Kong Underwriter pursuant to this clause 6 shall be reduced to the extent
that valid Underwriters' Applications (as defined in Schedule 6) are made or
procured by such Hong Kong Underwriter to be made in accordance with the
arrangements set out in Schedule 6.
7. PAYMENT UNDER THE HONG KONG PUBLIC OFFERING
7.1 Payment to the Selling Shareholder: At Closing or as soon as possible
thereafter on the date of Closing (and in any event prior to the commencement of
dealings of the Shares on the Hong Kong Stock Exchange), the application moneys
with interest thereon held by the Nominee will, in accordance with the
provisions of the Receiving Bankers' Agreement and subject to clauses 7.2 and
7.3 below, be paid over to the Selling Shareholder after the share certificates
for the Hong Kong Offer Shares have been despatched or delivered (subject to
such certificates only becoming valid in the circumstances described in the
Prospectus) by or on behalf of the Company to the successful applicants under
the Hong Kong Public Offering through the facilities of Hongkong Clearing for
credit (following payment) to CCASS participants accounts or made available to
such applicants, as the case may be PROVIDED THAT the Nominee may deduct from
the amount so payable to the Selling Shareholder the amounts described in
clauses 7.2 and 7.3 below.
7.2 Payment of underwriting commissions, brokerage and levies by the Selling
Shareholder: The Selling Shareholder covenants and agrees that it will in
accordance with the provisions of the Receiving Bankers' Agreement, pay or cause
to be paid on behalf of the Company:
(a) the underwriting commission referred to in clause 8.1 (such payment to
be made by way of deduction from the application moneys referred to in
clause 7.1 held by the Nominee in accordance with the terms of the
Receiving
Page 21
Bankers' Agreement and ▇▇▇▇▇▇▇ ▇▇▇▇▇ being authorised to direct the
Nominee to make such deduction);
(b) those fees and expenses payable pursuant to clause 8.3 and which have
been agreed with the Company; and
(c) such sums as are required to satisfy the payments referred to in clause
7.3,
and the Company agrees to reimburse the Selling Shareholder the amounts so paid
or caused to be paid.
7.3 Brokerage and Levies: ▇▇▇▇▇▇▇ Sachs on behalf of the Hong Kong
Underwriters will arrange for the payment by the Nominee on behalf of the
Selling Shareholder and successful applicants under the Hong Kong Public
Offering (excluding any applications made pursuant to clause 6.6):
(a) to members of the Hong Kong Stock Exchange and the Hong Kong
Underwriters (as the case may be) of Brokerage at the rate of 1 per
cent. of the Offer Price; and
(b) to the Hong Kong Stock Exchange of the SFC Transaction Levy, Investor
Compensation Levy and Trading Fee at the aggregate rate of 0.024 per
cent. of the Offer Price,
in respect of Valid Applications for the Hong Kong Offer Shares, such amounts to
be paid by way of deduction from the application moneys held by the Nominee and
▇▇▇▇▇▇▇ ▇▇▇▇▇ being authorised to direct the Nominee to make such deduction.
7.4 ▇▇▇▇▇▇▇ Sachs' responsibilities: For the avoidance of doubt, ▇▇▇▇▇▇▇
▇▇▇▇▇ shall have no liability under this clause or otherwise for any default by
the Nominee and, subject to clause 8.3 or save as otherwise agreed between
▇▇▇▇▇▇▇ Sachs and the Selling Shareholder and/or the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇
shall not be responsible for the payment (by deduction from the gross proceeds
or otherwise) of any fees, costs, charges and expenses of or incurred by the
Selling Shareholder or the Company.
8. COMMISSION AND EXPENSES
8.1 Underwriting commissions: In consideration of the services of the Hong
Kong Underwriters under this Agreement, the Company will pay to ▇▇▇▇▇▇▇ ▇▇▇▇▇,
for itself and on behalf of the other Hong Kong Underwriters, an underwriting
commission calculated at the rate of 2.5 per cent. of the Offer Price multiplied
by the number of Initial Public Offer Shares less any Shares reallocated to the
International Offering under clause 6.7, ignoring for this purpose any Claw Back
Shares. For the avoidance of doubt, the Hong Kong Underwriters shall not be
entitled to any underwriting commissions in respect of the Claw Back Shares or
the Shares reallocated to the International Offering under clause 6.7 as the
relevant underwriting discounts and commissions relating to such Shares will be
payable to the relevant International Underwriters in accordance with the
International Underwriting Agreement and deducted from the purchase moneys
payable under the International Underwriting Agreement.
Page 22
8.2 Allocation of underwriting commission: The allocation and distribution
of the underwriting commission referred to in clause 8.1 above among the Hong
Kong Underwriters shall be separately dealt with in the Agreement Among Hong
Kong Underwriters. The Selling Shareholder and the Company shall not be
concerned as to or bear any liability in respect of the allocation or
distribution of such underwriting commissions by ▇▇▇▇▇▇▇ Sachs to any one or
more of the Hong Kong Underwriters.
8.3 Fees and expenses letter: The responsibility for fees and expenses in
connection with the Hong Kong Public Offering shall be as set out in the fees
and expenses letter entered into on the date of this Agreement between ▇▇▇▇▇▇▇
▇▇▇▇▇ (for itself and on behalf of each of the Hong Kong Underwriters), the
Company and the Selling Shareholder.
8.4 Indemnity: The Company will be responsible for and will indemnify each
of the Hong Kong Underwriters against the Trading Fee, SFC Transaction Levy and
Investor Compensation Levy payable by the Selling Shareholder in connection with
the Hong Kong Public Offering and the purchase of the Hong Kong Offer Shares
pursuant thereto (not being Brokerage, Trading Fee, SFC Transaction Levy and
Investor Compensation Levy paid by applicants in respect of the Hong Kong Offer
Shares and collected and paid by the Receiving Bankers to ▇▇▇▇▇▇▇ ▇▇▇▇▇ or in
respect of undersubscribed Hong Kong Offer Shares purchased by any Hong Kong
Underwriter or due by such Hong Kong Underwriter pursuant to any purchase of
Hong Kong Offer Shares by such Hong Kong Underwriter whether pursuant to clause
6.1 or otherwise).
8.5 Stamp or other transfer duty: The Selling Shareholder shall be liable
for all and any stamp or other transfer duty (including any penalties for late
stamping) arising in respect of the transfer and delivery to initial purchasers
procured by the Hong Kong Underwriters (including, if applicable, to each Hong
Kong Underwriter) of any or all of the Hong Kong Offer Shares shown opposite its
name in Schedule 1, in each case pursuant to this Agreement. The Company
undertakes to pay to and reimburse the Selling Shareholder in respect of any
such stamp or other transfer duty (including any penalties for late stamping).
In addition, the Company undertakes to pay to and reimburse ▇▇▇▇▇▇▇ Sachs and
each of the Hong Kong Underwriters in respect of any such stamp or other
transfer duty (including any penalties for late stamping) which they may incur
or otherwise suffer. For the avoidance of doubt, neither the Company nor the
Selling Shareholder shall be liable under this clause 8.5 to pay to and
reimburse ▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Hong Kong Underwriters in respect of any stamp or
other transfer duty or penalty for late stamping arising in respect of any
subsequent sale of Shares by initial purchasers of the Hong Kong Offer Shares to
any other person.
9. STABILIZATION AND LIABILITY
9.1 Stabilization: ▇▇▇▇▇▇▇ Sachs and its affiliates may, in connection with
the Global Offering, for their own account as principal or on behalf of any Hong
Kong Underwriter, but not as agent for the Company or the Selling Shareholder,
to the extent permitted by applicable Law of Hong Kong or elsewhere,
over-allocate or effect transactions in the market or otherwise with a view to
stabilizing or maintaining the market price of the Offer Shares at such prices,
in such amounts and in such manner as ▇▇▇▇▇▇▇ ▇▇▇▇▇ and/or its relevant
affiliates may determine and at levels
Page 23
other than those which might otherwise prevail in the open market. Such
stabilizing, if commenced, may be discontinued at any time. Any expenses and
losses resulting from such over-allocation and stabilization or other
transactions effected pursuant to this clause shall be debited, and any profit
arising from them shall be beneficially credited to a stabilization account the
arrangements regarding which shall be a matter exclusively for ▇▇▇▇▇▇▇ Sachs and
its affiliates, the Hong Kong Underwriters and the International Underwriters
governed by the Intersyndicate Agreement, or otherwise as agreed between them.
9.2 Liability: For the avoidance of doubt, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall not be
responsible or liable to the Selling Shareholder or the Company for any breach
of the provisions in this Agreement by any Hong Kong Underwriter (other than
itself in its capacity as a Hong Kong Underwriter).
10. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
10.1 The Warrantors: The Warrantors, jointly and severally, represent,
warrant and undertake to each of ▇▇▇▇▇▇▇ Sachs and the other Hong Kong
Underwriters in the terms set out in Part A of Schedule 4. The Selling
Shareholder severally represents, warrants and undertakes to each of ▇▇▇▇▇▇▇
▇▇▇▇▇ and the other Hong Kong Underwriters in the terms set out in Part B of
Schedule 4. The Warrantors accept that each of ▇▇▇▇▇▇▇ Sachs and the Hong Kong
Underwriters is entering into this Agreement in reliance upon each such
representation, warranty and undertaking.
10.2 Separate Warranties: Each Warranty shall be construed separately and
shall not be limited or restricted by reference to or inference from the terms
of any other of the Warranties or any other term of this Agreement.
10.3 Duration: The Warranties shall remain in full force and effect
notwithstanding completion of the Hong Kong Public Offering.
10.4 Repetition: The Warranties are given on and as at the date of this
Agreement with respect to the facts and circumstances subsisting at the date of
this Agreement. In addition, the Warranties shall be deemed to be repeated on
and as at:
(a) the date on which the Hong Kong Prospectus is registered by the
Registrar of Companies in Hong Kong as required by section 342C of the
Companies Ordinance;
(b) the Acceptance Date;
(c) (i) the time immediately prior to the delivery by the Hong Kong
Underwriters of duly completed Hong Kong Application Forms; and
(ii) the time of payment for the Hong Kong Offer Shares to be taken
up,
respectively, pursuant to clause 6.6; and
(d) Closing,
in each case, by reference to the facts and circumstances then subsisting.
Page 24
10.5 Notice: If at any time:
(a) any significant new factor likely to affect the Hong Kong Public
Offering which arises between the date of this Agreement and Closing and
come to the attention of either of the Warrantors; or
(b) by reference to the facts and circumstances then existing, prior to the
last of the events on which the Warranties are deemed to be repeated
pursuant to the provisions of clause 10.4, any matter or event comes to
the attention of either of the Warrantors as a result of which any of
the Warranties, if repeated immediately after the occurrence of such
matter or event, would be untrue, inaccurate or misleading in any
material respect or which would or is reasonably likely to render
untrue, inaccurate or misleading in any material respect any statement,
whether of fact or opinion, contained in any of the Hong Kong Offering
Documents if the same were issued immediately after the occurrence of
such matter or event,
the relevant Warrantor shall forthwith notify each of the other parties to this
Agreement (with ▇▇▇▇▇▇▇ ▇▇▇▇▇ to receive notice for itself and on behalf of the
other Hong Kong Underwriters).
10.6 Action to be Taken: If at any time, by reference to the facts and
circumstances then existing, prior to the last of the events on which the
Warranties are deemed to be repeated pursuant to the provisions of clause 10.4,
any matter or event comes to the attention of either of the Warrantors or any of
the Hong Kong Underwriters as a result of which any of the Warranties, if
repeated immediately after the occurrence of such matter or event, would be
untrue, inaccurate or misleading in any material respect or which would or is
reasonably likely to render untrue, inaccurate or misleading in any material
respect any statement, whether of fact or opinion, contained in any of the Hong
Kong Offering Documents if the same were issued immediately after the occurrence
of such matter or event, the relevant Warrantor or such Hong Kong Underwriter
(as the case may be) shall forthwith notify ▇▇▇▇▇▇▇ Sachs (on behalf of itself
and each other Hong Kong Underwriter) and the other Warrantors (as the case may
be) and, without prejudice to any other rights of any party, the Company (for
itself and on behalf of the Selling Shareholder) and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (for itself
and on behalf of the Hong Kong Underwriters) shall forthwith consult with a view
to agreeing, if the Hong Kong Prospectus has already been registered with the
Registrar of Companies in Hong Kong or distributed (as the case may be), what
announcement or circular or document or supplemental prospectus or listing
document, if any, should be issued, published, distributed or made available or
what other act or thing should be done. Subject to clause 20.2, neither the
Warrantors nor the Hong Kong Underwriters shall issue, publish, distribute or
make publicly available any such announcement, circular or document or
supplemental prospectus or listing document without, in the case of the
Warrantors, the prior written consent of ▇▇▇▇▇▇▇ Sachs (for itself and on behalf
of the Hong Kong Underwriters) or, in the case of the Hong Kong Underwriters,
the Company (in each case, such consent not to be unreasonably withheld or
delayed).
10.7 Further Obligations in respect of Warranties: The Warrantors will use
their commercially reasonable endeavours not to, and will use their reasonable
endeavours to procure that none of their affiliates will do or omit to do
anything which may cause
Page 25
any of the representations or warranties given pursuant to clause 10 to be
untrue in any material respect at any time on which such representations and
warranties are deemed to be given (assuming such representations or warranties
are to be repeated at the relevant time by reference to the facts and
circumstances then subsisting).
10.8 Further Obligations in respect of Contracts: The Warrantors will not,
and will use their commercially reasonable endeavours to procure that none of
their affiliates will, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ (such
consent not to be unreasonably withheld or delayed), at any time immediately
prior to the commencement of dealings in the Shares on the Hong Kong Stock
Exchange enter into any contract or commitment of an unusual or onerous nature
outside the ordinary and usual course, whether or not that contract, if entered
into prior to the date hereof, would constitute a material contract for the
purpose of the Hong Kong Prospectus.
10.9 No Claim: No claim shall be made against ▇▇▇▇▇▇▇ Sachs or any of the
Hong Kong Underwriters or against any other Indemnified Person as defined in
clause 13 by either of the Warrantors or any of their affiliates to recover any
damage, cost, charge or expense which either of the Warrantors, the Directors or
any of the affiliates of either of the Warrantors may suffer or incur by reason
of or arising out of either carrying out by ▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Hong Kong
Underwriters or any of them of the work to be done by ▇▇▇▇▇▇▇ Sachs or the Hong
Kong Underwriters or any of them pursuant hereto or the performance of their
respective obligations hereunder or otherwise in connection with the Hong Kong
Offering Documents or the Preferential Offering Documents (whether in
performance of its duties as underwriter or financial adviser or otherwise) save
for any loss or damage arising solely out of any fraud, wilful default, gross
negligence or negligence having a material adverse effect on the Global Offering
or the Hong Kong Public Offering or the Group taken as a whole of the relevant
person.
11. FURTHER UNDERTAKINGS
11.1 The Company: The Company undertakes to each of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the
other Hong Kong Underwriters that:
(a) the Company will use commercially reasonable endeavours to comply in all
respects with the terms and conditions of the Hong Kong Public Offering
and the Preferential Offering and do all such acts and things (including
without limitation executing any documents) as may be necessary or
appropriate to implement the Hong Kong Public Offering and the
Preferential Offering, in particular, without limitation:
(i) to comply with the obligations imposed upon it by the Companies
Ordinance and the Listing Rules in respect of or by reason of
the making of the Hong Kong Public Offering and the Preferential
Offering, including without limitation, the making of all
necessary filings with the Registrar of Companies in Hong Kong
and the Hong Kong Stock Exchange and the making available for
inspection in Hong Kong of the documents and in the manner
referred to in the section headed "Documents available for
inspection" of Appendix XI to the Hong Kong Prospectus during
the period specified in that section; and
Page 26
(ii) as soon as practicable following announcement of the basis of
allocation of the Hong Kong Offer Shares and the Reserved Shares
and in any event no later than the relevant times set out in the
Hong Kong Prospectus, to cause definitive share certificates
representing the Hong Kong Offer Shares and the Reserved Shares
to be posted or made available for collection in accordance with
the terms of the Hong Kong Public Offering to successful
applicants or, as the case may be, procure that the share
certificates for Hong Kong Offer Shares in respect of which
successful applicants have elected for delivery into CCASS shall
be duly delivered to the depositary for Hongkong Clearing for
credit to the stock account of such CCASS participant(s) as may
be specified for such purpose by or on behalf of the relevant
applicant;
(b) the Company will use all reasonable endeavours to procure that the
Principal Share Registrar, the Branch Share Registrar and the Receiving
Bankers will comply with the terms of the Principal Registrar's
Agreement, the Branch Registrar's Agreement, the Multiple Applications
Letter and the Receiving Bankers' Agreement and will do all such acts
and things as may be required to be done by each of them and by the time
specified or necessary in connection with the Global Offering and in
particular, but without limitation, to provide ▇▇▇▇▇▇▇ Sachs with such
information and assistance as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may reasonably require for
the purposes of determining the level of acceptances under the Hong Kong
Public Offering and the basis of allocation of the Hong Kong Offer
Shares. None of the terms of the appointments of the Principal Share
Registrar, the Branch Share Registrar and the Receiving Bankers shall be
amended without the prior written consent of ▇▇▇▇▇▇▇ Sachs (on behalf of
the Hong Kong Underwriters);
(c) the Company will use commercially reasonable endeavours to comply with
the Listing Rules in relation to supplemental listing documents to the
Hong Kong Prospectus and further agrees, subject to clause 20.2, not to
issue, publish, distribute or make available any announcement, circular
or document in connection with the Hong Kong Public Offering and the
Preferential Offering without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇
(such consent not to be unreasonably withheld or delayed);
(d) the Company will use commercially reasonable endeavours to (A) comply
with the Hong Kong Stock Exchange's rules or other requirements to
publish and disseminate to the public, under certain circumstances,
information affecting any estimated financial information in the Hong
Kong Prospectus and (B) announce in a press announcement any information
so required by the Hong Kong Stock Exchange to be published and
disseminated to the public in connection with the Hong Kong Public
Offering; provided, however, that no such press announcement shall be
issued by the Company without having been submitted to ▇▇▇▇▇▇▇ Sachs for
its review not less than two business days prior to such issuance, or
such lesser period of time as is necessary for the Company to avoid
violation of any law or regulation applicable to it;
(e) the Company will, in compliance with the Listing Rules, deliver to the
Hong Kong Stock Exchange the declaration in the form set out in Appendix
5, Form F of the Listing Rules acceptable to the Hong Kong Stock
Exchange;
Page 27
(f) the Company will procure that none of the Directors or their respective
associates and other connected persons (as defined in the Listing Rules)
of the Company will himself (or through a company controlled by him)
apply for any Reserved Shares either in his or its own name or through
nominees unless permitted to do so under the Listing Rules;
(g) the Company will maintain a listing for the Shares on the Hong Kong
Stock Exchange for at least one year after the Listing Date except
following a withdrawal of such listing which has been approved by the
relevant shareholders of the Company in accordance with the Listing
Rules or following an offer (within the meaning of the Hong Kong Code on
Takeovers and Mergers) for the Company becoming unconditional;
(h) the Company will procure that the audited accounts of the Company for
the financial years ending 31 December 2004 and 31 December 2005 will be
prepared on a basis consistent in all material respects with the
accounting policies adopted for the purposes of the financial statements
contained in the report of the Reporting Accountants set out in Appendix
I to the Hong Kong Prospectus; and
(i) the Company will not, at any time after the date of this Agreement up to
and including the date on which all of the Conditions are fulfilled (or
waived) in accordance with this Agreement, amend or agree to amend the
Memorandum and Articles of Association of the Company save as requested
by the Hong Kong Stock Exchange.
11.2 Restrictions on Allotment etc.: The Company undertakes to the Hong Kong
Underwriters, that except pursuant to the Global Offering (including pursuant to
the Over-Allocation Option) or pursuant to the Share Option Scheme, at any time
from the date of this Agreement until the date falling 6 months after the
Listing Date, the Company will not without ▇▇▇▇▇▇▇ Sachs's prior written consent
(on behalf of itself and the Hong Kong Underwriters) and unless in compliance
with the requirements of the Listing Rules:
(a) allot, issue, offer, sell, pledge, contract to sell, hedge or grant any
option or right to subscribe or purchase, agree to allot or issue or
otherwise dispose of, directly or indirectly, or repurchase, any Shares
or any securities exchangeable or convertible into Shares or which carry
rights to subscribe or purchase Shares;
(b) enter into any swap or other arrangement that transfers, in whole or in
part, any of the economic consequence of ownership of any Shares; or
(c) offer to or agree to do any of the foregoing or announce any intention
to do so,
whether any such transactions described in (a) or (b) above is to be settled by
delivery of share capital or such other securities, in cash or otherwise.
11.3 The Selling Shareholder: The Selling Shareholder undertakes with the
Hong Kong Underwriters and the Company that:
Page 28
(a) the Selling Shareholder will use all reasonably commercial endeavours
comply in all respects with its obligations under the terms and
conditions of the Hong Kong Public Offering and the Preferential
Offering and do all such acts and things (including without limitation
executing any documents) as may be necessary to implement the Hong Kong
Public Offering and the Preferential Offering, in particular, without
limitation, to deliver the Hong Kong Offer Shares and Reserved Shares to
successful applicants under the Hong Kong Public Offering and the
Preferential Offering (as the case may be) and, if any of the Hong Kong
Offer Shares falls to be taken up pursuant to clause 6.1, to the
applicants under clause 6.6 or, as the case may be, as ▇▇▇▇▇▇▇ ▇▇▇▇▇
direct;
(b) the Selling Shareholder will pay any tax, duty, levy, fee or other
charge or expense (if any) which may be payable in the Cayman Islands or
Hong Kong by itself, whether pursuant to the requirement of any law,
rule or regulation or otherwise, in connection with the transfer of the
Hong Kong Offer Shares, the Global Offering, the execution and delivery
of, and the performance of any of the provisions under, this Agreement
and the Company agrees to reimburse the Selling Shareholder for the
amounts so paid;
(c) it has no present intention of disposing of any Shares (or any
beneficial interest therein) beneficially owned or to be owned or
controlled by it, except pursuant to the DoCoMo Acquisition and the
Stock Borrowing Agreement; and
(d) except pursuant to (i) the Global Offering (including pursuant to the
Over-Allocation Option) or (ii) the Stock Borrowing Agreement or (iii)
the transfer by it of Shares pursuant to the DoCoMo Acquisition upon
completion of the Global Offering:
(i) at any time after the date of this Agreement up to the date
which is six months from the Listing Date, it will not, without
the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ (on behalf of the
Hong Kong Underwriters) and unless in compliance with the
Listing Rules, (A) dispose of any Shares or any direct or
indirect interest therein (including, without limitation, any
option, mortgage, pledge, charge or other security interest) or
any securities convertible into, exercisable or exchangeable
for, any of the foregoing or enter into any swap or other
arrangement that transfers, in whole or in part, any of the
economic consequence of ownership of any Shares or offer to or
agree to do any of the foregoing or announce any intention to do
so (other than in each case in relation to any Shares in which
it or its subsidiaries may become interested following the
Listing Date) or (B) dispose of any direct or indirect interests
in any company or entity holding any Shares (other than
companies or entities holding solely Shares acquired following
the Listing Date); and
(ii) during the six-month period commencing on the expiry of the date
which is six months from the Listing Date, in the event that it
enters into any of the foregoing transactions in sub-paragraph
(i) above, or agrees or contracts to, or publicly announces any
intention to enter into
Page 29
such transactions, it will take all reasonable steps to ensure
that it will not create a disorderly or false market in the
Shares.
11.4 Restrictions on Application: The Selling Shareholder agrees with ▇▇▇▇▇▇▇
Sachs and the Hong Kong Underwriters that, without ▇▇▇▇▇▇▇ Sachs's consent, it
will not (as principal), and shall procure that (so far as is relevant to it)
its associates (as the term is defined in the Listing Rules) shall not (as
principal), apply for any Hong Kong Offer Shares either in his own name or
through nominees.
11.5 Benefit of this Clause: Save as provided otherwise, the undertakings in
this clause are given for the benefit only of ▇▇▇▇▇▇▇ Sachs and the Hong Kong
Underwriters, who may agree to waive or grant consents in respect of any of them
on such terms as ▇▇▇▇▇▇▇ ▇▇▇▇▇ (for itself and on behalf of the other Hong Kong
Underwriters) see fit.
11.6 Effect of Undertakings: The undertakings in this clause 11 shall remain
in full force and effect notwithstanding the completion of the Global Offering
and all matters contemplated in this Agreement.
12. TERMINATION
12.1 Termination Events: ▇▇▇▇▇▇▇ Sachs (for itself and on behalf of the Hong
Kong Underwriters) may in its absolute discretion terminate this Agreement by
giving notice to the Selling Shareholder and the Company at any time at or prior
to 8:00 a.m. on the Listing Date, if at or prior to such time:
(a) there shall have developed, occurred, existed or come into force:
(i) any change or development involving a prospective change or
development, or any event or series of events resulting in or
representing a change or development, or prospective change or
development, in local, national, regional or international
financial, political, military, industrial, economic, fiscal or
market conditions (including, without limitation, conditions in
stock and bond markets, money and foreign exchange markets and
inter-bank markets, a change in the system under which the value
of the Hong Kong currency is linked to that of the currency of
the United States, or a devaluation of the Renminbi against any
foreign currencies) in or affecting Hong Kong, the PRC, Japan,
the United States, the United Kingdom, the Cayman Islands, India
or Israel; or
(ii) any new law or regulation or any change in existing law or
regulation, or any change in the interpretation or application
thereof by any court or other competent authority in or
affecting Hong Kong, the PRC, Japan, the United States, the
United Kingdom, the Cayman Islands, India or Israel; or
(iii) any event or series of events in the nature of force majeure
(including, without limitation, acts of government, strikes,
lock-outs, fire, explosion, flooding, civil commotion, acts of
war, acts of terrorism (whether or not responsibility has been
claimed), acts of God, accident
Page 30
or interruption or delay in transportation) in or affecting Hong Kong,
the PRC, Japan, the United States, the United Kingdom, the Cayman
Islands, India or Israel; or
(iv) any local, national, regional or international outbreak or
escalation of hostilities (whether or not war is or has been
declared) or other state of emergency or calamity or crisis in
or affecting Hong Kong, the PRC, Japan, the United States, the
United Kingdom, the Cayman Islands, India or Israel; or
(v) the imposition or declaration of (A) any suspension or material
limitation on trading in securities generally on the Hong Kong
Stock Exchange, the New York Stock Exchange and/or the London
Stock Exchange (B) a suspension or material limitation in
trading in the Company's securities on the New York Stock
Exchange or (C) a general moratorium on commercial banking
activities or disruption in commercial banking activities or
foreign exchange trading or securities settlement or clearance
services in or affecting Hong Kong, the United States or the
United Kingdom; or
(vi) any change or prospective change in taxation or exchange
controls, currency exchange rates or foreign investment
regulations in Hong Kong or the Cayman Islands or any other
relevant jurisdiction adversely affecting Hong Kong or the
Cayman Islands or any other relevant jurisdiction or affecting
an investment in Shares; or
(vii) any material litigation or claim being threatened or instigated
against any member of the Group; or
(b) there has come to the notice of ▇▇▇▇▇▇▇ ▇▇▇▇▇ or any of the Hong Kong
Underwriters that:
(i) any statement contained in the Hong Kong Offering Documents was
or has become untrue, incorrect or misleading in any respect; or
(ii) any matter has arisen or has been discovered which would, had it
arisen immediately before the Prospectus Date, not having been
disclosed in the Hong Kong Prospectus, constitute an omission
therefrom; or
(iii) any matter or event showing any of the warranties given by the
Selling Shareholder or the Company in this Agreement to be
untrue or misleading in any respect when first given or
repeated; or
(iv) any event, act or omission which gives or is likely to give rise
to any liability of any of the Company or the Selling
Shareholder pursuant to the indemnities given by them in this
Agreement; or
(v) any breach of any of the obligations of any party (other than
the Hong Kong Underwriters) to this Agreement; or
Page 31
(vi) any adverse change or prospective adverse change in the business
or in the financial or trading position of the Group as a whole,
and which, in any such case in either (a) or (b) above and in the judgment of
▇▇▇▇▇▇▇ Sachs (for itself and on behalf of the other Hong Kong Underwriters):
(A) is or will be or is reasonably likely to be materially adverse to, or
materially and prejudicially affect, the business or financial or
trading position or prospects of the Group as a whole; or
(B) has or will have or is reasonably likely to have a material adverse
effect on the success of the Global Offering and/or make it
impracticable or inadvisable for any material part of this Agreement,
the Hong Kong Public Offering or the Global Offering to be performed or
implemented as envisaged; or
(C) makes it inadvisable or impracticable to proceed with the Hong Kong
Public Offering and/or the Global Offering or the delivery of the Offer
Shares on the terms and in the manner contemplated by the Hong Kong
Prospectus.
12.2 Consequences of Termination: Upon the termination of this Agreement
pursuant to the provisions of clause 2.4 or clause 12.1:
(a) each of the parties hereto shall cease to have any rights or obligations
under this Agreement, save in respect of the provisions of this clause
and clauses 13, 18, 23 to 26 (inclusive) and any rights or obligations
which may have accrued under this Agreement prior to such termination;
(b) with respect to the Hong Kong Public Offering, all payments made by the
Hong Kong Underwriters or any of them pursuant to clause 6.6 and/or by
successful applicants under Valid Applications shall be refunded
forthwith (in the latter case the Selling Shareholder and the Company
shall procure that the Branch Share Registrar and the Nominee despatch
refund cheques to all applicants under the Hong Kong Public Offering in
accordance with the Branch Registrar's Agreement and the Receiving
Bankers' Agreement); and
(c) the Selling Shareholder shall pay to ▇▇▇▇▇▇▇ ▇▇▇▇▇ such fees and
expenses incurred by ▇▇▇▇▇▇▇ Sachs and the Hong Kong Underwriters in
accordance with the terms of the fees and expenses letter described in
clause 8.3.
13. INDEMNITY
13.1 Indemnity: Each of the Company and the Selling Shareholder (each on
Indemnifying Party) jointly and severally undertakes to indemnify and keep
indemnified (on an after-tax basis) and hold harmless ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Hong
Kong Underwriters or any of them (for itself and on trust for its affiliates and
their respective partners, directors, officers, employees, agents and assignees
(the Related Parties)) (each an Indemnified Person) from and against (i) all and
any actions, claims (whether or not any such claim involves or results in any
actions or proceedings), demands, investigations and proceedings from time to
time alleged, made or brought or threatened to be made or brought (together the
Actions), and (ii) all charges, losses, damages, liabilities, payments, costs or
expenses including legal
Page 32
fees and taxes (including stamp duty and any penalties and/or interest arising
in respect of any taxes), including without limitation, all payments, costs or
expenses reasonably and properly made or incurred arising out of or in
connection with the settlement of any Actions or in investigating, disputing or
defending the same or the enforcement of any such settlement or any judgment
obtained in respect of any Actions whether or not such claim is successful,
compromised or settled, and any right of action which may be exercised (together
the Losses) which may be suffered, made or incurred by, an Indemnified Person
(with such amount of indemnity to be paid to each of the Hong Kong Underwriters
to cover all the Actions against and Losses incurred by such party and its
Related Parties) arising out of or in connection with:
(a) the performance by any of ▇▇▇▇▇▇▇ Sachs and/or the Hong Kong
Underwriters of its or their obligations under this Agreement; or
(b) the issue, publication, distribution or making available of any of the
Hong Kong Offering Documents, the Preferential Offering Documents, the
International Offering Circular or the US Prospectus (including any
amendment thereof or supplement thereto) and/or any announcement or
offering material whatsoever in connection with the Global Offering
(whether or not approved by ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to clause 20); or
(c) the sale and transfer of the Offer Shares; or
(d) any act or omission resulting in a breach or alleged breach on the part
of the Company or the Selling Shareholder of any of the provisions of
this Agreement or the International Underwriting Agreement; or
(e) any failure or alleged failure by any of the Directors to comply with
their respective obligations under the Listing Rules or any other
applicable Laws or regulations; or
(f) any of the Warranties being untrue, inaccurate or misleading or
otherwise breached or being alleged by any third party to be untrue,
inaccurate or misleading or otherwise breached; or
(g) the Hong Kong Public Offering failing, or being alleged to fail, to
comply with the requirements of the Listing Rules or any other
applicable Laws or regulations; or
(h) any statement in any of the Hong Kong Offering Documents, the
Preferential Offering Documents, the International Offering Circular or
the US Prospectus or any supplement or amendment thereto being, or being
alleged to be, defamatory of any person; or
(i) any untrue statement or alleged untrue statement of a material fact
contained in any Hong Kong Offering Document, International Offering
Circular or the US Prospectus or any supplement or amendment thereto, or
any omission or alleged omission to state therein a material fact
necessary in order to make the statements therein not misleading; or
Page 33
(j) any breach or alleged breach of the laws, rules or regulations of any
country or territory resulting from the distribution of the Hong Kong
Offering Documents or the International Offering Circular or the US
Prospectus and/or any offer, sale or distribution of the Shares
otherwise than in accordance with and on the terms of those documents
and this Agreement; or
(k) the settlement of any Proceedings by any Governmental Authority,
commenced or threatened,
PROVIDED THAT (i) the indemnity in respect of any Action or Loss resulting from
sub-clauses (a), (b), (g) or (j) above shall not be available to any Indemnified
Person to the extent that such Action or Loss is finally judicially determined
to have been caused solely by fraud, wilful default, gross negligence or
negligence having a material adverse effect on the Global Offering or the Hong
Kong Public Offering or the Group taken as a whole on the part of such
Indemnified Person; and (ii) any settlement or compromise of any Action or Loss
by any of ▇▇▇▇▇▇▇ ▇▇▇▇▇, the Hong Kong Underwriters or any other Indemnified
Person shall be made without prejudice to any claim, action or demand which any
of ▇▇▇▇▇▇▇ Sachs, the Hong Kong Underwriters or any other Indemnified Person may
have or make against any Indemnifying Party under this clause or otherwise under
this Agreement.
13.2 Notification of Proceedings: In case any proceeding (including any
governmental investigation) shall be instituted involving any Indemnified
Person, such Indemnified Person shall promptly notify the Indemnifying Party in
writing and such Indemnifying Party, shall pay the reasonable fees and
disbursements of counsel properly incurred in connection with such proceeding.
Such Indemnified Person shall, subject to any requirement imposed by any insurer
of the Indemnified Person, consult with the Company, the Selling Shareholder and
▇▇▇▇▇▇▇ ▇▇▇▇▇ and keep them informed in relation to such proceeding. Any failure
by an Indemnified Person to notify or consult any Indemnifying Party in
accordance with this clause shall not in any way relieve or reduce the
obligations of any Indemnifying Party to indemnify each and every Indemnified
Person under this clause 13.
13.3 Proceedings: Following notification of the commencement of any such
proceeding against any Indemnified Person pursuant to clause 13.2, the relevant
Indemnifying Party shall be entitled to participate in such proceedings and has
the option, jointly with any other Indemnifying Party, to assume the defence
thereof, with counsel satisfactory to such Indemnified Person (which shall not,
except with the consent of the Indemnified Person, be counsel to the Indemnified
Person), and, after notice from the Indemnifying Party to the Indemnified Person
of its election to assume the defence of an action, the Indemnifying Party shall
not be liable to such Indemnified Person for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such Indemnified
Person, in connection with the defence thereof other than reasonable costs of
investigation.
13.4 Legal Counsel: Legal counsel to the Indemnified Persons shall be
selected by ▇▇▇▇▇▇▇ Sachs.
13.5 Settlement: No Indemnifying Party shall, without the prior written
consent of the Indemnified Person, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental
Page 34
agency or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this clause 13
(whether or not the Indemnified Persons are actual or potential parties
thereto), unless such settlement, compromise or consent:
(a) includes an unconditional release of each Indemnified Person from all
liabilities arising out of such litigation, investigation, proceeding or
claim; and
(b) does not include a statement as to the admission of fault by or on
behalf of any Indemnified Person.
13.6 Effect: The indemnities in this clause shall remain in full force and
effect notwithstanding completion of the Hong Kong Public Offering and the
Preferential Offering or the rescission or termination of this Agreement. The
provisions of the indemnities contained in this clause are not affected by any
other terms (including, subject to clause 13.7, any limitations) set out in this
Agreement.
13.7 Limitation on liability of the Selling Shareholder: The maximum
aggregate amount of the liability of the Selling Shareholder under this clause
13 and under sub-section 8(a) of the International Underwriting Agreement shall
not exceed the sum of (i) the gross proceeds of the International Offering
(determined by multiplying the purchase price per ADS by the total number of
ADSs sold under the International Offering (including proceeds from shares
delivered as Shares under the International Offering)); (ii) the gross proceeds
of the Hong Kong Public Offering (determined by multiplying the Offer Price by
the total number of Hong Kong Offer Shares); and (iii) any legal or other
expenses reasonably incurred by the Hong Kong Underwriters and/or the
International Underwriters in connection with investigating or defending any
action or claim for which the Hong Kong Underwriters and/or the International
Underwriters (as the case may be) are entitled to reimbursement by the Selling
Shareholder in accordance with clause 13.1 hereof (in the case of the Hong Kong
Underwriters) or sub-section 8(a) of the International Underwriting Agreement
(in the case of the International Underwriters).
14. REMEDIES, WAIVERS AND RELEASE
14.1 Delay or Omission: No delay or omission on the part of any party hereto
in exercising any right, power or remedy under this Agreement shall:
(a) impair such right, power or remedy; or
(b) operate as a waiver thereof.
14.2 Single or Partial Exercise: The single or partial exercise of any right,
power or remedy under this Agreement shall not preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
14.3 Cumulative and Not Exclusive: The rights, powers and remedies provided
in this Agreement are cumulative and not exclusive of any rights, powers and
remedies provided by law.
14.4 Release or Compromise: Each party hereto may expressly release or
compromise the liability of any other party hereto or grant time or other
indulgence to
Page 35
any party hereto in any way without releasing or reducing or compromising the
liability of such party to any other party or of any other party hereto in any
other way.
15. ASSIGNMENT
15.1 Binding: This Agreement shall be binding on, and enure for the benefit
of, the parties hereto and their respective successors, personal representatives
and permitted assigns.
15.2 Assignment: Any of the Hong Kong Underwriters may assign to any
affiliate the benefits of and interests and rights in or arising under this
Agreement. Save as aforesaid, no other party hereto shall assign or transfer all
or any part of any benefit of, or interest or right in, this Agreement, or any
benefit, interest, right or obligation arising under this Agreement.
16. FURTHER ASSURANCE
16.1 Further Assurance: The Company and the Selling Shareholder shall from
time to time, on being required to do so by ▇▇▇▇▇▇▇ ▇▇▇▇▇ now or at any time in
the future, use reasonable endeavours to do or procure the doing of such acts
and/or execute or procure the execution of such documents as ▇▇▇▇▇▇▇ Sachs may
reasonably consider necessary to give full effect to this Agreement and securing
to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Hong Kong Underwriters or any of them the full benefit
of the rights, powers and remedies conferred upon them or any of them in this
Agreement.
17. ENTIRE AGREEMENT
17.1 Entire Agreement: This Agreement and any other documents referred to in
this Agreement constitute the whole and only agreement between the Company, the
Selling Shareholder, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the other Hong Kong Underwriters relating
to the underwriting of the Hong Kong Public Offering and supersedes and
extinguishes any other prior drafts, agreements, undertakings, representations,
warranties and arrangements of any nature whatsoever, whether or not in writing,
relating thereto made or given by any other party or any other person, whether
or not in writing, at any time prior to the execution of this Agreement
(Pre-contractual Statements).
17.2 Reliance: Each party hereto acknowledges that in entering into this
Agreement on the terms set out in this Agreement it is not relying upon any
Pre-contractual Statement which is not expressly set out herein or the documents
referred to herein.
17.3 Right of Action: No party shall have any right of action (except in the
case of fraud) against any other party to this Agreement arising out of or in
connection with any Pre-contractual Statement except to the extent that such
Pre-contractual Statement is repeated in this Agreement or the documents
referred to herein.
18. AMENDMENT OR VARIATION
18.1 Amendment or Variation: This Agreement may only be amended or varied in
writing signed by each of the parties hereto.
Page 36
19. NOTICES
19.1 Form and Language: Any notice or other communication given or made under
this Agreement shall be in writing (other than writing on the screen of a visual
display unit or other similar device which shall not be treated as writing for
the purpose of this clause) and shall, unless otherwise specified, be in
English.
19.2 Delivery: Any such notice or other communication shall be addressed as
provided in clause 19.3 and, if so addressed, shall be deemed to have been duly
given or made as follows:
(a) if sent by personal delivery, upon delivery at the address of the
relevant party;
(b) if sent by post, five Business Days after the date of posting; and
(c) if sent by facsimile, upon despatch to the facsimile number of the
recipient, with the production of a transmission report by the machine
from which the facsimile was sent which indicates that the facsimile was
sent in its entirety to the facsimile number of the recipient and
provided that a confirmation copy of such notice or communication shall
be sent by post to the addressee concerned not later than the Business
Day immediately following the date of despatch of the facsimile.
19.3 Addresses: The relevant addressee, address and facsimile number of each
party hereto for the purposes of this Agreement, subject to clause 19.4 are:
Name of Party Address Facsimile No.
---------------------------- ---------------------------- --------------------
The Company 18/F, Two Harbourfront (▇▇▇) ▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: The Company
Secretary
The Selling Shareholder 22/F, ▇▇▇▇▇▇▇▇▇ House (852) 2128 1778
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇: The Company
Secretary
▇▇▇▇▇▇▇ Sachs 68th Floor (▇▇▇) ▇▇▇▇ ▇▇▇▇
(for itself and on behalf of ▇▇▇▇▇▇ Kong Center
the Hong Kong Underwriters) ▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: Special Execution
Group
Page 37
19.4 Change of Details: A party may notify the other parties to this
Agreement of a change to its relevant addressee, address or facsimile number for
the purposes of clause 19.3 provided that such notification shall only be
effective on:
(a) the date specified in the notification as the date on which the change
is to take place; or
(b) if no date is specified or the date specified is earlier than the date
on which a notice is deemed under clause 19.2 above to have been duly
given, the date on which such notice is so deemed to have been duly
given.
20. ANNOUNCEMENTS
20.1 No Announcement: Subject to clause 20.2, no announcement or press
release concerning the Hong Kong Public Offering, the Preferential Offering or
any ancillary matter shall be made by any of the parties to this Agreement
without the prior written approval of ▇▇▇▇▇▇▇ Sachs (such approval not to be
unreasonably withheld or delayed).
20.2 Permitted Announcement: Any party to this Agreement may make an
announcement concerning the Hong Kong Public Offering, the Preferential Offering
or any ancillary matter if and to the extent:
(a) required by Law, the Listing Rules or an order of a court of competent
jurisdiction;
(b) required by any securities exchange or regulatory or governmental body
to which such party is subject or submits, wherever situated, including,
without limitation, the Hong Kong Stock Exchange, whether or not the
requirement has the force of law; or
(c) ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company have given prior written approval to the
making of the announcement,
PROVIDED THAT in relation to paragraphs (a) and (b) above any such announcement
shall be made only after consultation with ▇▇▇▇▇▇▇ Sachs.
20.3 Period: The restrictions contained in this clause shall continue to
apply for a period of three months after the Listing Date. The Company shall
procure compliance by its subsidiaries and affiliates with the provisions of
this clause.
21. TIME OF ESSENCE
21.1 Time of Essence: Any time, date or period referred to in this Agreement
may be extended by mutual agreement between the Company, the Selling Shareholder
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (for itself and on behalf of the other Hong Kong
Underwriters). Save as otherwise expressly provided, as regards any date or
period originally fixed or any date or period so extended as aforesaid, time is
of the essence of this Agreement.
Page 38
22. INVALIDITY
22.1 Effect of Invalidity: If at any time any provision of this Agreement is
or becomes illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, that shall not affect or impair:
(a) the legality, validity or enforceability in that jurisdiction of any
other provision of this Agreement; or
(b) the legality, validity or enforceability under the law of any other
jurisdiction of that or any other provision of this Agreement.
23. GOVERNING LAW
23.1 Hong Kong Law: This Agreement shall be governed by and construed in
accordance with Hong Kong law.
24. DISPUTE RESOLUTION
24.1 Jurisdiction: The parties to this Agreement irrevocably agree that the
courts of Hong Kong are to have exclusive jurisdiction to settle any disputes
which may arise out of or in connection with this Agreement and that accordingly
any Proceedings, out of or in connection with this Agreement may be brought in
such courts.
24.2(a) Notwithstanding clause 24.1 above, each of the Company, the Selling
Shareholder and ▇▇▇▇▇▇▇ Sachs (for and on behalf of the Hong Kong
Underwriters) shall have the option to refer any disputes which may
arise out of or in connection with this Agreement to be finally resolved
by arbitration in accordance with this clause 24.2. Upon written notice
by the Company, the Selling Shareholder or ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to
this clause 24.2, such disputes shall be referred to and finally
resolved by arbitration in accordance with the UNCITRAL Arbitration
Rules (the Rules) as in force from time to time and as may be amended by
the rest of this clause 24.
(b) There shall be three arbitrators. The appointing authority shall be the
Hong Kong International Arbitration Centre (HKIAC).
(c) Where there are multiple parties, whether as claimant or as respondent,
the multiple claimants, jointly, shall appoint a claimants-appointed
arbitrator, and the multiple respondents, jointly, shall appoint a
respondents-appointed arbitrator for the purpose of Article 7(1) of the
Rules. The claimants-appointed arbitrator and the respondents-appointed
arbitrator shall then choose the third arbitrator who will act as
chairman of the arbitral tribunal.
(d) The seat of arbitration shall be Hong Kong, and the arbitration shall be
administered by HKIAC.
(e) The governing law of the arbitration proceedings shall be the laws of
Hong Kong.
(f) The language to be used in the arbitral proceedings shall be English.
Page 39
(g) By agreeing to arbitration pursuant to this clause 24.2, the parties
hereto irrevocably waive their right to any form of appeal, review or
recourse to any state court or other judicial authority, insofar as such
waiver may be validly made and to the fullest extent permitted by
applicable laws.
(h) The award shall be given by a majority decision. If there be no
majority, the award shall be made by the Chairman of the arbitral
tribunal alone.
24.3 Agent for Service: The Selling Shareholder hereby irrevocably authorizes
and appoints the Company at the address set out in clause 19.3 to accept service
of all legal process arising out of or connected with this Agreement and service
on such persons shall be deemed to be service on the Selling Shareholder.
25. IMMUNITY
25.1 Waiver: To the extent that any party hereto may in any court proceedings
arising out of or in connection with this Agreement or in any proceedings taken
for the enforcement of any determination, decision, order or award made in such
court proceedings claim for itself or its assets immunity from suit or other
legal process or to the extent that in any such court or enforcement proceedings
there may be attributed to itself or its assets such immunity (whether or not
claimed), such party hereby irrevocably waives such immunity and consents, in
respect of any such court or enforcement proceedings, to the giving of any
relief or the issue of any process including, without limitation, the making,
enforcement or execution against property whatsoever (irrespective of its use or
intended use) to the full extent permitted by applicable laws.
26. CURRENCY INDEMNITY
26.1 Conversion into Another Currency: If for the purposes of obtaining
judgment in any court by the Company, the Selling Shareholder, ▇▇▇▇▇▇▇ Sachs or
any other Hong Kong Underwriter as the case may be (for the purposes of this
clause, the Claiming Party) it is necessary to convert a sum due hereunder into
any currency other than HK dollars, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall be
the rate at which in accordance with normal banking procedures such Claiming
Party could purchase HK dollars with such other currency in Hong Kong on the
Business Day preceding that on which final judgment is given.
26.2 Judgement in Another Currency: The obligation of any party hereto in
respect of any sum due from such party (for the purposes of this clause, the
Obligor) to any Claiming Party shall, notwithstanding any judgment in a currency
other than HK dollars, not be discharged until the first Business Day following
receipt by such Claiming Party of any sum adjudged to be so due in such other
currency, on which (and only to the extent that) such Claiming Party may in
accordance with normal banking procedures purchase HK dollars with such other
currency.
26.3 Obligor's Indemnity: If the HK dollars purchased pursuant to this clause
are less than the sum originally due to the Claiming Party, such Obligor agrees,
as a separate obligation and notwithstanding any such judgment, to indemnify the
Claiming Party against such loss.
Page 40
26.4 Claiming Party's Obligation: If the HK dollars purchased pursuant to
this clause are greater than the sum originally due to the Claiming Party, the
Claiming Party agrees, as a separate obligation and notwithstanding any such
judgment, to repay to the Obligor an amount equal to the excess of the HK
dollars so purchased over the sum originally due hereunder to the Claiming
Party.
27. COUNTERPARTS
27.1 Number of Counterparts: This Agreement may be executed in any number of
counterparts, and by the parties on separate counterparts, but shall not be
effective until each party has executed at least one counterpart.
27.2 Counterparts as One Original: Each counterpart shall constitute an
original of this Agreement, but all the counterparts shall together constitute
but one and the same instrument.
IN WITNESS whereof this Agreement has been executed under hand by or on behalf
of the parties hereto the day and year first above written.
Page 41
SCHEDULE ▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ NUMBER OF HONG
PUBLIC KONG OFFER
OFFERING SHARES
NAME ADDRESS UNDERWRITTEN UNDERWRITTEN
----------------------------------- ------------------------------ -------------- --------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) L.L.C 68/F., ▇▇▇▇▇▇ Kong Center 60% 69,300,000
▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
ABN ▇▇▇▇ ▇▇▇▇ ▇.▇., ▇▇/▇., ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ Branch ▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
and
N M Rothschild & Sons 16/F, Alexandra House 12% 13,860,000
(Hong Kong) Limited, ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
each trading as Hong Kong
ABN AMRO Rothschild
BNP Paribas Peregrine Capital 36/F., Asia Pacific Finance 2% 2,310,000
Limited Tower
▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Celestial Capital Limited 21/F., Low Block 2% 2,310,000
Grand ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Core Pacific - Yamaichi 36/F., Cosco Tower 2% 2,310,000
International (H.K.) Limited Grand ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ Securities Limited 12/F., The Center 2% 2,310,000
▇▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
DBS Asia Capital Limited 16/F., Man ▇▇▇ Building 2% 2,310,000
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
First Shanghai Securities Limited 19/F., Wing On House 2% 2,310,000
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Page 42
PERCENTAGE OF
HONG KONG NUMBER OF HONG
PUBLIC KONG OFFER
OFFERING SHARES
NAME ADDRESS UNDERWRITTEN UNDERWRITTEN
----------------------------------- ------------------------------ -------------- --------------
Guotai Junan Securities (Hong 27/F., Low Block 2% 2,310,000
Kong) Limited Grand ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
The Hongkong and Shanghai Banking ▇▇▇▇▇ ▇▇ 2% 2,310,000
Corporation Limited ▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
KGI Capital Asia Limited 27/F., Asia Pacific Finance 2% 2,310,000
Tower
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇ Eng Securities (Hong Kong) Room 1901 2% 2,310,000
Limited Bank of America Tower
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇-▇▇▇▇▇▇▇ Securities Limited 43/F., Jardine House 2% 2,310,000
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ Securities Limited 28/F., Bank of China Tower 2% 2,310,000
▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Sun Hung Kai International Limited ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 2% 2,310,000
▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Tai Fook Securities Company 25/F., New World Tower 2% 2,310,000
Limited ▇▇-▇▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Page 43
SCHEDULE 2
THE CONDITIONS PRECEDENT DOCUMENTS
PART A : TO BE DELIVERED TO ▇▇▇▇▇▇▇ ▇▇▇▇▇
NOT LATER THAN 5:00 P.M. ON THE BUSINESS DAY PRIOR TO THE PROSPECTUS DATE
1. LEGAL DOCUMENTS
1.1 A certified copy of the resolutions of the sole shareholder of the
Company referred to in paragraph 1(C) of Appendix X to the Hong Kong Prospectus.
1.2 A certified copy of the resolutions of the Directors:
(a) considering the Hong Kong Prospectus in detail in conjunction with the
Verification Notes;
(b) approving and authorizing the execution on behalf of the Company of this
Agreement together with all other agreements and documents in the form
previously approved by or on behalf of the Company as necessary,
convenient or desirable to effect the Global Offering and implement the
listing of the Shares;
(c) approving the Hong Kong Public Offering;
(d) approving the International Offering (including the Preferential
Offering);
(e) approving and authorizing the circulation of the Preliminary Offering
Circular or ratifying the same; and
(f) approving and authorizing the issue and the registration with the
Registrar of Companies in Hong Kong of the Hong Kong Prospectus and the
Application Forms.
1.3 A certified copy of the resolutions of the directors of the Selling
Shareholder:
(a) considering the Hong Kong Prospectus in detail in conjunction with the
Verification Notes;
(b) approving and authorizing the execution on behalf of the Selling
Shareholder of this Agreement together with all other agreements and
documents in the form previously approved by or on behalf of the Company
necessary, convenient or desirable to effect the Global Offering and
implement the listing of the Shares; and
(c) approving the Global Offering.
1.4 One certified copy of the Receiving Bankers' Agreement.
1.5 One certified copy of the Principal Registrar's Agreement.
Page 44
1.6 One certified copy of the Branch Registrar's Agreement.
1.7 One certified copy of the Multiple Applications Letter.
1.8 A copy of each of the service contracts of the Directors.
2. DOCUMENTS RELATING TO THE HONG KONG PUBLIC OFFERING
2.1 Seven printed copies of each of the Hong Kong Prospectus and the
Application Forms, each duly signed by two Directors or their respective duly
authorized attorneys and, if signed by their respective duly authorized
attorneys, certified copies of the relevant power of attorney or authorization
document.
2.2 An original or a copy of the Verification Notes signed by or on behalf
of each person to whom responsibility is therein assigned (other than ▇▇▇▇▇▇▇
Sachs and its legal advisers).
2.3 Two signed originals of the accountants' report dated the Prospectus
Date issued by the Reporting Accountants, the text of which is contained in
Appendix I to the Hong Kong Prospectus.
2.4 Two signed originals of the accountants' report dated the Prospectus
Date issued by the Aircel Reporting Accountants, the text of which is contained
in Appendix IV to the Hong Kong Prospectus.
2.5 Two signed originals dated the Prospectus Date from the Reporting
Accountants addressed to the Hong Kong Underwriters confirming, inter alia, the
indebtedness statement contained in the Hong Kong Prospectus and commenting on
the statement contained in the Hong Kong Prospectus as to the sufficiency of
working capital, such letter to be in the form previously approved by ▇▇▇▇▇▇▇
▇▇▇▇▇ on behalf of the Hong Kong Underwriters.
2.6 Two signed originals of the comfort letter dated the date of this
Agreement from the Reporting Accountants addressed to the Hong Kong Underwriters
in respect of financial information set out in the Hong Kong Prospectus.
2.7 Two certified copies of the letters, summary of values and valuation
certificate dated the Prospectus Date issued by the Property Valuer, the text of
which is contained in Appendix VII to the Hong Kong Prospectus.
2.8 Two certified copies of the letter from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, Cayman
referred to in Appendix VIII to the Hong Kong Prospectus.
2.9 A certified copy of each of the letters referred to in paragraphs 6(K)
and 6(N) of Appendix X to the Hong Kong Prospectus (other than the letter to be
issued by ▇▇▇▇▇▇▇ Sachs) containing consents to the issue of the Hong Kong
Prospectus with the inclusion of references to the respective parties' names,
and where relevant their reports, letters and valuation certificates in the form
and context in which they are included.
Page 45
2.10 One certified copy of a letter from the Registrar of Companies Hong Kong
confirming that the Hong Kong Prospectus has been registered pursuant to section
342C of the Companies Ordinance.
2.11 A letter or facsimile to ▇▇▇▇▇▇▇ ▇▇▇▇▇ (for itself and on behalf of the
Hong Kong Underwriters) from Linklaters confirming that the documents referred
to in the paragraph headed "Documents Delivered to the Registrar of Companies"
in Appendix XI to the Hong Kong Prospectus have been delivered to the Registrar
of Companies in Hong Kong as required by section 342C of the Companies
Ordinance.
2.12 A copy of each of the material contracts referred to in paragraph 4(A)
of Appendix X to the Hong Kong Prospectus (other than this Agreement).
2.13 A certified copy of the certificate as to the accuracy of the Chinese
translation of the Hong Kong Prospectus given by the relevant translator
thereof.
2.14 One certified copy of the undertaking from the Selling Shareholder to
the Company and the Hong Kong Stock Exchange pursuant to Note 3 to Listing Rule
10.07.
3. PRC LEGAL OPINIONS
Two signed original copies of the legal opinion from Commerce & Finance Law
Offices in respect of properties leased by the Group and of the legal opinion
from Commerce & Finance Law Offices in respect of the PRC regulatory approvals
required for the Company's proposed listing, compliance with tax laws, due
incorporation of PRC entities, non-violation of PRC laws and compliance with
licensing and other applicable PRC legal requirements relevant to the Company's
business in forms satisfactory to ▇▇▇▇▇▇▇ Sachs.
4. OTHER DOCUMENTS
4.1 A copy of the confirmation letter from each Director to ▇▇▇▇▇▇▇ ▇▇▇▇▇
confirming that he has, and an original confirmation letter from the Company to
▇▇▇▇▇▇▇ Sachs confirming that the Directors have, read and understood the
memorandum entitled "Memorandum on the Duties and Responsibilities of Directors
of Listed Companies" prepared by Linklaters and that Linklaters had provided a
voice-file explaining the contents of the relevant memorandum to him.
4.2 Two certified copies of the letter of responsibility and authority and
two certified copies of the statements of interests signed by each Director in
the agreed form addressed to the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (for itself and on
behalf of each of the Hong Kong Underwriters).
4.3 A certified copy of each of the following the Memorandum and Articles of
Association of the Company adopted by the sole shareholder of the Company on 3
September 2004.
Page 46
PART B : TO BE DELIVERED TO ▇▇▇▇▇▇▇ SACHS
NOT LATER THAN 5:00 P.M. ON THE BUSINESS DAY PRIOR TO CLOSING
1. Two signed originals of a closing certificate, in a form approved by or
on behalf of ▇▇▇▇▇▇▇ ▇▇▇▇▇, dated the date of Closing from each of the Company
and the Selling Shareholder, certifying the accuracy of the representations and
warranties given pursuant to clause 10 of this Agreement as at Closing by
reference to the facts and circumstances then subsisting and the performance of
all of its obligations under this Agreement falling due for performance prior to
Closing.
2. A signed original letter agreement between HWL to ▇▇▇▇▇▇▇ Sachs (in the
agreed form) in respect of certain representations and warranties and
undertakings in respect of the Restructuring and the Global Offering.
3. Two signed original bring-down comfort letters addressed to the Hong
Kong Underwriters from the Reporting Accountants dated as of the date of Closing
in form and substance satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇ (acting reasonably).
4. Two signed originals of the legal opinion addressed to the Hong Kong
Underwriters and dated as of the date of Closing from each of:
(a) Linklaters, as Hong Kong counsel to the Company;
(b) Freshfields Bruckhaus ▇▇▇▇▇▇▇▇, as Hong Kong counsel to the Hong Kong
Underwriters;
(c) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, Cayman, as Cayman Islands counsel to the
Company;
(d) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, British Virgin Islands, as British Virgin
Islands counsel to the Selling Shareholder;
(e) P& A Law Offices, as Indian counsel to the Company;
(f) Gross, Kleinhendler, Hodak, Halevy, ▇▇▇▇▇▇▇▇▇ & Co., as Israeli counsel
to the Company; and
(g) ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Limited, as Thai counsel to the Company,
in each case concerning such matters as ▇▇▇▇▇▇▇ Sachs may reasonably require.
Page 47
SCHEDULE 3
SIGNIFICANT SUBSIDIARIES
▇▇▇▇▇▇▇▇▇ Global Communications Holdings Limited
▇▇▇▇▇▇▇▇▇ Global Communications Limited
▇▇▇▇▇▇▇▇▇ 3G HK Limited
▇▇▇▇▇▇▇▇▇ 3G Services (HK) Limited
▇▇▇▇▇▇▇▇▇ Telephone Company Limited
Partner Communications Company Ltd.
▇▇▇▇▇▇▇▇▇ ▇▇▇ Telecom Private Limited
▇▇▇▇▇▇▇▇▇ Telecom East Ltd.
Aircel Digilink India Limited
Fascel Limited
▇▇▇▇▇▇▇▇▇ Essar Telecom Limited
▇▇▇▇▇▇▇▇▇ Essar South Limited
▇▇▇▇▇▇▇▇▇ CAT Wireless Multimedia Limited
BFKT (Thailand) Limited
Page 48
SCHEDULE 4
REPRESENTATIONS AND WARRANTIES
For the purposes of this Schedule 4:
(a) any references in any Warranty to:
associated companies shall have the same meaning as when used in the
Company Accounts; and
subsidiaries shall have the same meaning as when used in the Company
Accounts;
(b) any references in any Warranty to either the International Underwriting
Agreement or the Deposit Agreement shall be deemed to be subject to the
proviso that such Warranty is only applicable to or in respect of such
agreement (and any actions contemplated thereunder) as and when it has
been entered into by the relevant parties thereto; and
(c) any Warranty concerning Significant Subsidiaries or Company
Restructuring Subsidiaries shall, with respect to Partner Communications
Company Ltd., be construed as modified by the qualifier "to the best
knowledge of the Company after due inquiry".
PART A
1. ACCURACY AND ADEQUACY OF INFORMATION
1.1 All material information supplied or disclosed in writing or orally and
used as the basis of information contained in the Hong Kong Offering Documents,
including without limitation, the Verification Notes and the answers and
documents referred to therein (and any new or additional information serving to
update or amend the Verification Notes supplied or disclosed in writing prior to
the date of this Agreement) by the Company or any other member of the Group or
their respective directors or employees, the Reporting Accountants, the Aircel
Reporting Accountants or the legal and other professional advisers to the Hong
Kong Underwriters for the purposes of the Hong Kong Public Offering is true and
accurate in all material respects and not misleading in any material respect and
all forecasts and estimates so supplied or disclosed have been made after due
and careful consideration, are based on assumptions referred to in the Hong Kong
Offering Documents (to the extent there are any) and represent reasonable and
fair expectations honestly held based on facts known to such persons (or any of
them).
1.2 All statements of material fact contained in the Hong Kong Offering
Documents and the Preferential Offering Documents are and will (at the
Prospectus Date and the other times when the Warranties are repeated pursuant to
this Agreement) be true and accurate in all material respects and not misleading
in any material respect (in light of the circumstances under which they are
made) and there
Page 49
are no facts known or which on reasonable enquiry could have been known to the
Company, any other member of the Group and/or the Directors of them which are
not disclosed in the Hong Kong Offering Documents and the Preferential Offering
Documents the omission of which would make any statement therein misleading in
any material respect or which in the circumstances of the Hong Kong Public
Offering are material for disclosure therein provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of a Hong Kong Underwriter expressly for use therein.
All expressions of opinion or intention therein are and will (at the Prospectus
Date and the other times when the Warranties are repeated pursuant to this
Agreement) be made on reasonable grounds and are and will be truly and honestly
held by the Directors and are and will be fairly based and there are and will be
no other facts known or which could on reasonable inquiry have been known to the
Directors the omission of which would make any such statement or expression
misleading in any material respect or which will or would likely be material in
the context of the Hong Kong Public Offering. The Hong Kong Offering Documents
and the Preferential Offering Documents conform to the requirements of the
Companies Ordinance and the Listing Rules so far as applicable.
1.3 All forecasts and estimates contained in the Hong Kong Offering
Documents and the Preferential Offering Documents are and will (at the
Prospectus Date and the other times when the Warranties are repeated pursuant to
this Agreement) be made after due and proper consideration, are and will be
based on assumptions referred to in the Hong Kong Offering Documents and the
Preferential Offering Documents in which such forecasts and estimates are
contained, and represent reasonable and fair expectations honestly held based on
facts known to the Company, any other member of the Group and/or the Directors
and there are and will be no other material assumptions on which such forecasts
or estimates are based other than the assumptions referred to in the Hong Kong
Offering Documents and the Preferential Offering Documents in which such
forecasts or estimates are contained or on which such forecasts or estimates
ought reasonably to have been based which have not been made. In particular (but
without limitation):
(a) the statements relating to working capital contained in the Hong Kong
Prospectus under the heading "Financial Information" represent the true
and honest belief of the Directors arrived at after due and careful
consideration and enquiry;
(b) the material statements relating to the dividend policy contained in the
Hong Kong Prospectus under the heading "Financial Information - Dividend
Policy" represent the true and honest belief of the Directors arrived at
after due and careful consideration and enquiry and there are currently
no material capital commitments of the Company which have not been
disclosed in the Hong Kong Prospectus;
(c) the statements contained in the Hong Kong Prospectus under the heading
"Future Plans and Prospects" represent the true and honest belief of the
Directors arrived at after due and careful consideration and enquiry;
(d) the statements contained in the Hong Kong Prospectus relating to the
Group's indebtedness as at close of business on 31 August 2004 are true
and accurate
Page 50
in all material respects and all material developments in relation to
the Company's indebtedness have been disclosed;
(e) the statements relating to the Group's liquidity and capital resources
contained in the Hong Kong Prospectus under the heading "Financial
Information" are true and accurate in all material respects;
(f) the interests of the Directors in the share capital of the Company and
in contracts with the Company and other members of the Group are fairly
and accurately disclosed in the Hong Kong Prospectus;
(g) the statements contained in the Hong Kong Prospectus under the headings
"Risk Factors" are accurate and represent the true and honest belief of
the Directors arrived at after due and careful consideration; and
(h) the statements set forth in the Hong Kong Prospectus under the heading
"Share Capital" and "Summary of the Constitution of the Company and
Cayman Islands Companies Laws", insofar as they purport to constitute a
summary of the terms of the Shares, and under the heading "Regulation",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are true and accurate in all material
respects.
1.4 All the interests of each of the Directors in the securities of the
Company or any associated corporation (within the meaning of the SFO) which will
be required to be notified to the Company and the Hong Kong Stock Exchange
pursuant to Part XV of the SFO, or which will be required pursuant to Part XV of
the SFO to be entered in the register referred to therein, or which will be
required to be notified to the Company and the Hong Kong Stock Exchange pursuant
to the Model Code for Securities Transactions by Directors of Listed Companies
in the Listing Rules, in each case once the Shares are listed, are fully and
accurately disclosed in the Hong Kong Prospectus.
1.5 All material contracts or documents to which any member of the Group is
a party which are required to be described in the Hong Kong Prospectus or filed
with the Hong Kong Prospectus with the Hong Kong Registrar of Companies will be
so described and filed.
1.6 No material information was withheld from the Reporting Accountants for
the purposes of their preparation of their reports contained in Appendix I to
the Hong Kong Prospectus and all information given to the Reporting Accountants
for such purposes was given in good faith and, to the best of the knowledge,
information and belief of the Directors after due and careful consideration, the
factual contents of such report are true and accurate in all material respects
and no material fact or matter has been omitted.
1.7 No material information was withheld from the Aircel Reporting
Accountants for the purposes of their preparation of their reports contained in
Appendix IV to the Hong Kong Prospectus and all information given to the Aircel
Reporting Accountants for such purposes was given in good faith and, to the best
of the knowledge, information and belief of the Directors after due and careful
consideration, the factual
Page 51
contents of such report are true and accurate in all material respects
and no material fact or matter has been omitted.
1.8 In respect of the connected transactions (as defined under the Listing
Rules) of the Group (the Connected Transactions):
(a) the statements of fact contained in the Hong Kong Prospectus relating to
the Connected Transactions are true and accurate in all material
respects and there are no other facts known the omission of which would
make any such statements misleading in any material respect, and there
are no other Connected Transactions which have not been disclosed in the
Hong Kong Prospectus which are or were required to be so disclosed;
(b) all information (including but not limited to historical figures) and
documentation provided by the Company to ▇▇▇▇▇▇▇ ▇▇▇▇▇ are true and
accurate and complete in all material respects and there is no other
information or document which have not been provided the result of which
would make the information and documents so received misleading in any
material respect;
(c) the transactions mentioned in the section "Connected Transactions -
Option Arrangements - Options exercisable at the discretion of third
parties", "Connected Transactions - Connected Transactions Exempt From
Independent Shareholders' Approval Requirements" and "Connected
Transactions - Connected Transactions Requiring Independent
Shareholders' Approval" in the Hong Kong Prospectus have been entered
into and will be carried out in the ordinary course of business, on
normal commercial terms and are fair and reasonable so far as the
shareholders of the Company are concerned and the Directors, including
the independent non-executive Directors, in coming to their view have
made, as they reasonably consider, due and careful inquiries and
investigations of such transactions;
(d) the Company has complied with and undertakes to continue to comply with
the terms of the Connected Transactions disclosed in the Hong Kong
Prospectus so long as the agreement relating thereto is in effect and
shall inform the Global Co-ordinator should there by any breach of any
such terms before the Listing Date; and
(e) each of the Connected Transactions as disclosed in the Hong Kong
Prospectus constitutes a legal, valid and binding agreement for the
relevant member of the Group.
2. HONG KONG PUBLIC OFFERING
2.1 All necessary authorities have been obtained from the holders of
existing issued Shares in the capital of the Company and others in Hong Kong,
Cayman Islands and the PRC to enable the Hong Kong Offer Shares to be offered
and sold to the applicants and/or placees therefor under the Hong Kong Public
Offering and the Company has or will at the relevant time have power under the
Articles of Association to register the transfers of the Hong Kong Offer Shares
pursuant to the Hong Kong Public Offering without any further sanction.
Page 52
2.2 Save as contemplated in the provisions of this Agreement and the
proposed granting of the Over-Allocation Option, neither the Company, the
Selling Shareholder nor any of their respective officers or Directors has taken,
or will take, directly or indirectly, any action designed to stabilize or
manipulate, in violation of applicable Laws, the price of the Hong Kong Offer
Shares or which has constituted or which would reasonably be expected to cause
or result in stabilization or manipulation, in violation of applicable Laws, of
the price of any of the Shares.
2.3 Save as disclosed in the Hong Kong Prospectus, all taxes, duties,
levies, fees or other charges or expenses which may be payable to any
Governmental Authority in Hong Kong in connection with the allocation, offer,
sale and purchase of the Hong Kong Offer Shares, the Hong Kong Public Offering,
the execution and delivery of, or the performance of this Agreement have been
paid.
3. PREFERENTIAL OFFERING DOCUMENTS
3.1 The electronic format Hong Kong Prospectus and specimen Preferential
Offering Application Form which are to be issued by the Company to Qualifying
HWL Shareholders on CD ROM in connection with the Preferential Offering are
identical with the contents of the Hong Kong Prospectus and the Preferential
Offering Application Form in printed form, respectively, which are to be
registered by the Registrar of Companies in Hong Kong on the date of this
Agreement and such CD ROM (and the contents thereof) complies with the
requirements of Listing Rule 12.11.
3.2 The publication and distribution of the electronic format Hong Kong
Prospectus and specimen Preferential Offering Application Form on CD ROM
(together with any covering letter from the Company) to Qualifying HWL
Shareholders is in compliance with all applicable laws and regulations and the
Articles of Association.
4. GENERAL WARRANTIES
4.1 The Hong Kong Public Offering Documents contain all information required
by the applicable requirements of the Companies Ordinance, the SFO, the Listing
Rules (together with other rules and regulations of the Hong Kong Stock
Exchange) and the Company Law (2003 Revision) of the Cayman Islands.
4.2 Neither the Company nor any of its subsidiaries or associated companies
has sustained since the date of the latest audited financial statements included
in the Hong Kong Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labour dispute or court or governmental action, order or decree,
which would, individually or in the aggregate, have a material adverse effect on
the business, prospects, operations, condition (financial or otherwise),
shareholders' equity or results of operations of the Company or any of its
subsidiaries or associated companies, taken as a whole (a Material Adverse
Effect), otherwise than as set forth or contemplated in the Hong Kong
Prospectus; and, since the respective dates as of which information is given in
the Hong Kong Prospectus, there has not been any change in the capital stock,
short-term debt or long-term debt of the Company or any of its subsidiaries or
associated companies or any change, or any development involving a prospective
change, which
Page 53
would, individually or in the aggregate, have a Material Adverse Effect,
otherwise than as set forth or contemplated in the Hong Kong Prospectus.
4.3 Except as set forth in the Hong Kong Prospectus, each of the Company and
its Significant Subsidiaries owns, leases or licences all such property as is
necessary to the conduct of its operations as presently conducted, and to the
Company's best knowledge, there are no liens, encumbrances or defects upon or in
any such real or personal property except such as are described in the Hong Kong
Prospectus or such as do not, individually or in the aggregate, have a Material
Adverse Effect; and any real property and buildings held under lease or licence
by the Company and the Significant Subsidiaries are held by them under valid,
subsisting and enforceable leases or licences with such exceptions which would
not, individually or in the aggregate, have a Material Adverse Effect.
4.4 The Company has been duly incorporated and is validly existing as a
company with limited liability in good standing under the laws of the Cayman
Islands, with power and authority (corporate and other) to own its properties
and conduct its business as described in the Hong Kong Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
or is subject to no material liability or disability by reason of the failure to
be so qualified in any such jurisdiction; and each Significant Subsidiary has
been duly incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation.
4.5 The Articles of Association comply with the requirements of the Listing
Rules and have been validly approved by the Company in accordance with the
requirements of the laws and regulations of the Cayman Islands.
4.6 The Company has an authorized capitalization as set forth in the Hong
Kong Prospectus, and all of the issued shares of the Company have been duly and
validly authorized and issued, are fully (or credited as fully) paid and non
assessable and conform to the description contained in the Hong Kong Prospectus;
and all of the issued shares of each Significant Subsidiary have been duly and
validly authorized and issued, are fully paid and non assessable and (except for
directors' qualifying shares and except as set forth in the Hong Kong
Prospectus) are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims; the holders of outstanding shares
of the Company or any of the Significant Subsidiaries are not entitled to
pre-emptive or other rights to acquire the Shares; there are no outstanding
securities convertible into or exchangeable for, or warrants, rights or options
to purchase from the Company, or obligations of the Company to issue, the Shares
or any other class of security of the Company; the Shares are freely
transferable by the Selling Shareholder to or for the account of the Hong Kong
Underwriters and (to the extent described in the Hong Kong Prospectus) the
applicants therefor; and there are no restrictions on subsequent transfers of
the Shares under the laws of Hong Kong and the Cayman Islands except as
described in the Hong Kong Prospectus under "Share Capital" and in Appendix VIII
("Summary of the Constitution of the Company and Cayman Islands Companies
Laws").
4.7 The Shares have been duly and validly authorized and are duly and
validly issued and fully (or credited as fully) paid and non-assessable and
conform in all
Page 54
material respects to the description of the Shares contained in the Hong Kong
Prospectus.
4.8 Each of this Agreement, the Principal Registrar's Agreement, the Branch
Registrar's Agreement, the Receiving Bankers' Agreement, the Deposit Agreement
and the International Underwriting Agreement has been or will be duly
authorized, executed, and delivered by the Company and constitutes (or will when
executed constitute) a valid and legally binding agreement of the Company,
enforceable in accordance with its terms, subject, as to enforceability, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
4.9 No Governmental Authorization of any Governmental Authority having
jurisdiction over the Company or any of the Significant Subsidiaries or any of
their properties is required for the performance by the Company of its
obligations under this Agreement, the International Underwriting Agreement, the
Deposit Agreement, the Receiving Bankers' Agreement, the Principal Registrar's
Agreement or the Branch Registrar's Agreement.
4.10 All dividends and other distributions declared and payable on the shares
of the Company may under the current laws and regulations of the Cayman Islands
be paid to the registered holders thereof including the Depositary, and all such
dividends and other distributions will not be subject to withholding or other
taxes under the laws and regulations of the Cayman Islands and are otherwise
free and clear of any other tax, withholding or deduction in the Cayman Islands
and without the necessity of obtaining any Governmental Authorization in the
Cayman Islands.
4.11 The deposit of the Shares being deposited with the Depositary against
issuance of the ADRs evidencing the ADSs and the compliance by the Company with
all of the provisions of this Agreement, the International Underwriting
Agreement and the Deposit Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
(A) any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of the Significant Subsidiaries is a
party or by which the Company or any of the Significant Subsidiaries is bound or
to which any of the property or assets of the Company or any of the Significant
Subsidiaries is subject, (B) the respective constituent documents of the Company
and the Significant Subsidiaries or (C) any statute or any order, rule or
regulation of any Governmental Authority having jurisdiction over the Company or
any of the Significant Subsidiaries or any of their respective properties.
4.12 Neither the Company nor any of the Significant Subsidiaries is in
violation of its respective constituent documents; and neither the Company nor
any of its subsidiaries or associated companies is:
(a) in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be
bound; or
Page 55
(b) in violation or contravention of any law or statute or any order, rule
or regulation of any Governmental Authority having jurisdiction over the
Company, any of its subsidiaries or associated companies or any of their
respective properties,
except, with respect to (a) and (b) above, any such default, violation or
contravention which would not, individually or in the aggregate, have a Material
Adverse Effect.
4.13 Other than as set forth in the Hong Kong Prospectus, no stamp or other
issuance or transfer taxes or duties and no capital gains, income, withholding
or other taxes are payable in Hong Kong, the Cayman Islands or any political
subdivision or taxing authority thereof or therein by or on behalf of the Hong
Kong Underwriters or any applicants procured by the Hong Kong Underwriters,
other than on the income, profits or gains of any Hong Kong Underwriters where
such Hong Kong Underwriters are otherwise subject to income taxation on a net
basis in such jurisdiction in connection with:
(a) the sale and delivery by the Selling Shareholder of the Shares to or for
the respective accounts of the Underwriters or purchasers procured by
the Underwriters in the manner contemplated herein;
(b) the sale and delivery by the Selling Shareholder of the Shares to the
initial purchasers thereof in the manner contemplated herein; or
(c) the execution, delivery and performance of this Agreement.
4.14 Other than as set forth in the Hong Kong Prospectus, there are no (or,
in the case of Israel, to the best knowledge of the Company after due enquiry
there are no) legal or governmental proceedings pending and, to the best
knowledge of the Company after due inquiry, no such proceedings are threatened
or contemplated by any Governmental Authority or threatened by others to which
the Company or any of its subsidiaries or associated companies is a party or of
which any property of the Company or any of its subsidiaries or associated
companies is the subject which, if determined adversely to the Company or any of
its subsidiaries or associated companies, would individually or in the aggregate
have a Material Adverse Effect.
4.15 (A) Except as set forth in the Hong Kong Prospectus, the Company and
each of its subsidiaries and associated companies have all licenses, consents,
franchises, permits, authorizations, approvals, certificates and orders and
other concessions of and from all Governmental Authorities that are necessary to
own, lease, license and use their respective properties and conduct their
respective businesses in the manner as set forth in the Hong Kong Prospectus;
(B) neither the Company nor any Significant Subsidiary has received, nor does
the Company have any reason to believe that it or any Significant Subsidiary
will receive, any notice relating to any actual or proposed modification,
suspension or revocation of any such licenses, consents, franchises, permits,
authorizations, approvals, certificates, orders or concessions; and (C) the
Company and its subsidiaries and associated companies are in compliance with the
provisions of all such licenses, consents, franchises, permits, authorizations,
approvals, orders and concessions, except, with respect to (A), (B) and (C),
where the failure to have or maintain such licenses, consents, franchises,
permits, authorizations,
Page 56
approvals, certificates, orders or concessions or to comply with the provisions
thereof would not, individually or in the aggregate, have a Material Adverse
Effect.
4.16 The Reporting Accountants, who have certified certain financial
statements of the Company and its subsidiaries, are, to the best knowledge of
the Company after due inquiry, independent accountants as required by the
Listing Rules and the Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (A) transactions are executed in
accordance with management's general or specific authorizations; (B) access to
assets is permitted only in accordance with management's general or specific
authorization; (C) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate actions taken with
respect to any differences; and (D) the Company has made and kept books, records
and accounts, in reasonable detail, which accurately and fairly reflect the
transactions and dispositions of assets of such entity and provide a sufficient
basis for the preparation of financial statements in conformity with generally
accepted accounting principles in Hong Kong (Hong Kong GAAP) as well as the
reconciliation of such financial statements in accordance with generally
accepted accounting principles in the United States (US GAAP).
4.17 The International Offering Documents (as and when executed or issued)
and (where relevant) the filing of such International Offering Documents with
the SEC or (in the case of the Japanese Registration Statement, with the KLFB)
have each been duly authorized by and on behalf of the Company, and the relevant
International Offering Documents have each been duly executed pursuant to such
authorization by and on behalf of the Company.
4.18 Each of the Company and its subsidiaries and associated companies owns
or has had licensed to it or otherwise has the benefit of use under the
authority of the owners or licensees thereof of all patents, patent licenses,
inventions, copyrights, trademarks, service marks, trade names, domain names,
technology and know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
information, proprietary rights and processes or other confidential information
(Intellectual Property) that are necessary to conduct its business as currently
conducted, except where the failure to so own or have the right to use or
acquire would not, individually or in the aggregate, have a Material Adverse
Effect; and except as set forth in the Hong Kong Prospectus, (A) none of the
Intellectual Property owned or, to the best knowledge of the Company having made
due enquiry, licensed by the Company or any of its subsidiaries and associated
companies is unenforceable or invalid; (B) neither the Company nor any of its
subsidiaries or associated companies has received any notice of violation or
conflict with rights of others with respect to the Intellectual Property; (C)
there are no pending or threatened actions, suits, proceedings or claims by
others that allege the Company or any of its subsidiaries or associated
companies is infringing any patent, trade secret, trademark, service ▇▇▇▇,
copyright or other intellectual property or proprietary right; (D) the
discoveries, inventions, products or processes of the Company and its
subsidiaries and associated companies do not, to the Company's best knowledge
after due inquiry, violate or conflict with any intellectual property or
proprietary right of any third person; and (E) the Company and its subsidiaries
and associated companies are not in breach of any license or other agreement
relating to the Intellectual Property, in the case of any of (A) through (E)
which would, or in the case of (C), if determined adversely to the Company or
any of its subsidiaries or
Page 57
associated companies would, individually or in the aggregate have a Material
Adverse Effect.
4.19 Other than as set forth in the Hong Kong Prospectus, no labour dispute,
work stoppage, slow down or other conflict with the employees of the Company or
any of its subsidiaries or associated companies exists or, to the best knowledge
of the Company after due inquiry, is threatened which would individually or in
the aggregate have a Material Adverse Effect.
4.20 Each of this Agreement, the International Underwriting Agreement and the
Deposit Agreement is or will be in proper form to be enforceable against the
Company in the Cayman Islands or Hong Kong, as the case may be, in accordance
with its terms; and to ensure the legality, validity, enforceability or
admissibility into evidence in the Cayman Islands or Hong Kong of this
Agreement, the International Underwriting Agreement or the Deposit Agreement, as
the case may be, it is not necessary that this Agreement, the International
Underwriting Agreement or the Deposit Agreement, as the case may be, be filed or
recorded with any court or other authority in the Cayman Islands, Hong Kong or
Japan or that any stamp or similar tax in the Cayman Islands or Hong Kong be
paid on or in respect of this Agreement, the International Underwriting
Agreement, the Deposit Agreement or any other documents to be furnished
hereunder.
4.21 No holder of any of the Shares after the consummation of the
transactions contemplated by this Agreement is or will be subject to any
liability in respect of any liability of the Company by virtue only of its
holding of any such Shares; except as set forth in the Hong Kong Prospectus,
there are no limitations on the rights of holders of the Shares to hold, vote or
transfer their securities.
4.22 Except as disclosed in the Hong Kong Prospectus, since30 June 2004,
neither the Company nor any of the Significant Subsidiaries has (A) entered into
or assumed any material contract, (B) incurred or agreed to incur any material
liability (including contingent liability) or other obligation, (C) acquired or
disposed of or agreed to acquire or dispose of any business or asset material to
the Company or any of the Significant Subsidiaries, or (D) assumed or acquired
or agreed to assume or acquire any material liabilities (including contingent
liabilities).
4.23 The Company Accounts present a true and fair view of the financial
position of the Group as of the dates specified and the results of operations
and changes in financial position of the Group for the periods specified, and
such financial statements have been prepared in conformity with Hong Kong GAAP
applied on a consistent basis throughout the periods presented (other than as
described therein); and the summary and selected financial data included in the
Hong Kong Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the Company Accounts.
4.24 The unaudited pro forma financial information included in Appendix VI to
the Hong Kong Prospectus has been duly and carefully prepared in accordance with
Listing Rule 4.29 and on the bases set out in the Hong Kong Prospectus, is
presented therein on a basis consistent with the accounting policies normally
applied by the Company and is not misleading; all assumptions on which such
information is based are set out therein and are reasonable and, so far as the
Company is aware, there are
Page 58
no other material assumptions or sensitivities which should reasonably be taken
into account in the preparation of such information; and such pro forma
financial information takes into account (to the extent relevant) all matters of
which the Company is aware concerning the Company or the markets in which it
carries on business and has been compiled after due and careful enquiry.
4.25 All returns, reports or filings which ought to have been made by or in
respect of each of the Company and its subsidiaries and, to the best knowledge
of the Company after due inquiry, each of the Company's associated companies for
taxation purposes have been made, and are not the subject of any dispute with
the relevant revenue or other appropriate authorities that is not being
contested in good faith; the provisions included in the audited accounts as set
out in the Hong Kong Prospectus included appropriate provisions required under
Hong Kong GAAP for all taxation in respect of accounting periods ended on or
before the accounting reference date to which such audited accounts relate for
which the Company was then or might reasonably be expected thereafter to become
or have become liable; and neither the Company nor any of its subsidiaries nor,
to the best knowledge of the Company after due inquiry, any of its associated
companies has received notice of any tax deficiency that has been asserted by
the relevant regulatory authorities and is not being contested in good faith,
except, in each case, any failure to so file or provide or any such deficiency
that would not have a Material Adverse Effect.
4.26 The descriptions of the Restructuring in the Hong Kong Prospectus are
true and correct in all material respects.
4.27 Each of the significant documents or agreements executed in connection
with the Restructuring (collectively the Restructuring Documents) by any of the
Company, its subsidiaries or associated companies (collectively, the Company
Restructuring Subsidiaries) has been duly authorized, executed and delivered by
that party and constitutes a valid and legally binding agreement of that party,
enforceable in accordance with its terms, subject, as to enforceability, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
4.28 The Restructuring and the execution, delivery and performance of the
Restructuring Documents do not:
(a) contravene any provision of applicable law or statute, rule or
regulation of any Governmental Authority having jurisdiction over the
Company, any of the Significant Subsidiaries or any of the Company
Restructuring Subsidiaries or any of their respective properties;
(b) contravene the respective constituent documents or business licenses of
the Company, any of the Significant Subsidiaries or any of the Company
Restructuring Subsidiaries; or
(c) conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any license, indenture,
mortgage, deed of trust, loan agreement, note, lease or other agreement
or instrument to which the Company, is a party or by which the Company,
any of the Significant Subsidiaries or any of the Company Restructuring
Subsidiaries is bound or to
Page 59
which any of the property or assets of the Company, any of the
Significant Subsidiaries or any of the Company Restructuring
Subsidiaries is subject, and will not result in the creation or
imposition of any lien, charge, encumbrance or other restriction upon
any material assets of the Company, any of the Significant Subsidiaries
or any of the Company Restructuring Subsidiaries,
except, with respect to (a) or (c), any such contravention, conflict, breach,
violation, default or restriction which would not, individually or in the
aggregate, have (i) a Material Adverse Effect or (ii) a material adverse effect
on the Company's ability to perform its obligations under this Agreement, the
International Underwriting Agreement or the Deposit Agreement.
4.29 Except as disclosed in the Hong Kong Prospectus, all consents,
approvals, authorizations, orders, registrations and qualifications required in
connection with the Restructuring and the execution, delivery and performance of
the Restructuring Documents have been made or unconditionally obtained in
writing, and no such consent, approval, authorization, order, registration or
qualification has been withdrawn or is subject to any condition precedent which
has not been fulfilled or performed.
4.30 There are no (or, in the case of Israel, to the best knowledge of the
Company after due enquiry there are no) legal or governmental proceedings that
challenge the effectiveness or validity of the events and transactions set forth
in the Hong Kong Prospectus under the caption "The Restructuring" and, to the
Company's best knowledge without having made any specific inquiry of any
Governmental Authority, no such proceedings are threatened or contemplated by
any Governmental Authorities.
4.31 Except as set forth in the Hong Kong Prospectus, the Company is not
engaged in any material transactions with its directors, officers, management,
shareholders, or any other person, including persons formerly holding such
positions, on terms that are not available to other parties on an arm's length
basis.
4.32 Except as disclosed in the Hong Kong Prospectus, there are no contracts,
agreements or understandings between the Company (or any other member of the
Group) and any person or entity that would give rise to any claim against the
Group or any of the Underwriters for brokerage commissions, finder's fees or
other payments in connection with the offer and sale of Shares.
4.33 There are no debt securities of the Company outstanding as of the date
of this Agreement.
4.34 The Company and each of its Significant Subsidiaries is validly insured
against such losses and risks in such amounts as are prudent and customary in
the businesses in which it is engaged and as may be required by law; the Company
and each of its Significant Subsidiaries has duly paid in full all premiums due
in respect of such policies and instruments; there are no claims by the Company
or any of its Significant Subsidiaries under any such policy or instrument as to
which any insurance company is denying any liability with respect thereto or is
defending under a reservations of rights clause that, if determined adversely to
the Company or any Significant Subsidiary, would have a Material Adverse Effect.
Page 60
PART B
1.1 The Selling Shareholder has been duly organized and is validly existing
as a company in good standing in the British Virgin Islands.
1.2 All Governmental Authorizations required for the sale and delivery of
the Shares to be sold by the Selling Shareholder hereunder and under the
International Underwriting Agreement and for the execution and delivery by the
Selling Shareholder of this Agreement and the International Underwriting
Agreement, have been obtained and are in full force and effect.
1.3 The sale of the Shares to be sold by the Selling Shareholder hereunder
and under the International Underwriting Agreement, the deposit of the Shares
with the Depositary against issuance of the ADRs evidencing the ADSs to be
delivered at the relevant time of delivery as is to be set out in the
International Underwriting Agreement, the compliance by the Selling Shareholder
with all of the provisions of this Agreement and the International Underwriting
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, (A) any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Selling Shareholder is a party or by which the Selling Shareholder is
bound, or to which any of the property or assets of the Selling Shareholder is
subject (B) the constituent documents of the Selling Shareholder or (C) any
statute or any order, rule or regulation of any Governmental Authority having
jurisdiction over the Selling Shareholder or its properties or assets.
1.4 The Selling Shareholder has good and valid title to the Shares to be
sold hereunder and under the International Underwriting Agreement, free and
clear of all liens, encumbrances, equities or claims; and upon delivery of the
Shares to be sold hereunder and under the International Underwriting Agreement
and payment therefor pursuant to this Agreement and the International
Underwriting Agreement, good and valid title to such Shares, free and clear of
all liens, encumbrances, equities or claims, will pass to the Hong Kong
Underwriters and/or the International Underwriters and/or the initial
applicants/purchasers, as the case may be.
1.5 Each of this Agreement and the International Underwriting Agreement has
been or will be duly authorized, executed and delivered by the Selling
Shareholder and constitutes (or will when executed constitute) a valid and
legally binding agreement of the Selling Shareholder, enforceable in accordance
with its terms, subject, as to enforceability, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles, and is in proper form to be enforceable against the Selling
Shareholder in accordance with its terms; and to ensure the legality, validity,
enforceability or admissibility into evidence in the British Virgin Islands or
Hong Kong, as the case may be, of this Agreement or the International
Underwriting Agreement, as the case may be, it is not necessary that this
Agreement or the International Underwriting Agreement, as the case may be, be
filed or recorded with any court or other authority in the British Virgin
Islands or Hong Kong, as the case may be, or that any stamp or similar tax in
the British Virgin
Page 61
Islands or Hong Kong, as the case may be, be paid on or in respect of this
Agreement, the International Underwriting Agreement or any other documents to be
furnished hereunder.
1.6 There are no contracts, agreements or understandings between the Selling
Shareholder and any person that would give rise to a valid claim against the
Selling Shareholder or any Hong Kong Underwriter for a brokerage commission,
finder's fee or other like payment in connection with the offer and sale of the
Shares.
1.7 Each Restructuring Document executed by the Selling Shareholder has been
duly authorized, executed and delivered by or on behalf of the Selling
Shareholder and constitutes a valid and legally binding agreement of the Selling
Shareholder, enforceable in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
1.8 The Restructuring and the execution, delivery and performance of the
Restructuring Documents do not (A) contravene any provision of applicable law or
statute, rule or regulation of any Governmental Authority having jurisdiction
over the Selling Shareholder or any of its properties, (B) contravene the
respective constituent documents or business licenses of the Selling Shareholder
or (C) conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any license, indenture, mortgage,
deed of trust, loan agreement, note, lease or other agreement or instrument to
which the Selling Shareholder is a party or by which the Selling Shareholder is
bound or to which any of the property or assets of the Selling Shareholder is
subject, and will not result in the creation or imposition of any lien, charge,
encumbrance or other restriction upon any material assets of the Selling
Shareholder, except, with respect to (A) or (C), any such contravention,
conflict, breach, violation, default or restriction which would not,
individually or in the aggregate, have (i) a Material Adverse Effect or (ii) a
material adverse effect on the Selling Shareholder's ability to perform its
obligations under this Agreement.
Page 62
SCHEDULE 5
FORM OF PRICE DETERMINATION AGREEMENT
[On the letterhead of ▇▇▇▇▇▇▇ Sachs]
[.] October 2004
▇▇▇▇▇▇▇▇▇ Telecommunications Investment Holdings Limited
18/F, Two Harbourfront
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Dear Sirs
HONG KONG PUBLIC OFFERING: PRICE DETERMINATION AGREEMENT
We refer to the Hong Kong offer underwriting agreement dated 27 September 2004
entered into between ▇▇▇▇▇▇▇▇▇ Telecommunications International Limited,
▇▇▇▇▇▇▇▇▇ Telecommunications Investment Holdings Limited, ourselves and the
other Hong Kong Underwriters named therein in respect of the public offer of
initially 115,500,000 shares (subject to adjustment) of par value HK$0.25 each
(the Shares) in the Company (the Hong Kong Underwriting Agreement).
Terms defined in the Hong Kong Underwriting Agreement shall have the same
meanings when used in this letter.
This letter is written in our capacity as global coordinator and sole bookrunner
of the Global Offering and on behalf of the other Hong Kong Underwriters under
the Hong Kong Underwriting Agreement.
Based on the book-building exercise and the level of market demand for the
International Offering and following our discussions, pursuant to clause 3.6 of
the Hong Kong Underwriting Agreement, the Offer Price (before Brokerage at the
rate of 1 per cent., SFC Transaction Levy at the rate of 0.005 per cent.,
Investor Compensation Levy at the rate of 0.002 per cent. and Trading Fee at the
rate of 0.005 per cent.) has been determined as HK$[.].
This letter agreement shall be governed by and construed in accordance with the
laws of the Hong Kong Special Administrative Region of the People's Republic of
China.
Please sign below to confirm your agreement with the terms recorded herein.
Page 63
Yours faithfully
For and on behalf of
▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) L.L.C.
---------------------------
[Name]
[Title]
We hereby agree to the terms of the above letter.
For and on behalf of
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS INVESTMENT HOLDINGS LIMITED
--------------------------
[Name]
[Title]
Page 64
SCHEDULE 6
HONG KONG UNDERWRITERS' SET OFF ARRANGEMENTS
1. This Schedule sets out the arrangements and terms pursuant to which the
obligations of each Hong Kong Underwriter under clause 6.1 of this Agreement
will be reduced to the extent that it makes (or procures to be made) one or more
Valid Applications which is or are accepted (hereafter referred to as
Underwriters' Applications). These arrangements mean that in no circumstances
will any Hong Kong Underwriter have any further liability as a Hong Kong
Underwriter if one or more Underwriters' Applications, duly made by it or
procured by it to be made, are validly made and accepted for not less than the
number of the Hong Kong Offer Shares noted against its name in Schedule 1, save
as provided in the Agreement Among Hong Kong Underwriters.
2. In order to qualify as Underwriters' Applications, such applications
must be made on one or more Hong Kong Application Forms and delivered, together
with a cheque or cheques or banker's cashier order or orders for the amounts
payable on application (including Brokerage, Trading Fee, SFC Transaction Levy
and Investor Compensation Levy), to ▇▇▇▇▇▇▇ ▇▇▇▇▇ by not later than 10:00 a.m.
on the Acceptance Date. Each such application must bear the stamp of the Hong
Kong Underwriter or the Hong Kong Underwriter's broker or nominee by whom or on
whose behalf the application is made or, if made by the Hong Kong Underwriter's
sub-underwriter, marked to identify the relevant Hong Kong Underwriter and there
must be clearly marked on the Hong Kong Application Form(s) "▇▇▇▇▇▇▇▇▇
Telecommunications - Underwriter's Application". These applications will
subsequently be notified and delivered by ▇▇▇▇▇▇▇ ▇▇▇▇▇ to any of the Receiving
Bankers by 12:00 noon on the Acceptance Date.
3. If all of the Hong Kong Offer Shares shall not have been validly both
applied and paid for in the manner referred to in this Agreement, each Hong Kong
Underwriter will, subject to the provisions of this Agreement, be obliged to
take up the proportion of the shortfall that (a) its net underwriting
participation (that is its underwriting participation pursuant to clause 6.1
less the aggregate number of Hong Kong Offer Shares for which Underwriters'
Applications have been made by it or procured to be made by it to the extent
that they have been accepted and up to the limit of its underwriting
participation), bears to (b) the aggregate of the underwriting participation of
all the Hong Kong Underwriters including itself less the aggregate number of
Hong Kong Offer Shares for which Underwriters' Applications have been made
(including by itself). This paragraph 3 is subject to the Agreement Among Hong
Kong Underwriters.
4. The obligations of Hong Kong Underwriters determined pursuant to
paragraph 3 above may be rounded, as determined by ▇▇▇▇▇▇▇ Sachs in its sole
discretion, to avoid fractions. The determination of ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be
final and conclusive and without recourse.
5. No preferential consideration will be given in respect of Underwriters'
Applications.
Page 65
SCHEDULE 7
ADVERTISING ARRANGEMENTS
DATES NEWSPAPERS
Thursday, 30 September The South China Morning Post (in English)
Hong Kong Economic Journal (in Chinese)
Hong Kong Economic Times (in Chinese)
Oriental Daily (in Chinese)
Monday, 4 October The South China Morning Post (in English)
Hong Kong Economic Journal (in Chinese)
Hong Kong Economic Times (in Chinese)
Oriental Daily (in Chinese)
▇▇▇▇ ▇▇▇ (in Chinese)
Sing Tao Daily (in Chinese)
Tuesday, 5 October The Standard (in English)
Hong Kong Economic Times (in Chinese)
Oriental Daily (in Chinese)
▇▇▇ ▇▇▇ Po (in Chinese)
Wednesday, 6 October The South China Morning Post (in English)
Hong Kong Economic Journal (in Chinese)
Hong Kong Economic Times (in Chinese)
▇▇▇▇ ▇▇▇ (in Chinese)
Sing Tao Daily (in Chinese)
Page 66
THE COMPANY
SIGNED by )
for and on behalf of )
▇▇▇▇▇▇▇▇▇ )
TELECOMMUNICATIONS )
INTERNATIONAL LIMITED ) /s/ ▇▇▇▇▇ ▇▇▇▇
in the presence of: )
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇, Linklaters
THE SELLING SHAREHOLDER
SIGNED by )
for and on behalf of )
▇▇▇▇▇▇▇▇▇ )
TELECOMMUNICATIONS )
INVESTMENT HOLDINGS LIMITED ) /s/ ▇▇▇▇▇ ▇▇▇▇
in the presence of: )
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇, Linklaters
THE GLOBAL COORDINATOR AND SOLE SPONSOR
SIGNED by )
for and on behalf of )
▇▇▇▇▇▇▇ ▇▇▇▇▇ (ASIA) L.L.C. ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
in the presence of: )
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Freshfields Bruckhaus ▇▇▇▇▇▇▇▇
Page 67
THE HONG KONG UNDERWRITERS
SIGNED by )
for and on behalf of )
▇▇▇▇▇▇▇ ▇▇▇▇▇ (ASIA) L.L.C. ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
in the presence of: )
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Freshfields Bruckhaus ▇▇▇▇▇▇▇▇
SIGNED by )
for and on behalf of )
▇▇▇▇▇▇▇ ▇▇▇▇▇ (ASIA) L.L.C. )
as duly authorised attorney for )
ABN AMRO BANK N.V. HONG KONG )
BRANCH and NM ROTHSCHILD )
& SONS (HONG KONG) LIMITED )
(each trading as ABN AMRO )
ROTHSCHILD), ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
BNP PARIBAS PEREGRINE CAPITAL )
LIMITED, )
CELESTIAL CAPITAL LIMITED, )
CORE PACIFIC - YAMAICHI )
INTERNATIONAL (H.K.) )
LIMITED, )
▇▇▇ ▇▇▇▇ SECURITIES LIMITED, )
DBS ASIA CAPITAL LIMITED, )
FIRST SHANGHAI SECURITIES )
LIMITED, )
GUOTAI JUNAN SECURITIES )
(HONG KONG) LIMITED, )
THE HONGKONG AND SHANGHAI )
BANKING CORPORATION )
LIMITED, )
KGI CAPITAL ASIA LIMITED, )
▇▇▇ ENG SECURITIES (HONG )
KONG) LIMITED, )
SBI E2-CAPITAL SECURITIES )
LIMITED, )
SOUTH CHINA SECURITIES )
LIMITED, )
SUN HUNG KAI INTERNATIONAL )
LIMITED and )
TAI FOOK SECURITIES COMPANY )
LIMITED )
in the presence of: )
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Freshfields Bruckhaus ▇▇▇▇▇▇▇▇
Page 68
CONTENTS
CLAUSE PAGE
1. INTERPRETATION...........................................................2
2. CONDITIONS..............................................................11
3. THE HONG KONG PUBLIC OFFERING...........................................12
4. THE HONG KONG OFFERING DOCUMENTS AND THE PREFERENTIAL
OFFERING DOCUMENTS........................ ............................17
5. ALLOCATION OF HONG KONG OFFER SHARES....................................18
6. UNDERWRITING............................................................19
7. PAYMENT UNDER THE HONG KONG PUBLIC OFFERING.............................21
8. COMMISSION AND EXPENSES.................................................22
9. STABILIZATION AND LIABILITY.............................................23
10. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS............................24
11. FURTHER UNDERTAKINGS....................................................26
12. TERMINATION.............................................................30
13. INDEMNITY...............................................................32
14. REMEDIES, WAIVERS AND RELEASE...........................................35
15. ASSIGNMENT..............................................................36
16. FURTHER ASSURANCE.......................................................36
17. ENTIRE AGREEMENT........................................................36
18. AMENDMENT OR VARIATION..................................................36
19. NOTICES.................................................................37
20. ANNOUNCEMENTS...........................................................38
21. TIME OF ESSENCE.........................................................38
22. INVALIDITY..............................................................39
23. GOVERNING LAW...........................................................39
24. DISPUTE RESOLUTION......................................................39
25. IMMUNITY................................................................40
26. CURRENCY INDEMNITY......................................................40
27. COUNTERPARTS............................................................41
SCHEDULE 1 HONG KONG UNDERWRITERS............................................42
SCHEDULE 2 THE CONDITIONS PRECEDENT DOCUMENTS................................44
Page 69
PART A : TO BE DELIVERED TO ▇▇▇▇▇▇▇ ▇▇▇▇▇ NOT LATER THAN 5:00
P.M. ON THE BUSINESS DAY PRIOR TO THE PROSPECTUS DATE .................44
1. Legal Documents.................................................44
2. Documents relating to the Hong Kong Public Offering.............45
3. PRC Legal Opinions..............................................46
4. Other Documents.................................................46
PART B : TO BE DELIVERED TO ▇▇▇▇▇▇▇ SACHS NOT LATER THAN 5:00
P.M. ON THE BUSINESS DAY PRIOR TO CLOSING .............................47
SCHEDULE 3 SIGNIFICANT SUBSIDIARIES..........................................48
SCHEDULE 4 REPRESENTATIONS AND WARRANTIES....................................49
PART A ..................................................................49
1. Accuracy and Adequacy of Information............................49
2. Hong Kong Public Offering.......................................52
3. Preferential Offering Documents.................................53
4. General Warranties..............................................53
PART B ..................................................................61
SCHEDULE 5 FORM OF PRICE DETERMINATION AGREEMENT.............................63
SCHEDULE 6 HONG KONG UNDERWRITERS' SET OFF ARRANGEMENTS......................65
SCHEDULE 7 ADVERTISING ARRANGEMENTS..........................................66
The Company..............................................................67
The Selling Shareholder..................................................67
The Global Coordinator and Sole Sponsor..................................67
The Hong Kong Underwriters...............................................68
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