Exhibit 4(ss)
Dated: 19 January 2005 EXECUTION COPY
Subscription Agreement
between
PCCW Limited
as Company
China Netcom Group Corporation (BVI) Limited
as Subscriber
and
China Network Communications Group Corporation
(GRAPHIC OMITTED)
as China Netcom
relating to
shares in the capital of PCCW Limited
Simmons&Simmons
35th Floor Xxxxxx Kong Center 0 Xxxxx'x Xxxx Xxxxxxx Xxxx Xxxx
T (000) 0000 0000 F (000) 0000 0000 DX 009121 Central 1
CONTENTS
1. Definitions and Interpretation .............................................1
2. Agreement to Subscribe .....................................................4
3. Conditions of the Subscription .............................................5
4. Completion of the Subscription .............................................6
5. Representations, Warranties and Undertakings of the Company ................9
6. Representations, Warranties and Undertakings of the Subscriber
and China Netcom ..........................................................11
7. The Group's operations in the PRC .........................................15
8. Certain Company Undertakings ..............................................16
9. Guarantee .................................................................25
10. No "acting in concert" ...................................................26
11. Confidentiality ..........................................................26
12. Announcements ............................................................27
13. Notices ..................................................................28
14. Waiver of Immunity .......................................................29
15. Law and Arbitration ......................................................30
16. Contracts (Rights of Third Parties) Xxx 0000 .............................30
17. Provisions Relating to this Agreement ....................................30
SCHEDULE 1 : THE COMPANY WARRANTIES ..........................................33
SCHEDULE 2 : LIMITATIONS ON THE COMPANY'S LIABILITY ..........................36
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THIS AGREEMENT is dated 19 January 2005 and made
BETWEEN:
(1) PCCW LIMITED, (the "Company"), a company incorporated in Hong Kong with
limited liability and whose registered office is at 00xx Xxxxx, XXXX Xxxxx,
XxxXxx Xxxxx, 000 Xxxx'x Xxxx, Xxxxxx Xxx, Xxxx Xxxx;
(2) CHINA NETCOM GROUP CORPORATION (BVI) LIMITED, (the "Subscriber"), a company
incorporated in the British Virgin Islands and whose registered office is
at P.O. Box 3140, Wickhams Cay 1, Road Town, Tortola, British Virgin
Islands (Business registration number 341457); and
(3) CHINA NETWORK COMMUNICATIONS GROUP CORPORATION (GRAPHIC OMITTED), ("China
Netcom"), a state-owned enterprise established under the laws of the
People's Republic of China and whose registered office is at Xx.0 Xxxxxxx
Xxxxxx, Xxxxxxx Xxxxxxxxxxx Xxxx, Xxxxxxx 000000, PRC.
Background:
(A) At the date of this Agreement, the Company has an authorised share capital
of HK$1,600,000,000 divided into 6,400,000,000 Shares, of which
5,374,287,061 Shares have been issued and are fully paid up.
(B) All of the issued Shares are currently listed on the Stock Exchange.
(C) The Company has agreed to issue and the Subscriber has agreed to subscribe
for the Subscription Shares on the terms and subject to the conditions set
out in this Agreement.
(D) China Netcom has agreed to guarantee the obligations of the Subscriber
under this Agreement.
THE PARTIES AGREE THAT:
1. Definitions and Interpretation
1.1 Definitions
In this Agreement (including the recitals above), the following expressions
shall, unless the context requires otherwise, have the following meanings:
"Articles" means the Articles of Association of the Company;
"associate" has the meaning ascribed to it in the Listing Rules;
"Authority" means any competent governmental, administrative, supervisory,
regulatory, judicial, determinative, disciplinary, enforcement or tax
raising body, authority, agency, board, department, court or tribunal of
any jurisdiction and whether supranational, national, regional or local;
"Board" means the board of directors of the Company;
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"Broadcasting Ordinance" means the Broadcasting Ordinance (Chapter 562 of
the Laws of Hong Kong);
"Business Day" means any day (excluding a Saturday) on which banks
generally are open for business in Hong Kong;
"CNC Group" means China Netcom and its Subsidiaries and "member of the CNC
Group" shall be construed accordingly;
"CNC HK" means China Netcom Group Corporation (Hong Kong) Limited, a
Subsidiary of China Netcom, the shares of which are listed on the Stock
Exchange;
"Completion Date" means the second Business Day after the date upon which
the last of the Conditions (except such Conditions which are expressed to
be satisfied on or as at the Completion Date) has been satisfied or, where
applicable, waived provided that it shall be a date no later than 15 June
2005, or such other time and/or date as the Parties may agree in writing;
"Companies Ordinance" means the Companies Ordinance (Chapter 32 of the Laws
of Hong Kong);
"Company Warranties" means the representations and warranties to be given
by the Company set out in Schedule 1;
"Conditions" means the conditions to completion of the Subscription set out
in Clause 3.1;
"Data Room" means the copy documents relating to the affairs of the Group
to which the Subscriber has been afforded access and which are listed in
the index to the Data Room provided to the Subscriber;
"Disclosure Letter" means the letter dated the date hereof written and
delivered by or on behalf of the Company to the Subscriber;
"Disqualified Person" means a person who is, or who is considered by the
Broadcasting Authority of Hong Kong to constitute, a "disqualified person"
within the meaning of the Broadcasting Ordinance;
"Encumbrances" means liens, charges and encumbrances, claims, options and
third party rights;
"Group" means the Company and its Subsidiaries and the expression "member
of the Group" shall be construed accordingly;
"Hong Kong" means the Hong Kong Special Administrative Region of the
People's Republic of China;
"HK$" means Hong Kong dollars, the lawful currency of Hong Kong;
"Listing Rules" means the Rules Governing the Listing of Securities on the
Stock Exchange and the expression "Listing Rule" shall be construed
accordingly;
"Parties" means the named parties to this Agreement and their respective
successors and permitted assigns and the expression "Party" shall be
construed accordingly;
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"PRC" means the People's Republic of China excluding Hong Kong, the Macau
Special Administrative Region of the People's Republic of China and Taiwan;
"PRC Business Development Committee" shall have the meaning ascribed
thereto in clause 7.1;
"PRC Operations" shall have the meaning ascribed thereto in clause 7.1;
"Principal Officer" means a person who is, or is considered by the
Broadcasting Authority of Hong Kong to constitute, a "principal officer"
within the meaning of the Broadcasting Ordinance;
"Proceedings" means any legal action or proceedings, including arbitration,
in connection with this Agreement;
"SFC" means the Securities and Futures Commission of Hong Kong;
"SFO" means the Securities and Futures Ordinance (Chapter 571 of the Laws
of Hong Kong);
"Shares" means shares of HK$0.25 each in the capital of the Company;
"Stock Exchange" means The Stock Exchange of Hong Kong Limited;
"Subscription" means the subscription by the Subscriber for the
Subscription Shares on the terms and subject to the conditions set out in
this Agreement;
"Subscription Announcement" means the press announcement in agreed form to
be issued jointly by the Company and China Netcom in substantially such
form immediately following the execution of this Agreement (or with such
amendments as agreed by the Parties or as may be required by the SFC and/or
the Stock Exchange);
"Subscription Price" means HK$5.90 per Subscription Share;
"Subscription Shares" means 1,343,571,766 new Shares;
"Subsidiary" has the same meaning as in Section 2 of the Companies
Ordinance as at the date hereof;
"Substantial Shareholders" means Pacific Century Regional Developments
Limited, Pacific Century Group Holdings Limited and Pacific Century
Diversified Limited and "Substantial Shareholder" means any one of them;
"Substantial Shareholders Anti-Dilution Agreements" means the agreements
dated the date hereof entered into between the Company and each Substantial
Shareholder and pursuant to which each Substantial Shareholder has been
granted anti-dilution rights substantially similar to those rights to be
granted to the Subscriber pursuant to clause 8.5 of this Agreement (subject
in each case to approval by the shareholders of the Company as referred to
in clause 3.1(A) below);
"Takeovers Code" means the Hong Kong Code on Takeovers and Mergers; and
"US$" means United States dollars, the lawful currency of the United States
of America.
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1.2 Construction and Certain References
In this Agreement:
(A) any reference to a document being "in agreed form" means in the form
of the document or the draft thereof signed for identification on
behalf of the Parties (and such other parties as may be relevant) with
(in the case of a draft) such alterations (if any) as may be agreed
between the Parties (and such other parties as may be relevant);
(B) references to the singular shall include the plural and vice versa and
references to the masculine, the feminine and the neuter shall include
each other such gender;
(C) "person" includes any individual, partnership, body corporate,
corporation sole or aggregate, state or agency of a state, and any
unincorporated association or organisation, in each case whether or
not having separate legal personality;
(D) "company" includes any body corporate, wherever incorporated or
existing;
(E) references to recitals, clauses, sub-clauses and schedules are
references to the recitals, clauses and sub-clauses of, and schedules
to, this Agreement;
(F) (save as otherwise expressly stated herein), references to any
statute, statutory provision, Listing Rule or rule of the Takeovers
Code includes a reference to that statute, statutory provision,
Listing Rule or rule of the Takeovers Code as from time to time,
amended, extended or re-enacted;
(G) all references in this Agreement in relation to any time, date or
period shall mean Hong Kong time;
(H) words introduced by the word "other" shall not be given a restrictive
meaning because they are preceded by words referring to a particular
class of acts, matters or things; and
(I) general words shall not be given a restrictive meaning because they
are followed by words which are particular examples of the acts,
matters or things covered by the general words and the word
"including" shall be construed without limitation.
1.3 Headings
Headings are inserted for convenience only and shall not affect the
interpretation of this Agreement.
2. Agreement to Subscribe
2.1 Subscription
The Subscriber agrees to subscribe for, and the Company agrees to issue,
the Subscription Shares at the Subscription Price, free from Encumbrances
on the terms and subject to the conditions set out in this Agreement.
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2.2 Subscription Shares
The Company agrees that the Subscription Shares will, when fully paid, rank
pari passu in all respects with the other Shares in issue or to be issued
by the Company on or prior to the Completion Date with the right to all
dividends and other distributions declared or resolved to be paid at any
time on or after the date of allotment.
3. Conditions of the Subscription
3.1 Conditions
Completion of the Subscription is conditional upon:
(A) the passing by the shareholders of the Company (being such
shareholders as are allowed to vote under the Listing Rules or
permitted by the Stock Exchange to vote) at an extraordinary general
meeting of the Company of a resolution in agreed form (or with such
changes as are required by the Stock Exchange or the SFC) to:
(1) increase the authorised share capital of the Company to
HK$2,500,000,000 comprising of 10,000,000,000 Shares;
(2) grant to the directors of the Company a specific mandate to
allot, issue and deal with the Subscription Shares; and
(3) approve the anti-dilution rights granted in favour of China
Netcom contained in clause 8.5 below and the anti-dilution rights
granted in favour of each of the Substantial Shareholders
pursuant to the Substantial Shareholders Anti- Dilution
Agreements;
(B) (1) listing of and permission to deal in all the Subscription Shares
being granted by the Listing Committee of the Stock Exchange; and
(2) the listing and permission referred to in Condition 3.1(B)(1) not
subsequently being revoked prior to the Completion Date;
(C) delivery by the Subscriber to the Company on the Completion Date of a
legal opinion from British Virgin Islands counsel relating to, among
other things, the capacity and authority of the Subscriber to enter
into this Agreement and perform its obligations hereunder, such
opinion to be in form and substance satisfactory to the Company;
(D) delivery by China Netcom to the Company on the Completion Date of a
legal opinion from PRC counsel relating to, among other things, the
capacity and authority of China Netcom to enter into this Agreement
and perform its obligations hereunder and the governmental, regulatory
or similar consents required from any Authority of the PRC required by
the Subscriber and/or China Netcom to enter into, and to perform their
respective obligations under this Agreement, such opinion to be in
form and substance satisfactory to the Company;
(E) the obtaining by China Netcom of such consent or approval of a PRC
governmental body or regulatory authority as is required for China
Netcom and the Subscriber to enter into and perform their obligations
under this Agreement; and
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(F) none of the Company Warranties being found to be, or no event
occurring or matter arising which renders any of the Company
Warranties, untrue or incorrect in any material respect on and as at
the Completion Date (and, but without prejudice to any other rights of
any of the Parties under this Agreement, for the purposes of this
sub-clause, a Company Warranty will be deemed to be untrue or
incorrect in a material respect if the liability of the Company from
the resulting claim would be in excess of US$100 million).
3.2 Fulfilment
(A) The Subscriber and China Netcom shall use their reasonable endeavours
to procure the fulfilment of the Conditions in clauses 3.1(C), 3.1(D)
and 3.1(E), and in the case of the Condition in clause 3.1(E), shall
notify the Company immediately upon the satisfaction thereof.
(B) The Company shall use its reasonable endeavours to procure the
fulfilment of the Condition in clauses 3.1(A) and 3.1(B).
(C) The Company, China Netcom and the Subscriber shall each use its
respective reasonable endeavours to procure the fulfilment of the
Condition in clause 3.1(A) and in particular shall furnish such
information, supply such documents, give such undertakings and do all
such acts and things as may reasonably be required by each other, the
SFC, the Stock Exchange and/or any Authority in connection with the
fulfilment of such Conditions.
(D) Should any Party become aware of anything which will or is reasonably
likely to prevent any of the Conditions from being satisfied, it shall
forthwith disclose the same to the others.
3.3 Non-Fulfilment
(A) The Condition in clause 3.1(F) may be waived by the Subscriber. The
Conditions in clauses 3.1(C) and 3.1(D) may be waived by the Company.
(B) If the Conditions (except such Conditions which are expressed to be
satisfied on or as at the Completion Date) are not each fulfilled or
waived in writing by the relevant Party on or before 13 June 2005 or
such later date as may be agreed between the Company and the
Subscriber, this Agreement shall terminate and none of the Parties
will have any claim against the other for costs, damages, compensation
or otherwise save for any antecedent breach (including, for the
avoidance of doubt, any breach of clauses 3.2 or 6).
4. Completion of the Subscription
4.1 Company's Obligations
Subject to the fulfilment of the Conditions and subject to the performance
by the Subscriber of its obligations under clause 4.2, completion of the
Subscription shall take place at the offices of the Company (or at such
other place as may be agreed upon in writing by the Parties) on the
Completion Date, at which time the Company shall:
(A) allot and issue to the Subscriber the Subscription Shares and shall
promptly thereafter register the Subscriber as a member of the Company
and shall cause to
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be delivered to the Subscriber definitive certificates of title in
respect thereof in the name of the Subscriber in board lots (as nearly
as practicable);
(B) procure that the following appointments be made, effective on the
Completion Date:
(1) Xx. Xxxxx Chunjiang, Xx. Xxxx Suning and Dr. Fan Xingcha as
members of the Board;
(2) Xx. Xxxx Suning as an additional deputy chairman of the Board;
and
(3) each of the persons named in the left column below as a member of
the committee referred to in the right column opposite his/her
name:
Xx. Xxxx Suning The Executive Committee
Dr. Fan Xingcha The Finance and Management Committee
Xx. Xxxx Suning The Remuneration Committee
Xx. Xxxxx Chunjiang The Nomination Committee
Xx. Xxxxx Chunjiang The Regulatory Compliance Committee
Xx. Xxxx Suning and
Dr. Fan Xingcha PRC Business Development Committee
(C) procure a resolution of the Board to be passed confirming the
Company's intention that it shall, during the 18 month period
commencing on the Completion Date, explore opportunities for expanding
the PRC Operations and that, subject to satisfaction of the Group's
capital investment approval procedures and the identification of
appropriate investment opportunities, it presently intends to seek to
invest up to HK$5 billion in expanding its PRC Operations;
(D) deliver to the Subscriber certified copies of the resolution passed by
the Shareholders of the Company pursuant to clause 3.1(A);
(E) deliver to the Subscriber certified copies of the resolutions of the
directors of the Company (or a committee) allotting the Subscription
Shares pursuant to clause 4.1(A), making the appointments pursuant to
clause 4.1(B) and confirming the Company's intentions in relation to
the expansion of the PRC Operations pursuant to clause 4.1(C);
(F) deliver to the Subscriber a certificate in agreed form confirming,
amongst other things, that there has been no material adverse change
since 30 September 2004 and a letter from the Company in agreed form
confirming the intention to reduce the number of directors on the
Board; and
(G) deliver a certified true copy of the permission from the Listing
Committee of the Stock Exchange referred to in clause 3.1(C).
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4.2 Subscriber's Obligations
At completion of the Subscription the Subscriber shall make or procure the
making of payment to the Company, in same day cleared funds, of the
aggregate Subscription Price of the Subscription Shares, to the bank
account nominated for that purpose by the Company not less than three
Business Days prior to the Completion Date, or in such other manner as may
be agreed in writing between the Parties.
4.3 Failure to Complete
If the provisions of clause 4.2 are not complied with by the Subscriber,
the Company may defer completion of the Subscription to a date determined
at the Company's sole discretion or terminate this Agreement without
liability of any kind and without prejudice to any rights the Company has
against any other Party in respect of any antecedent breach of this
Agreement.
4.4 Alternate Subscriber
(A) Provided that the Subscriber gives written notice in accordance with
clause 4.4(B), the Subscriber shall be entitled to assign all (but not
part only) of its rights in and to this Agreement (including the right
to subscribe for and be issued and allotted the Subscription Shares at
completion of the Subscription and the rights and benefit of and to
the Company Warranties) to a company which is wholly-owned by the
Subscriber (the "Alternate Subscriber"), provided that:
(1) at completion of the Subscription the Alternate Subscriber is a
wholly-owned subsidiary of the Subscriber and an indirect
wholly-owned subsidiary of China Netcom;
(2) on or before the Completion Date, the Alternate Subscriber enters
into and delivers to China Netcom and to the Company an agreement
in a form satisfactory to the Company undertaking to comply with
the obligations of the Subscriber under this Agreement (including
giving representations and warranties relating to itself similar
to those contained in clause 6 of their Agreement relating to the
Subscriber);
(3) the legal opinion referred to in clause 3.1(C) and (D) shall also
relate to the Alternate Subscriber and the agreement referred to
in paragraph (2) above; and
(4) the Subscriber shall remain liable for any breach by it of this
Agreement prior to such assignment, and shall remain bound to
perform and comply with all its covenants, undertakings and
obligations under this Agreement.
(B) If the Subscriber intends to assign its rights and interest in and to
this Agreement pursuant to clause 4.4(A), the Subscriber shall notify
the Company in writing of its intention to do so not less than five
Business Days prior to the Completion Date. For the avoidance of
doubt, the Subscriber shall not be entitled to assign, transfer or
otherwise dispose of all or any of its obligations under this
Agreement. If the Subscription Shares are issued and allotted to an
Alternate Subscriber pursuant to this clause, the references to the
"Subscriber" in clauses 4.1, 6.3(B), 8.5(M), 8.7(A) and 8.7(B) shall
be deemed thereafter to refer to the "Alternate Subscriber", and
references to "Subscriber" in clause 6.4 shall be deemed to refer to
both the Subscriber and Alternate Subscriber.
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5. Representations, Warranties and Undertakings of the Company
5.1 Representations and Warranties of the Company
(A) The Company hereby warrants and represents, to and for the benefit of
the Subscriber in the terms of the Company Warranties set out in
Schedule 1, subject to the provisions of this Agreement and in
particular the exclusions and limitations in Schedule 2.
(B) The Company Warranties are given subject to facts and matters
disclosed in or by this Agreement, the Disclosure Letter and every
document contained in the Data Room and the Subscriber shall
accordingly have no claim in respect of any of the Company Warranties
in relation to any fact or matter so disclosed.
(C) Any matter which would be or give rise to a breach of any of the
Non-Accounts Warranties but for an express exclusion from, or
qualification or limitation to, the terms of such Non-Accounts
Warranty (whether such exclusion, qualification or limitation is in
respect of the awareness of the Company, materiality, or any other
matter) shall be deemed not to be or give rise to a breach of any of
the Accounts Warranties. For this purpose, the "Accounts Warranties"
are the Company Warranties set out in paragraphs 2, 3 and 13 of
Schedule 1 and the "Non-Accounts Warranties" are all the Company
Warranties other than the Accounts Warranties.
(D) Each of China Netcom and the Subscriber acknowledges that it has not
been induced to enter into this Agreement by, and that it does not in
connection with this Agreement or its subject matter rely on, any
representation, warranty, promise or assurance by the Company or any
other person save for those contained in this Agreement. Each of China
Netcom and the Subscriber agrees that it shall have no right or remedy
in respect of, and shall not in connection with any claim arising in
relation to this Agreement or its subject matter, plead or assert the
making or existence of, any representation, warranty, promise or
assurance by the Company or its directors, employees, advisers or any
other person save for those herein contained. Neither China Netcom nor
the Subscriber shall have any right to rescind or terminate this
Agreement and the only remedy of China Netcom and the Subscriber shall
be damages for breach of this Agreement.
(E) The Subscriber shall be entitled to claim both before and after
completion of the Subscription that any of the Company Warranties has
or had been breached or is or was misleading and, without limitation,
to claim under any covenant even if the Subscriber and/or China Netcom
knew or could have discovered on or before Completion that the Company
Warranty in question had been breached or was misleading and
Completion shall not in any way constitute a waiver of any of the
Subscriber's rights. Notwithstanding the preceding sentence, each of
China Netcom and the Subscriber warrants and undertakes to the Company
that, at the time of entering into this Agreement, neither China
Netcom nor the Subscriber is aware of any facts or circumstances which
will or may entitle the Subscriber to make a claim under any of the
Company Warranties.
(F) The Subscriber and China Netcom acknowledge that neither the Company
nor any of its directors, shareholders, employees or advisers owes to
the Subscriber or China Netcom any duty of care in relation to the
subject matter of this Agreement or any matter connected with it.
Nothing in this sub-clause shall restrict or impair the rights of the
Subscriber and/or China Netcom under this Agreement, or in the
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event of fraud by any of the Company or any of its directors,
shareholders, employees or advisers.
(G) The Company makes no representation or warranty to the Subscriber as
to the completeness, truth or accuracy of the matters disclosed in the
Disclosure Letter or in the Data Room other than the 2003 Accounts,
the 30 September Accounts and the Previous Announcements (as such
terms are defined in Schedule 1 and in respect of which the warranties
in paragraphs 2, 3 and 4 of Schedule 1 apply) provided always that
nothing in this sub-clause (G) shall exclude or limit any claim under
or in respect of the Company Warranties.
(H) Notwithstanding any provision in this Agreement to the contrary,
nothing in this clause 5.1 shall exclude or affect any right or remedy
available to the Subscriber (or, if relevant, China Netcom) in respect
of fraud. China Netcom and the Subscriber acknowledges that their
legal advisers have explained to each of them the effect of this
clause 5.1 and Schedule 2.
(I) The Company undertakes to disclose in writing to the Subscriber
anything which will be or is reasonably likely to be a breach of any
of the Company Warranties on and as at the Completion Date promptly
after such thing comes to its notice both prior to and on the
Completion Date. The Company agrees to promptly provide such
information as may be reasonably requested by the Subscriber, from the
date hereof until the Completion Date, in order to enable the
Subscriber to assess whether a breach of the Company Warranty will
occur on the Completion Date.
(J) Each of the Company Warranties shall be construed as a separate and
independent warranty and shall not be limited or restricted by
reference to or inference from the terms of any other Company Warranty
or any other term of this Agreement.
(K) The Subscriber agrees and acknowledges that the Company will not be
liable for any claim for any breach of the Company Warranties if and
to the extent that the claim results from any act or circumstance
which is carried out or arises as a result of the entering into of, or
the performance by the Company of its obligations under, this
Agreement.
5.2 Period
Save as expressly provided otherwise, the representations and warranties
set out in Schedule 1 are given as at the date hereof and shall be deemed
to be repeated by the Company on the Completion Date as if given or made on
such date, with reference in each case to the facts and circumstances then
subsisting.
5.3 Claims against parties other than the Company
Each of China Netcom and the Subscriber agrees and undertakes that (save in
respect of fraud) it has no rights against and shall not make any claim
against any Subsidiary of the Company or any present or former employee,
director, shareholder, agent, officer or adviser of any member of the Group
in connection with this Agreement or its subject matter.
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6. Representations, Warranties and Undertakings of the Subscriber and China
Netcom
6.1 Subscriber/China Netcom Warranties
The Subscriber (in relation to itself only) and China Netcom each hereby
undertakes, represents and warrants to the Company as follows:
(A) As at the date of this Agreement it has (subject to the obtaining by
China Netcom of the approval of the PRC State Council), and on the
Completion Date it will have, the full right, power and authority to
enter into, and to perform its obligations under, this Agreement and
this Agreement constitutes its legal, valid and binding obligations
enforceable in accordance with its terms.
(B) As at the date of this Agreement it has (subject to the obtaining by
China Netcom of the approval of the PRC State Council), and on the
Completion Date it will have, obtained all governmental, regulatory
or similar consents required from any Authority, authorities,
approvals and permissions required to enter into, and to perform its
obligations under, this Agreement and there are no regulatory or
administrative obstacles to the remittance of the Subscription monies
to the Company in Hong Kong in accordance with the terms of this
Agreement.
(C) China Netcom is the legal and beneficial owner of the whole of the
issued share capital of the Subscriber, and the Subscriber is the
legal and beneficial owner of all the issued shares in CNC HK held by
the CNC Group.
(D) The execution, delivery and performance by it of this Agreement does
not and will not result in a material breach of any provision in its
memorandum or articles of association or other constitutional
documents.
(E) No order has been made and no resolution has been passed for the
winding up of the Subscriber or China Netcom (as the case may be) or
for a provisional liquidator to be appointed in respect of it and no
petition has been presented and no meeting has been convened for the
purposes of winding up the Subscriber or China Netcom (as the case
may be).
(F) No administration order has been made and no petition for such an
order has been presented in respect of the Subscriber or China Netcom
(as the case may be).
(G) No receiver (which expression shall include an administrative
receiver) has been appointed in respect of the Subscriber or China
Netcom (as the case may be).
(H) It is not insolvent or unable to pay its debts and has not stopped
paying its debts as they fall due.
(I) No event analogous to any described in paragraphs (E) to (H) has
occurred in or outside the PRC with respect to the Subscriber or
China Netcom (as the case may be).
(J) All statements of fact relating to the CNC Group contained in the
Subscription Announcement are true and accurate in all material
respects and not misleading in any material respect in the form and
context in which they appear, all expressions of opinion, intention
or expectation contained therein (which are stated to be held or
expressed by any member of the CNC Group) are made on reasonable
grounds and are truly and honestly held by the directors of the
relevant member of CNC
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Group and are fairly based, and there are no other facts relating to
the CNC Group omitted the omission of which makes any such statement
or expression in the Subscription Announcement misleading in any
material respect or which are or can reasonably be expected to be
material in the context of the Subscription.
(K) Under the laws of the PRC, neither China Netcom nor any of its
properties, assets or revenues are entitled to any right of immunity
on the grounds of sovereignty from any legal action, suit or
proceedings, from set-off or counter claim, from the jurisdiction of
any court or arbitral tribunal, from service of process, from
attachment prior to or in aid of execution of judgment or arbitral
award, or from other legal process or proceedings for the giving of
any relief or for the enforcement of any judgment or arbitral award.
(L) None of China Netcom, the Subscriber, and none of their respective
directors (or equivalent) or Principal Officers, is a Disqualified
Person.
6.2 Repetition of Subscriber/China Netcom Warranties, etc
(A) The representations and warranties set out in clause 6.1 are given as
at the date hereof and shall be deemed to be repeated by the
Subscriber and China Netcom on the Completion Date as if given or made
on such date, with reference in each case to the facts and
circumstances then subsisting.
(B) Each of China Netcom and the Subscriber undertakes to disclose in
writing to the Company anything which will be or is reasonably likely
to be a breach of any of the representations and warranties set out in
clause 6.1 on and as at the Completion Date promptly after such thing
comes to its notice both prior to and on the Completion Date. Each of
China Netcom and the Subscriber agrees promptly to provide such
information as may be reasonably requested by the Company, from the
date hereof until the Completion Date, in order to enable the Company
to assess whether a breach of any representations and warranties set
out in clause 6.1 will occur on the Completion Date.
6.3 Other Undertakings of Subscriber and China Netcom
(A) Each of the Subscriber and China Netcom undertakes that it will, both
prior to and following the Completion Date, furnish such information,
supply such documents, give such undertakings and do all such acts and
things as may reasonably be required by the Company to:
(1) facilitate the satisfaction of the Conditions;
(2) facilitate the obtaining by the Group of all consents, approvals
and confirmations that may be required from any Authority in
connection with this Agreement; and/or
(3) enable the Company to perform its obligations under this
Agreement.
(B) China Netcom undertakes that it will remain at all times the direct or
indirect holder of the entire issued share capital of the Subscriber
provided that China Netcom may dispose to one or more third parties of
not more than an aggregate of 25 per cent. (25%) of its direct or
indirect interest in the issued share capital of the Subscriber
provided that:
12
(1) any relevant third party which acquires an interest in the
Subscriber ("Subscriber Investor") is not a Disqualified Person;
and
(2) China Netcom will, after such disposal, retain voting control of
the Subscriber and will also retain the direct or indirect right
to appoint a majority of the board of directors of the
Subscriber; and
(3) none of the Subscriber Investors shall have any right or
understanding or arrangement (whether formal or informal) to
nominate any person as a director of the Company.
6.4 Matters relating to the Broadcasting Ordinance
General obligation - directors and Principal Officers of the Company/
Subscriber
(A) China Netcom undertakes that it will not nominate any person who is a
Disqualified Person as a director or Principal Officer of the Company.
Each of China Netcom and the Subscriber undertakes that it will not
nominate or appoint any person who is a Disqualified Person as a
director or Principal Officer of the Subscriber.
Certain proposed changes
(B) If:
(1) China Netcom proposes to nominate any person to replace any of
the appointments made under clause 4.1(B); or
(2) China Netcom or the Subscriber proposes any change to the
directors or Principal Officers of the Subscriber; or
(3) China Netcom or the Subscriber proposes to introduce a Subscriber
Investor or if either of them proposes any change, or is aware of
any proposed change, in the shareholders of the Subscriber and
their respective interests in the Subscriber,
China Netcom and the Subscriber shall promptly provide such
information as the Company may reasonably request to enable the
Company to deal with such issues (if any) as may arise in connection
with the Broadcasting Ordinance and/or the Group's licences issued
under the Broadcasting Ordinance.
(C) If the Company reasonably considers that a "disqualified person" issue
will arise under the Broadcasting Ordinance as a result of any of the
proposals referred to in clause 6.4(B)(1) to (3), the Company is not
obliged to procure that China Netcom's proposed replacement Board
nominee(s) is/are appointed (notwithstanding clause 8.6, but without
prejudice to China Netcom's rights under clause 8.6 to nominate
another person as a replacement Board nominee and to the Company's
obligations thereunder in respect of such other nominee), and China
Netcom and the Subscriber shall not make or permit to occur any of the
changes referred to in clause 6.4(B)(2) and/or (3), until all
information concerning such nominee(s) or Subscriber Investor(s) (as
applicable) as is required by the Broadcasting Authority and the Chief
Executive in Council has been provided to them, and the Broadcasting
Authority and the Chief Executive in Council have confirmed in writing
that the relevant person(s) (or, if applicable, the Subscriber
Investor(s)) is/are not Disqualified Person(s).
13
Changes in circumstances resulting in Disqualified Person issues
(D) If at any time any of:
(1) China Netcom;
(2) the Subscriber;
(3) the directors (or equivalent) or Principal Officers of China
Netcom or of the Subscriber;
(4) the persons nominated by China Netcom as directors of the
Company;
(5) a Subscriber Investor; or
(6) the persons nominated by a Subscriber Investor as directors of
the Subscriber,
is or becomes a Disqualified Person, or is reasonably considered by
the Company, China Netcom or the Subscriber to be a "disqualified
person" within the meaning of the Broadcasting Ordinance, the Company,
China Netcom or the Subscriber (as applicable) shall immediately
notify the others in writing of such issue (which notice shall set out
reasonable details of the reasons why such person is or is reasonably
considered to be a "disqualified person"). China Netcom shall assist
and facilitate the Company in seeking such consents, approvals and
confirmations as may be required from the Broadcasting Authority, the
Chief Executive in Council or otherwise in connection with the
Broadcasting Ordinance. China Netcom shall promptly provide such
information as the Company may reasonably request to enable the
Company to deal with such issues (if any) as may arise in connection
with the Broadcasting Ordinance and/or the Group's licences issued
under the Broadcasting Ordinance.
(E) Notwithstanding any provision in this Agreement to the contrary:
(1) if any person nominated by China Netcom as director of the
Company is or becomes a Disqualified Person, and if requested by
the Company so to do, China Netcom shall immediately procure his
removal from office as a director of the Company;
(2) if a Subscriber Investor is or becomes a Disqualified Person, and
if requested by the Company so to do, China Netcom shall
immediately use all reasonable endeavours to procure that such
third party ceases to be so interested; and
(3) if a person nominated by a Subscriber Investor as a director of
the Subscriber is or becomes a Disqualified Person, China Netcom
shall immediately procure that such person ceases to hold such
office.
(F) China Netcom shall provide such information as the Company may from
time to time reasonably request to ascertain whether (1) any director
(or equivalent) or Principal Officer of any member of the CNC Group or
(2) any person nominated by China Netcom as a director of the Company
is or may be a "disqualified person" within the meaning of the
Broadcasting Ordinance.
14
7. The Group's operations in the PRC
7.1 PRC Business Development Committee
(A) On the Completion Date, a committee, to be called the "PRC Business
Development Committee", shall be formed. The terms of reference of the
PRC Business Development Committee shall include, as a principal
function of such committee, advising on possible opportunities for the
expansion of the Group's operations in the PRC ("PRC Operations")
(including the potential investment of up to HK$5 billion and the
investment fund of US$50-100 million referred to in clause 7.1(B)) and
monitoring the use of funds allocated and approved by the Board or
relevant committee in relation to opportunities approved by the Board
or relevant committee in connection with the expansion of the Group's
PRC Operations. The PRC Business Development Committee shall have four
members, two of whom shall be members of the Board nominated by China
Netcom. Except as determined by the Board from time to time, all
decisions of the PRC Business Development Committee shall require the
unanimous vote and approval of all members of such committee.
(B) The Company undertakes that, as soon as practicable after the
Completion Date (and in any event within three months of the
Completion Date), it will establish a separate investment fund with an
initial capital investment by the Company as the founder of the fund
of US$100 million, or such lesser amount above US$50 million as the
Company may determine (and such investment shall be part of the HK$5
billion referred to in clause 4.1(C)) and seek third party investors
to contribute additional capital with a view to increasing the size of
the fund to up to US$300 million. The investment objectives of the
fund will be value added telecommunications services and operations in
the PRC. The investment fund shall have its own investment guidelines
and approval procedures (determined by the Board or relevant committee
at the time of establishing the fund). Two members of the PRC Business
Development Committee (of which only one shall be a member of the
Board nominated by China Netcom) will be given responsi bility for
establishing the investment fund and managing it thereafter in
accordance with the applicable investment guidelines and approval
procedures, together with such other managers as they shall recommend
to the Board or relevant committee for approval.
7.2 Co-Group Managing Director
(A) If at any time after the Completion Date the Group's PRC Operations
constitute a substantial part of the Group's operations, and for as
long as such PRC Operations remain a substantial part of the Group's
operations, China Netcom shall have the right to nominate a person who
is for the time being a director of the Company and has the requisite
qualifications and experience, as "Co-Group Managing Director", whose
appointment shall be subject to the approval of the Board. In the
event that the Board declines to appoint a director of the Company
nominated by China Netcom on the grounds that such director does not
have the requisite qualifications and experience, China Netcom may
nominate another director of the Company as Co-Group Managing
Director, whose appointment shall also be subject to the approval of
the Board. The Co-Group Managing Director shall be in addition to such
other managing director(s) of the Group as may be in office at the
time and from time to time.
15
(B) For the purpose of clause 7.2(A), the PRC Operations shall be deemed
to constitute a substantial part of the Group's Operations if:
(1) at any time during the twelve months commencing from the
Completion Date, the PRC Business Development Committee (referred
to in clause 7.1) resolves that the PRC Operations have become a
substantial part of the Group's Operations; or
(2) the PRC Business Development Committee does not so resolve within
the twelve months commencing from the Completion Date, and if at
any time after such period China Netcom determines that the PRC
Operations have become a substantial part of the Group's
Operations.
7.3 Cessation
The provisions of clauses 7.1 and 7.2 shall cease to be of any effect upon
the earlier of:
(A) the Subscriber at any time ceasing to hold at least ten per cent.
(10%) of the total issued share capital of the Company; and
(B) China Netcom ceasing to hold, directly or indirectly, at least 75% of
the issued share capital of the Subscriber or China Netcom otherwise
being in material breach of clause 6.3(B).
8. Certain Company Undertakings
8.1 China Netcom's Obligations to CNC HK
(A) For so long as the CNC HK Non-Competition Agreement remains in effect,
if the Company or any member of the Group proposes to establish,
engage or be directly or indirectly interested in carrying on a
Proposed Business, the Company shall, before doing so or agreeing to
do so, inform China Netcom by notice in writing (a "Notice"), setting
out the principal details of the Proposed Business. Upon receipt of
such Notice (and any other relevant details which China Netcom may
reasonably request), China Netcom and the Company shall discuss the
Proposed Business. China Netcom shall, within 15 days of the giving of
the Notice ("15 Day Period"), inform the Company in writing of its
views as to whether or not the Proposed Business will or is reasonably
likely to be considered to constitute a CNC HK Competing Business.
(B) If, within the 15 Day Period, China Netcom notifies the Company in
writing that the Proposed Business will or is reasonably likely to be
considered to constitute a CNC HK Competing Business, China Netcom and
the Company shall immediately consult in good faith with a view to (1)
determining to what extent and in what manner the Proposed Business
constitutes or might constitute a CNC HK Competing Business, (2)
determining to what extent it would be possible for the Proposed
Business to be structured so that it or part of it does not constitute
a CNC HK Competing Business, and (3) assisting China Netcom to seek
the consent of CNC HK to the extent required under the CNC HK
Non-Competition Agreement or to the extent such consent has not
already been given in writing. The parties acknowledge that the
purpose of this clause is to enable due and careful consideration to
be given to the nature and extent of the obligations of China Netcom
under the CNC HK Non-Competition Agreement, and to afford China Netcom
an opportunity to comply fully with its obligations thereunder.
16
(C) For the purpose of this clause 8.1:
(1) "CNC HK Competing Business" means a business that falls within
the meaning of paragraphs 3 and 4 of clause 1 of the CNC HK
Non-Competition Agreement;
(2) "CNC HK Non-Competition Agreement" means the non-competition
agreement dated 6 September 2004 made between, amongst others,
China Netcom and CNC HK; and
(3) "Proposed Business" means a business which the PRC Business
Development Committee considers will or may be in direct or
indirect competition with the business of CNC HK or any of its
Subsidiaries.
(D) Notwithstanding clause 8.1 (A), the Company and any member of the
Group may hold or be interested in securities in another body
corporate if such securities are listed on a recognised stock exchange
and confer not more than ten per cent. (10%) of the votes which could
normally be cast at a general meeting of the body corporate.
(E) For the avoidance of doubt, this clause 8.1 shall not:-
(1) prevent or delay the Company or any member of the Group from
commencing or continuing any negotiations in relation to any
business opportunity (whether or not such business opportunity
constitutes or may constitute a CNC HK Competing Business); or
(2) prevent the Company or any member of the Group from entering into
any contract or other arrangement in relation to any business
opportunity (whether or not such business opportunity constitutes
or may constitute a CNC HK Competing Business), provided that:
(a) if China Netcom gives notice in writing within the 15 Day
Period that the Proposed Business will or is reasonably
likely to be considered to constitute a CNC HK Competing
Business, the Company or the relevant member of the Group
does not do so within 30 days of the giving by China Netcom
of such notice; and
(b) if China Netcom gives notice in writing within the 15 Day
Period of its view that Proposed Business will not be
considered to constitute a CNC HK Competing Business, or if
China Netcom does not give a response to the Notice, the
Company or the relevant member of the Group does not do so
within the 15 Day Period.
8.2 Arrangements with CNC HK Competitor
(A) If the Company or any member of the Group either (i) intends to pursue
or develop a business opportunity, or (ii) is offered an opportunity
to participate in a business opportunity, in each case with any entity
which is the holder of a licence currently required for the provision
of basic fixed-line telecommunications services in the PRC (or a
member of a group of which another member is the holder of such a
licence) relating to (a) the establishment of a new joint venture
(whether equity, co- operative or other profit sharing arrangement in
the nature of a joint venture) to exploit a business opportunity
within the PRC or (b) the sale by the Group of any
17
business or assets constituting a business in the PRC (in each case, a
"Relevant Opportunity"), the Company shall, before doing so or
agreeing to do so, inform China Netcom by notice in writing (a "JV
Notice") provided that:
(1) in the case of the establishment of a new joint venture, this
clause 8.2 shall only apply if such joint venture (whether
equity, co-operative or other profit sharing arrangement in the
nature of a joint venture) (i) relates to basic fixed line
telecommunications services as currently provided in the PRC and
is considered in good faith by China Netcom (after having
considered the details of the Relevant Opportunity submitted to
it) to be of a strategic nature to the Group and/or involves an
initial capital investment or commitment by the Group in excess
of US$100 million; or (ii) relates to any non-regulated services
which involves an initial capital investment or commitment by the
Group in excess of US$100 million;
(2) in the case of a sale by the Group of any business or assets
constituting a business in the PRC, this clause 8.2 shall only
apply if such business or assets constituting a business is
considered in good faith by China Netcom (after having considered
the details of the Relevant Opportunity submitted to it) to be of
a strategic business or a strategic business opportunity in the
PRC;
(3) the provisions of clause 8.2 shall be subject to and limited by
any pre- emption or other contractually binding obligations of
the Company or the relevant member of the Group; and
(4) nothing in this clause 8.2 is intended to relate to contracts or
arrangements in the ordinary course of business.
(B) The JV Notice shall outline the principal details of the Relevant
Opportunity (whether contemplated by a member of the Group, or offered
by the relevant third party) and invite China Netcom to notify the
Company in writing within 30 days after the date on which the JV
Notice is given (the "Exercise Period") whether (i) it (or a
Subsidiary of China Netcom) wishes to be involved in the Relevant
Opportunity or, (ii) where the Relevant Opportunity arises as a result
of an offer or invitation from a third party of an opportunity to
participate in a business opportunity, whether it (or a Subsidiary of
China Netcom) wishes and is able to offer a similar business
opportunity to the Group.
(C) If, within the Exercise Period, China Netcom notifies the Company in
writing that it (or a Subsidiary of China Netcom) wishes to be
involved in the Relevant Opportunity (or, as applicable, wishes and is
able to offer a similar business opportunity to the Group), the
Company will, or will procure that the relevant member of the Group
(as the case may be) will, in good faith on an expeditious basis,
enter into discussions and negotiations with China Netcom in relation
to the Relevant Opportunity with a view to entering into a joint
venture agreement or other binding arrangement, or (in the case of a
sale referred to in clause 8.2(A)(2)) a sale and purchase agreement
for the sale of the relevant business to China Netcom (or a Subsidiary
of China Netcom), as soon as practicable.
(D) If:
(1) within the Exercise Period China Netcom notifies the Company in
writing that neither it nor any of its Subsidiaries wishes to be
involved in the Relevant
18
Opportunity (or, as applicable, does not wish and/or is unable to
offer a similar business opportunity to the Group), or
(2) China Netcom otherwise fails to notify the Company in writing
within the Exercise Period as to whether or not it (or a
Subsidiary of China Netcom) wishes to be involved in the Relevant
Opportunity (or, as applicable, whether or not it (or a
Subsidiary of China Netcom) wishes and is able to offer a similar
business opportunity to the Group); or
(3) China Netcom having served notice pursuant to sub-clause (C), no
heads of terms, letter of intent or similar outline of principal
commercial terms (in each case whether binding or non-binding) is
entered into between any member of the Group and China Netcom (or
a Subsidiary of China Netcom) within 30 days from the date on
which it served such notice,
any member of the Group may enter into a joint venture agreement
and/or other binding arrangement (including agreements relating to the
sale of the relevant business) with a third party in relation to the
Relevant Opportunity provided that such arrangement is on
substantially the same terms as those set out in the JV Notice.
8.3 Existing Businesses
Notwithstanding clause 8.2 and any other provision of this Agreement, the
Group may continue to be interested and involved in its existing
businesses, and may continue to make such further investments in, and to
further develop and expand, its existing businesses, in each case as the
Board may consider appropriate from time to time.
8.4 Non-disposal of certain assets
(A) The Company shall not without the written consent of China Netcom
(such consent not to be unreasonably withheld or delayed) sell or
dispose of more than ten per cent. (10%) of the Group's voting
interest in PCCW-HKT Telephone Limited and 25 per cent. (25%) of the
Group's voting interest in PCCW VOD Limited (other than in connection
with a bona fide reorganisation, amalgamation or scheme of arrangement
relating to the Group).
(B) The Company shall not, prior to the date falling 60 days after the
Completion Date and without the written consent of China Netcom (such
consent not to be unreasonably withheld or delayed), sell or dispose
of any of its shareholding in Pacific Century Premium Developments
Limited (other than in connection with a bona fide reorganisation,
amalgamation or scheme of arrangement relating to the Group).
Notwithstanding the foregoing, China Netcom shall not withhold or
delay its consent if any such proposed sale or disposal has in good
faith been determined by the Board to be in the best interests of the
Company and the reasons for such determination have been provided to
China Netcom in reasonable detail.
(C) Where the Group is considering any disposal of assets which does not
fall under clause 8.4(A) or 8.4(B) but such disposal will require a
circular to be issued by the Company to it shareholders under the
Listing Rules, the members of the Board nominated by China Netcom
shall be consulted in advance.
19
8.5 Anti-dilution
General Anti-dilution
(A) Subject to clause 8.5(G), the Company will not without the prior
written consent of China Netcom (such consent not to be unreasonably
withheld or delayed) in the period from the date of this Agreement to
the Completion Date issue any new Shares, any securities convertible
into or exchangeable into Shares or any warrants or other rights to
subscribe for Shares ("Relevant Securities").
(B) Subject to clauses 8.5(G) to 8.5(J), if the Company proposes,
following the Completion Date, to issue any Relevant Securities, the
Company shall notify China Netcom in writing of such proposal (an
"Issue Notice"). The Issue Notice shall specify the number and type of
Relevant Securities to be offered by the Company and the material
terms of the proposed offer (including the proposed price per security
to be paid by the proposed third party purchaser(s)).
(C) China Netcom shall have the right to purchase any number of the
Relevant Securities which are the subject of the Issue Notice up to
such number as shall represent the Pro Rata Share (as defined in
clause 8.5(K)(2)) of the Relevant Securities, upon the same terms and
conditions set forth in the Issue Notice, by giving written notice to
the Company of the exercise of this right within ten Business Days of
the giving of the Issue Notice. A notice given by China Netcom
pursuant to this clause shall be irrevocable. If such notice is not
given or deemed not to have been given by China Netcom within such ten
Business Days, China Netcom shall be deemed to have elected not to
exercise its rights under this clause 8.5(C).
(D) [Intentionally left blank]
(E) The completion of China Netcom's purchase of Relevant Securities
pursuant to clause 8.5(C) shall occur either simultaneously with the
completion of the offering of Relevant Securities or at such other
time and place as shall be mutually agreed by the Company and China
Netcom. At such completion, China Netcom shall deliver the aggregate
purchase price for the Relevant Securities to be purchased by China
Netcom pursuant to clause 8.5(C) against the Company's delivery of
certificates representing the Relevant Securities to be issued to
China Netcom pursuant to clause 8.5(C).
(F) Any Shares issued to China Netcom pursuant to clauses 8.5(B) to (E)
shall be issued on the same terms as Shares are issued to any proposed
third party purchaser, such terms being set out in the Issue Notice.
Options, convertibles, etc
(G) The provisions of clauses 8.5(A) to 8.5(F) shall not apply to:
(1) the grant of any options, or the issue of any Relevant Securities
pursuant to the exercise of share options granted (whether prior
to or after the date of this Agreement), pursuant to any share
option scheme of the Company in effect from time to time; or
(2) the issue of any Relevant Securities pursuant to any share
incentive scheme operated by the Group from time to time; or
20
(3) the issue of any Relevant Securities pursuant to the terms of any
bonds or other securities issued at any time by any member of the
Group which are convertible or exchangeable into Shares, or the
issue of any Relevant Securities as a result of the exercise of
warrants or other rights to subscribe for Shares.
For the avoidance of doubt, the anti-dilution right in clauses 8.5(B)
to 8.5(E) will apply in respect of issues of securities that are
convertible or exchangeable into Shares and in respect of issues of
warrants or other rights to subscribe for Shares at the time of issue
of those convertible or exchangeable securities or warrants or other
rights to subscribe (as the case may be) save in the case of a
Pro-Rata Offering or a Non-Cash Issuance (as defined in clauses
8.5(H)(1) and 8.5(I)(1) respectively).
Rights issues, open offers, bonus/capitalisation issues etc
(H) The provisions of clause 8.5(B) to 8.5(F) shall not apply to the issue
of any Relevant Securities pursuant to:
(1) an offer of Relevant Securities open for a period fixed by the
Board to holders of Shares on the register of members on a fixed
record date in proportion to their then holdings of Shares
(subject to such exclusions or other arrangements as the Board
may deem necessary or expedient in relation to fractional
entitlements or having regard to any restrictions or obligations
under the laws of, or the requirements of any recognised
regulatory body or any stock exchange in any territory outside
Hong Kong) ("Pro-Rata Offering"); or
(2) an issue of Shares credited as fully paid to holders of Shares
(including, without limitation, Shares paid up out of
distributable profits or reserves and/or share premium account
issued in lieu of the whole or any part of a cash dividend and
free distributions or bonus issue of Shares).
Consideration shares, top-up placings and subscriptions etc
(I) If following the Completion Date, the Company proposes to issue any
Relevant Securities ("Relevant New Issue"):
(1) for non-cash consideration, credited as fully paid (including,
without limitation, an issue of Relevant Securities as
consideration for the acquisition of any interest in a company,
business or other asset but excluding any issue of Relevant
Securities as contemplated in clauses 8.5(G) and 8.5(H)) ("Non-
Cash Issuance"); or
(2) in connection with a placing and "top-up" subscription of
Relevant Securities,
clause 8.5(J) shall apply (and for the avoidance of doubt, clauses
8.5(B) to 8.5(F) shall not apply).
(J) The following provisions shall apply in the event of a Relevant New
Issue:
(1) If the Company proposes to effect a Relevant New Issue, the
Company shall notify China Netcom in writing of such proposal
("Relevant New Issue Notice").
21
(2) The Relevant New Issue Notice shall specify the number and (if
relevant) the type of Relevant Securities to be issued or
proposed to be issued by the Company and the material terms of
the Relevant New Issue (including the proposed price per security
("Relevant Price")).
(3) China Netcom shall have the right to purchase or subscribe for
such proportion as it may wish of the Relevant Number of new
Relevant Securities at the Relevant Price by giving written
notice to the Company of the exercise of this right within three
Business Days of the giving of the Relevant New Issue Notice.
China Netcom and the Company acknowledge that the "Relevant
Number" will only be ascertainable after the three Business Day
period, and that the actual Relevant Number will be set out in
the notice to be given by the Company to China Netcom pursuant to
clause 8.5(J)(5). A notice given by China Netcom pursuant to this
clause 8.5(J)(3) shall be irrevocable. If such notice has not
been given or deemed to have been given by China Netcom within
such three Business Days, China Netcom shall be deemed to have
elected not to exercise its rights under this clause 8.5(J)(3).
(4) [Intentionally left blank]
(5) If China Netcom shall give notice to the Company pursuant to, and
in accordance with, clause 8.5(J)(3), the Company shall not later
than three Business Days after expiry of the three Business Day
period referred to in clause 8.5(J)(3) notify China Netcom in
writing of the Relevant Number of new Relevant Securities which
it is to purchase and the total consideration due for such
securities. The completion of China Netcom's purchase of Relevant
Securities pursuant to this clause 8.5(J) shall occur either
simultaneously with the completion of the Relevant New Issue or,
in the case of a placing and top-up subscription referred to in
clause 8.5(I)(2), at the time of completion of the top-up
subscription, or at such other time and place as shall be
mutually agreed by the Company and China Netcom. At such
completion, China Netcom shall deliver the aggregate purchase
price for the Relevant Securities to be purchased by China Netcom
pursuant to this clause 8.5(J) against the Company's delivery of
certificates representing the Relevant Securities to be issued
to China Netcom pursuant to this clause 8.5(J).
(6) In the case of a Non-cash Issuance, the Relevant Price shall be
based on the value of the Relevant Securities or the
consideration as stated in the agreements relating to Non-Cash
Issuance. If such value or consideration is not stated, the
Relevant Price shall be such amount as may be agreed between the
Company and China Netcom or, in default of agreement, the average
closing price of Shares on the Stock Exchange on the fifteen
trading days prior to the date on which binding agreements
relating to the Relevant New Issue were executed or, if earlier,
the date on which the Relevant New Issue was announced by the
Company in accordance with its obligations under the Listing
Rules.
(7) For the avoidance of doubt, nothing in clause 8.5(J)(1) to (6)
shall delay, impede or obstruct the completion of a Relevant New
Issue.
General Provisions
(K) For the purposes of this clause 8.5:
22
(1) "Other Anti-Dilution Issues" means the Relevant Securities to be
issued as a result of the Relevant New Issue to other
shareholders of the Company pursuant to anti-dilution rights
substantially similar to those contained in this clause 8.5;
(2) "Pro Rata Share" shall mean the following ratio (measured as at
the date of the relevant Issue Notice):
A
---
B
where:
"A" is the number of Shares in which China Netcom is interested
or deemed to be interested for the purposes of Part XV of the
SFO, excluding Shares in which China Netcom has become interested
other than pursuant to clause 2 or this clause 8.5 and excluding
also any interests or deemed interests arising from Relevant
Securities other than Shares; and
"B" is the total number of Shares then in issue;
(3) "Relevant Number" shall mean:
(a) in the case of an issue of Shares, the number of Shares
required to be issued to China Netcom such that the Relevant
Ratio of China Netcom's interest or deemed interest under
Part XV of the SFO (whether notified or not) in the issued
Share capital of the Company will not be reduced as a result
of the Relevant New Issue and the Other Anti-Dilution
Issues; and
(b) in the case of an issue of Relevant Securities other than
Shares, the number of Relevant Securities which represents
the Relevant Ratio of the total number of such Relevant
Securities to be issued pursuant to the Relevant New Issue
and the Other Anti-Dilution Issues;
(4) "Relevant Ratio" shall mean the following ratio (measured as at
the date of the relative Relevant New Issue Notice):
X
---
Y
where:
"X" is the number of Shares in which China Netcom is interested
or deemed to be interested for the purposes of Part XV of the
SFO, excluding Shares in which China Netcom has become interested
other than pursuant to clause 2 or this clause 8.5 and excluding
also any interests or deemed interests arising from Relevant
Securities other than Shares; and
"Y" is the total number of Shares then in issue (excluding, for
the avoidance of doubt, Shares issued under the Relevant New
Issue and the Other Anti-Dilution Issues);
23
(5) for the purposes of sub-clauses (2) and (4) above and to avoid
doubt, where China Netcom is interested or deemed interested in
the Same Shares (as defined below) pursuant to Part XV of the
SFO, the number of such Same Shares shall not be aggregated with
the number of Shares in which China Netcom is or would already be
interested or deemed interested pursuant to Part XV of the SFO.
"Same Shares" shall mean Shares in which "associated
corporations" (as defined in Part XV of the SFO) (other than the
Subscriber) of China Netcom are interested or deemed interested
pursuant to Part XV of the SFO.
(L) [Intentionally left blank]
(M) China Netcom shall be entitled to purchase Relevant Securities under
this clause 8.5 directly or through the Subscriber, and the provisions
of this clause 8.5 shall be construed accordingly.
(N) China Netcom acknowledges and agrees that its exercise of the rights
in this clause 8.5 shall in all cases be subject to all applicable
laws and regulations including the Listing Rules and the Takeovers
Code (including, where applicable, any requirement to obtain the
approval of the shareholders of the Company).
(O) The provisions of clauses 8.5(B) to 8.5(N) are conditional on the
satisfaction of the Condition in clause 3.1(A).
8.6 Replacement of Directors
China Netcom shall be entitled to nominate persons from time to time to
replace any of the appointments made under clause 4.1(B) and the Company
shall use its best endeavours to procure such new appointments to be made
as soon as practicable. If any of the persons appointed as a member of the
Board pursuant to clause 4.1(B)(1) or this clause 8.6, as the case may be,
is employed by the Company as an executive or officer, such person shall be
appointed as an executive director of the Company.
8.7 Cessation
(A) The provisions of this clause 8 (except clause 8.5 (Anti-dilution) and
this clause 8.7) shall cease to be of any effect on the earlier of:
(1) the Subscriber at any time ceasing to hold at least ten per cent.
(10%) of the total issued share capital of the Company; and
(2) China Netcom ceasing to hold, directly or indirectly, at least
75% of the issued share capital of the Subscriber or China Netcom
otherwise being in material breach of clause 6.3(B).
(B) The provisions of clause 8.5 (Anti-dilution)) shall cease to be of any
effect on the earlier of:
(1) the third anniversary of the Completion Date;
(2) the Subscriber at any time ceasing to hold at least 15 per cent.
(15%) of the total issued share capital of the Company; and
24
(3) China Netcom ceasing to hold, directly or indirectly, at least
75% of the issued share capital of the Subscriber or China Netcom
otherwise being in material breach of clause 6.3(B).
9. Guarantee
9.1 Guarantee Obligations
In consideration of the Company entering into this Agreement at the request
of China Netcom (as China Netcom hereby acknowledges), China Netcom shall
as primary obligations of it:
(A) procure that the Subscriber shall duly observe and perform all its
obligations owed to the Company under this Agreement or any other
agreement entered pursuant or ancillary hereto;
(B) if and whenever the Subscriber shall be in default in the payment when
due of any amount payable to the Company under this Agreement or any
other agreement entered into pursuant or ancillary hereto and within
two Business Days after being given notice to that effect by the
Company, pay to the Company all amounts then so payable by the
Subscriber to the Company as though China Netcom instead of the
Subscriber was expressed to be the principal debtor; and
(C) indemnify the Company against all costs and expenses (including legal
fees) which the Company may pay or incur in collecting any amount
payable by the Subscriber or China Netcom and referred to in clause
9.1(B).
9.2 Indemnity
Any amount not paid by the Subscriber and not recoverable from China Netcom
on the basis of a guarantee (whether because of any legal limitation,
disability or incapacity on the part of the Subscriber or any other matter
or thing whether known to the Company or not) shall nevertheless be
recoverable from China Netcom on the basis of an indemnity.
9.3 Indulgence etc.
(A) China Netcom acknowledges that its liability under this clause 9 shall
not be discharged or affected in any way by time being given to the
Subscriber or by any other indulgence or concession being granted to
the Subscriber or by any other act, omission, dealing, matter or thing
whatsoever (including without limitation any change in the
constitution of the Subscriber or China Netcom, any amendment to this
Agreement or any such other agreement entered pursuant or ancillary
hereto or the liquidation, dissolution, reconstruction or amalgamation
of the Subscriber or China Netcom or the illegality or
unenforceability of this Agreement or such other agreement) which but
for this provision might operate to release China Netcom from its
obligations under this clause 9.
(B) China Netcom agrees that its liability under this clause 9 shall not
be discharged or affected in any way by the assignment (if any) by the
Subscriber of its rights in this Agreement to the Alternate Subscriber
under clause 4.4.
25
9.4 Continuing Guarantee
The guarantee contained in this clause 9 is a continuing guarantee and
shall remain in full force and effect until all obligations of the
Subscriber hereby guaranteed have been discharged in full. It is in
addition to and shall not prejudice nor be prejudiced by any other
guarantee, indemnity or other security or right against any third party
which the Company may have for the due performance of the obligations
concerned.
10. No "acting in concert"
10.1 Nothing in this Agreement nor any action taken or proposed to be taken by
the Subscriber, China Netcom and/or the Company under or in connection with
this Agreement is intended to result in the Subscriber and/or China Netcom
"acting in concert" (as defined in the Takeovers Code) with the Substantial
Shareholders (or vice versa).
10.2 The Company and China Netcom agree that if at any time any Substantial
Shareholder, the Subscriber or China Netcom (collectively, "Relevant
Shareholders") considers that anything in or in connection with this
Agreement, or any of the actions or proposed actions of any of the Relevant
Shareholders, mean that the Subscriber and/or China Netcom are or will be
"acting in concert" (as defined in the Takeovers Code) with the Substantial
Shareholders (or vice versa) ("Concert Party Issue"), it shall notify the
other Relevant Shareholders of the Concert Party Issue (including
reasonable details of the issue and reasons for its concern), and each of
China Netcom, the Subscriber and the Company agrees that:
(A) it will consult with each other and with the Substantial Shareholders
on a timely basis and in good faith to discuss whether the proposed
action or actions can be undertaken in a manner or to an extent that
will not have such a result; and
(B) no action will be taken by it until the Concert Party Issue, together
with the proposed action(s) (if any), have been resolved to the
satisfaction of each of the Relevant Shareholders PROVIDED THAT if the
SFC confirms that any of China Netcom or any of the Substantial
Shareholders shall not itself or themselves be under an obligation to
make a mandatory general offer for the shares in the Company not held
by them (or parties acting in concert with them) (regardless of
whether any of the other Relevant Shareholders may be under such an
obligation), then the relevant Concert Party Issue shall be deemed for
the purposes of this provision to have been resolved to the
satisfaction of that or those Relevant Shareholders.
11. Confidentiality
11.1 Confidentiality
Subject to clauses 11.2, 11.3 and 12, each Party:-
(A) shall treat as strictly confidential the provisions of this Agreement
and the process of their negotiation and all information about the
other Parties obtained or received by it as a result of entering into
or performing its obligations under this Agreement ("Confidential
Information"); and
(B) shall not, except with the prior written consent of the other Party
(which shall not be unreasonably withheld or delayed and the Company
shall only require the consent of one of China Netcom of the
Subscriber), make use of (save for the purposes of
26
performing its obligations under this Agreement) or disclose to any
person any Confidential Information.
11.2 Permitted disclosure or use
Clause 11.1 shall not apply if and to the extent that the Party using or
disclosing Confidential Information can demonstrate that:
(A) such disclosure is to a Substantial Shareholder or a company
controlled by a Substantial Shareholder or under common control with a
Substantial Shareholder (a "Related Party)
(B) such disclosure is required by law or by any supervisory, regulatory
or governmental body having jurisdiction over it or a Related Party
(including the Stock Exchange, the SFC, the Singapore Stock Exchange
and the PRC State Council) and whether or not the requirement has the
force of law; or
(C) such disclosure is to its professional advisers in relation to the
negotiation, entry into or performance of this Agreement or any matter
arising out of the same; or
(D) such disclosure is required to facilitate the satisfaction of any of
the Conditions; or
(E) such disclosure is required in order to facilitate any assignment or
proposed assignment of the whole or any part of the rights or benefits
under this Agreement which is permitted by clause 17.7; or
(F) in the case of disclosure or use, the Confidential Information
concerned was lawfully in its possession (as evidenced by written
records) prior to its being obtained or received as described in
clause 11.1(A); or
(G) in the case of disclosure or use, the Confidential Information
concerned has come into the public domain other than through its fault
or the fault of any person to whom such Confidential Information has
been disclosed in accordance with clause 11.1(B).
11.3 Continuance of restrictions
The restrictions contained in this clause 11 shall continue without limit
of time.
12. Announcements
12.1 Restrictions
Subject to clause 12.2, no Party to this Agreement shall make any
announcement or issue any communication concerning the provisions or
subject matter of this Agreement or containing any information about the
other Parties without the prior written approval of the other (which shall
not be unreasonably withheld or delayed and the Company shall only require
the consent of one of China Netcom or the Subscriber).
12.2 Permitted announcements
Clause 12.1 shall not apply:
(A) to the Subscription Announcement; and
27
(B) if and to the extent that any announcement is required by law or by
any supervisory, regulatory or governmental body having jurisdiction
over it (including the Stock Exchange and the SFC), and whether or not
the requirement has the force of law and provided that any such
announcement shall be made only after consultation with the other
Parties.
13. Notices
(A) Any notice (which term shall in this clause include any other
communication) required to be given under this Agreement or in
connection with the matters contemplated by it shall, except where
otherwise specifically provided, be in writing in the English
language.
(B) Any such notice shall be addressed as provided in sub-clause (C) and
may be:
(1) personally delivered, in which case it shall be deemed to have
been given upon delivery at the relevant address; or
(2) if within Hong Kong, sent by pre-paid post, in which case it
shall be deemed to have been given two Business Days after the
date of posting; or
(3) if from or to any place outside Hong Kong, sent by pre-paid
airmail, in which case it shall be deemed to have been given
seven Business Days after the date of posting; or
(4) sent by facsimile, in which case it shall be deemed to have been
given when despatched, subject to confirmation of uninterrupted
transmission by a transmission report provided that any notice
despatched by facsimile after 5:00 p.m. on any day shall be
deemed to have been received at 9:00 a.m. on the next Business
Day.
(C) The addresses and other details of the Parties referred to in
sub-clause (B) are, subject to sub-clause (C):
If to the Company, to:
PCCW Limited
00xx Xxxxx, XXXX Xxxxx,
XxxXxx Xxxxx,
000 Xxxx'x Xxxx,
Xxxxxx Xxx,
Xxxx Xxxx
Facsimile: x000 0000 0000
Attention: The Company Secretary
If to the Subscriber, to:
China Netcom Group Corporation (BVI) Limited
59/F, Bank of Xxxxx Xxxxx,
0 Xxxxxx Xxxx,
Xxxx Xxxx
28
Facsimile: x000 0000 0000
Attention: Wang Chuanbao
If to China Netcom, to:
China Network Communications Group Corporation (GRAPHIC OMITTED)
59/F, Bank of Xxxxx Xxxxx,
0 Xxxxxx Xxxx,
Xxxx Xxxx
Facsimile: x000 0000 0000
Attention: Head of Business Development
(D) Any Party may notify the other Parties of any change to the address or
any of the other details specified in sub-clause (C), provided that
such notification shall only be effective on the date specified in
such notice or five Business Days after the notice is given, whichever
is later.
14. Waiver of Immunity
14.1 Immunity
It is acknowledged that the status of China Netcom in the PRC may afford
it certain protections and immunities not available to entities wholly
independent of any state body in the PRC and China Netcom has therefore
agreed to waive such protections and immunities as set out below.
14.2 Waiver
China Netcom irrevocably and unconditionally agrees with the Company that
in respect of any Proceedings brought against China Netcom or its assets by
the Company in relation to this Agreement or any other agreement entered
into pursuant to or as a result of this Agreement:
(A) no immunity from those proceedings (including, without limitation,
suit, attachment prior to judgement, other attachment, the obtaining
of any judgement, execution or other enforcement, or the enforcement
and execution of any award rendered by an arbitral tribunal
constituted pursuant to this Agreement) will be claimed by or on
behalf of itself or with respect to its assets;
(B) China Netcom shall (and hereby) waives any such right of immunity
which it or its assets now has or may subsequently acquire; and
(C) China Netcom consents generally in respect of any such proceedings to
the giving of any relief or the issue of any process in connection
with those proceedings, including, without limitation, the making,
enforcement or execution against any assets whatsoever (irrespective
of its use or intended use) of any order or judgement which may be
made or given in those proceedings or of any award rendered by an
arbitral tribunal constituted pursuant to this Agreement.
29
15. Law and Arbitration
15.1 Law
This Agreement shall be governed by and construed in accordance with the
laws of England for the time being in force.
15.2 Arbitration
(A) Any dispute, controversy or claim arising out of or in connection with
this Agreement, including any question regarding its existence,
validity or termination, shall be referred to and finally resolved by
arbitration under the LCIA Rules, which Rules are deemed to be
incorporated by reference into this clause. The arbitration commission
shall be the LCIA.
(B) The number of arbitrators shall be three.
(C) The seat of the arbitration shall be London.
(D) The language to be used in the arbitral proceedings shall be English.
(E) By agreeing to arbitration pursuant to this clause, the Parties waive
irrevocably their right to any form of appeal, review or recourse to
any state court or other judicial authority, insofar as such waiver
may validly be made. In particular, no Party may apply to the court to
determine any question of law arising in the course of the arbitration
pursuant to section 45 of the Arbitration Xxx 0000 or otherwise, and
no Party may appeal to the court on a question of law arising out of
an award made in the arbitration pursuant to section 69 of the
Arbitration Xxx 0000 or otherwise.
(F) The Parties shall have the right to seek interim injunctive relief
from a court of competent jurisdiction, both before and after the
arbitrators have been appointed, at any time up until the arbitrators
have made the final award.
16. Contracts (Rights of Third Parties) Xxx 0000
16.1 Subject to clause 16.2, no person who is not for the time being a Party to
this Agreement shall have any right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any term of this Agreement.
16.2 Each of the persons referred to in clauses 5.1(F) and 5.3 shall be entitled
to enforce the benefits conferred on him by such clauses, provided that the
consent of such persons shall not be required for the variation or
termination of this Agreement.
17. Provisions Relating to this Agreement
17.1 Counterparts
This Agreement may be executed in any number of counterparts, which shall
together constitute one Agreement. Any Party may enter into this Agreement
by signing any such counterpart.
30
17.2 Whole agreement
(A) This Agreement, together with any documents referred to in it,
constitutes the whole agreement between the Parties relating to its
subject matter and supersedes and extinguishes any prior drafts,
agreements, and undertakings, whether in writing or oral, relating to
such subject matter, except to the extent that the same are repeated
in this Agreement.
(B) Each of the Parties acknowledges that it has not been induced to enter
into this Agreement by any representation, warranty, promise or
assurance by any of the others or any other person save for those
contained in this Agreement.
17.3 Variations
No variation of this Agreement shall be effective unless made in writing
and signed by each of the Parties.
17.4 Further assurance
At any time after the Completion Date every Party hereto shall, at the
request of any other Party and at such requesting Party's cost, execute or
procure the execution of such documents and do or procure the doing of such
acts and things as the requesting Party may reasonably require for the
purpose of vesting in the requesting Party or its permitted assignees the
full benefit of all its rights in this Agreement.
17.5 Costs
Each Party shall bear its own costs arising out of or in connection with
the preparation, negotiation and implementation of this Agreement. Any
capital duty or fees payable to the Stock Exchange in relation to the
Subscription shall be borne by the Company.
17.6 Time Of The Essence
Any time, date or period mentioned in this Agreement may be extended by
written agreement between the Parties but otherwise and except as
expressly provided, as regards any time, date or period originally fixed
or any date or period so extended as aforesaid, time shall be of the
essence.
17.7 Agreement Binding and Assignment
This Agreement shall be binding on and enure for the benefit of each
Party's respective successors and permitted assigns. No Party shall assign
any of its rights under this Agreement (all of which shall be incapable of
assignment) or purport to do so without the prior written consent of the
other Parties.
17.8 Waiver
No failure or delay by any Party in exercising any right, power or remedy
under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of the same preclude any further exercise
thereof or the exercise of any other right, power or remedy. Without
limiting the foregoing, no waiver by any Party of any breach of any
provision hereof shall be deemed to be a waiver of any subsequent breach of
that or any other provision hereof.
31
17.9 Invalidity and Severance
If any provision of this Agreement shall be held to be illegal, void,
invalid or unenforceable under the laws of any jurisdiction, the legality,
validity and enforceability of the remainder of this Agreement in that
jurisdiction shall not be affected, and the legality, validity and
enforceability of the whole of this Agreement in any other jurisdiction
shall not be affected.
AS WITNESS the hands of the duly authorised representatives of the Parties on
the day and year first before written.
SIGNED by LI TZAR KAI, XXXXXXX )
for and on behalf of )
PCCW LIMITED )
in the presence of: )
SIGNED by ZHANG CHUNJIANG )
for and on behalf of )
CHINA NETCOM GROUP )
CORPORATION (BVI) LIMITED )
in the presence of: )
SIGNED by ZHANG CHUNJIANG )
for and on behalf of )
CHINA NETWORK COMMUNICATIONS )
GROUP CORPORATION )
in the presence of: )
32
SCHEDULE 1: THE COMPANY WARRANTIES
The Company hereby represents and warrants to the Subscriber that:
1. Subscription Announcement: All statements of fact contained in the
Subscription Announcement (other than statements relating to the CNC Group
or any member of the CNC Group) are true and accurate in all material
respects and not misleading in any material respect in the form and context
in which they appear, all expressions of opinion, intention or expectation
contained therein (which are stated to be held or expressed by the Company)
are made on reasonable grounds and are truly and honestly held by the
directors of the Company and are fairly based and there are no other facts
relating to the Company omitted the omission of which makes any such
statement or expression in the Subscription Announcement misleading in any
material respect or which are or can reasonably be expected to be material
in the context of the Subscription.
2. 2003 Accounts: The consolidated balance sheet of the Group as at 31
December 2003 and the consolidated income statement, the consolidated cash
flow statement and the consolidated statement of changes in equity of the
Group for the financial year ended on that date (including the notes
thereto) as set out in the annual report and accounts of the Group for the
year ended on 31 December 2003 (the "2003 Accounts") together gave a true
and fair view of the state of affairs of the Group as at 31 December 2003
and of the profits or losses, cash flows and changes in equity of the Group
for the financial year ended on that date and were prepared on the basis
set out therein.
3. 30 September Accounts: The unaudited consolidated results of the Group for
the nine months ended 30 September 2004 published on 2 November 2004 (the
"30 September Accounts") were carefully prepared in accordance with
accounting policies consistent with those used in preparing the 2003
Accounts and fairly reflect the results of operations for such nine months.
4. Previous Announcements: All statements of fact contained in all
announcements and circulars to shareholders made by or on behalf of the
Company pursuant to the Listing Rules since 31 December 2003 to the date of
this Agreement, except any announcement relating to the financial results
of the Group (including without limitation any interim or financial results
announcement), ("Previous Announcements") were true and accurate in all
material respects as at the respective dates of such Previous Announcements
and not misleading in any material respect. All expressions of opinion or
intention contained in the Previous Announcements were made on reasonable
grounds and were truly and honestly held by the directors of the Company
and there were no other facts known to the directors of the Company the
omission of which would make any such statement or expression in any of the
Previous Announcements misleading in any material respect in the context in
which the Previous Announcements were made and as at the respective dates
of such Previous Announcements.
5. Conduct of business: Save as disclosed in the Subscription Announcement or
any public disclosures made by the Company prior to the date of this
Agreement ("Previous Disclosures"), since 30 September 2004, the business
of the Group has been carried on in the ordinary and normal course; no
contracts or commitments of an unusual or unduly onerous nature have been
entered into by any member of the Group; and there has been no material
depletion in the net assets of the Group taken as a whole.
6. Licences: The Group has obtained all material licences (including
telecommunications and broadcasting licences) necessary to enable it to
operate the material parts of its
33
business as at the date of this Agreement, and each of those licences are
valid and subsisting and, so far as the Company is aware, there are no
facts or circumstances existing by reason of any breach by the licencees
why any of such licences will not be renewed on their expiry. So far as the
Company is aware, there are no governmental or regulatory investigations or
proceedings which have been initiated prior to the date of this Agreement
and have been notified in writing to any member of the Group and which are
reasonably likely to have a material adverse effect on the business,
prospects, assets, financial condition, or results of operations of the
Group taken as a whole.
7. No litigation: Save as disclosed in the Previous Disclosures, no member of
the Group is a defendant in any litigation, arbitration or governmental
proceeding which can reasonably be expected to have or have had during the
twelve months preceding the date hereof a material adverse effect on the
financial or trading position or prospects of the Group or which is
material for disclosure in the context of the Subscription and no such
litigation, arbitration or proceeding is threatened or pending; nor, to the
best of the knowledge, information and belief of the directors of the
Company, are there any circumstances which can reasonably be expected to
give rise to any such litigation, arbitration or proceeding.
8. Indebtedness and obligations: No circumstances or events have arisen or
occurred or so far as the Company is aware are likely to arise or occur
such that any person is (or would, with the giving of notice and/or lapse
of time and/or fulfilment of any condition and/or the making of any
determination, become) entitled to repayment of any material indebtedness
prior to its due date for payment by any member of the Group, or to take
any step to enforce any security for any such indebtedness of any member of
the Group and no person to whom any indebtedness for borrowed money of any
member of the Group which is payable on demand is owed has demanded or
threatened to demand repayment of the same; no member of the Group is party
to or under any obligation which is material and is of an unusual or unduly
onerous nature; neither this Agreement nor the Subscription will constitute
or give rise to a breach of or default under any agreement or other
arrangement to which the Company or any other member of the Group is party
or give rise to any rights of any third party in respect of any assets of
the Group.
9. Corporate power and consents: The Company has power under its
constitutional documents to permit its entry into this Agreement and the
Subscription in the manner set out herein and this Agreement (and its
performance) has been duly authorised (such authorisation remaining in full
force and effect), executed and delivered by, and constitutes legal, valid
and binding obligations of the Company enforceable in accordance with its
terms except as such enforceability may be limited under applicable
bankruptcy, insolvency, fraudulent transfer, reorganisations or similar
laws of general applicability relating to or affecting creditors rights and
to general equitable principles; subject to satisfaction of the Conditions,
there is no authorisation, consent, approval or notification required for
the purposes of or as a consequence of the Subscription either from
governmental, regulatory or other public bodies (including, without
limitation, the Stock Exchange) or authorities or courts or from the
respective sh areholders of the Company or from any third party pursuant to
any contractual or other arrangement to which the Company or any other
member of the Group is party; the Subscription and the compliance by the
Company with all of the provisions of this Agreement will not conflict with
or result in a material breach or violation of any of the terms or
provisions of, or constitute a material default under, any agreement or
instrument to which it is a party or by which it is bound or to which any
of its property or assets is subject and will not contravene any law or
regulation applicable to, or any order of any court or governmental agency
with jurisdiction over the Company or any member of the Group, or any of
their respective assets or properties.
34
10. Subscription Shares: Upon completion of this Agreement, the Subscription
Shares will be duly and validly authorised and issued and, when fully paid
up, will rank pari passu in all respects with the other issued Shares.
11. Stock Exchange and general compliance: The Company is not in material
breach of any rules, regulations or requirements of the Stock Exchange, and
the Company has complied in all material respects with all other applicable
rules, regulations and other requirements material or relevant to the
transactions contemplated by this Agreement as are required to be complied
with at the date hereof.
12. Incorporation and share capital: The Company has been duly incorporated and
is validly existing under the laws of the jurisdiction of its incorporation
with full corporate power and authority to conduct its business and the
information contained in Recitals (A) and (B) to this Agreement is true and
accurate; without limiting the foregoing, except for the Subscription or
pursuant to the convertible securities listed below (the "Convertibles") or
as specified in the Previous Disclosures, no person has any outstanding
warrant, option, pre-emptive right or any other right of any description to
require Shares to be allotted or issued by the Company. The Convertibles
are: US$54,000,000 5% Mandatory Convertible Notes due 2005 issued by the
Company - 28 June 2002, the US$450,000,000 1% Guaranteed Convertible Bonds
due 2007 issued by PCCW Capital No.2 Limited and guaranteed by the Company
and PCCW-HKT Telephone Limited and the US$1,100,000,000 3.5% Guaranteed
Convertible Bonds due 2005 issued by PCCW Capital Limited and guaranteed by
the Company - 6 December 2000. The terms and conditions attached to each of
the Convertibles at the time of their original issue have not been amended
or adjusted in any material manner which would affect the number of Shares
to be issued on conversion.
13. Certificate: The information and matters set out in the certificate
referred to in clause 4.1(F), when issued, are true and accurate in all
material respects.
35
SCHEDULE 2: LIMITATIONS ON THE COMPANY'S LIABILITY
1. Relevant Claims
In this schedule, "Relevant Claim" means any claim under this Agreement.
2. Financial Limits
2.1 Aggregate limit
The aggregate liability of the Company under this Agreement, including the
Company Warranties, shall be limited to US$350 million.
2.2 Thresholds
The Company shall not be liable in respect of a Relevant Claim unless:
(A) the liability of the Company in respect of that Relevant Claim (and
all other Relevant Claims arising out of or related to the same or
similar subject matter) exceeds US$5 million;
(B) the aggregate liability of the Company in respect of all Relevant
Claims in respect of the representations and warranties contained in
paragraphs 2 (2003 Accounts), 3 (30 September Accounts) and 13
(Certificate) of Schedule 1 exceeds US$20 million, in which case the
Company shall be liable for the whole amount and not merely the excess
over US$20 million; and
(C) the aggregate liability of the Company in respect of all Relevant
Claims (other than in respect of the representations and warranties
contained in paragraphs 2 (2003 Accounts), 3 (30 September Accounts)
and 13 (Certificate) of Schedule 1) exceeds US$50 million (when
aggregated with all Relevant Claims in respect of the representations
and warranties contained in paragraphs 2 (2003 Accounts), 3 (30
September Accounts) and 13 (Certificate) of Schedule 1, if
applicable), in which case the Company shall be liable for the whole
amount and not merely the excess over US$50 million.
3. Time limits
The Company shall have no liability in respect of any Relevant Claim in
respect of a breach of the Company Warranties unless the Subscriber shall
have given notice in writing to the Company of such claim specifying (in
reasonable detail) the matter which gives rise to the claim, the nature of
the claim and the amount claimed in respect thereof not later than 18
months after the date of this Agreement (or, if later, 2 months after the
date on which the audited consolidated financial statements of the Group
covering the year ended 31 December, 2005 are published).
4. No duplication of recovery
The Subscriber shall not be entitled to recover damages or otherwise obtain
reimbursement or restitution more than once in respect of the same loss.
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5. Legislation
The Company will not be liable for any claim to the extent that the claim
results from any act, matter, omission, transaction or circumstance which
would not have occurred but for any legislation not in force at the date of
this agreement, or any change of any law or administrative practice of any
governmental agency including any legislation or change which takes place
retrospectively.
6. Insurance
The Company will not be liable for any claim for breach of the Company
Warranties unless the Subscriber has first made a claim under any insurance
cover held by the Subscriber which may cover such claim and only then after
that claim is denied whole or in part by the relevant insurer and if the
Subscriber has still incurred some damage or loss will the Company be
liable for any claims under the terms of this Agreement for that damage or
loss. For the avoidance of doubt, the preceding sentence is not intended to
impose any obligation on the Subscriber to take out any insurance cover in
addition to that which it holds at the date of this Agreement.
7. Impact of Tax
In calculating the liability of the Company for a breach of Company
Warranty, any tax benefit or reduction received by the Subscriber as a
result of the loss or damage arising from that breach shall be taken into
account.
8. Consequential and Indirect Loss
The Subscriber may not claim for any indirect or consequential loss.
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