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Exhibit 10.46
LINKLATERS
& ALLIANCE
Dated 4 October 2000
CHINA MOBILE (HONG KONG) LIMITED
and
VODAFONE GROUP PLC
and
CHINA INTERNATIONAL CAPITAL CORPORATION LIMITED
and
GOLDMAN SACHS (ASIA) L.L.C.
and
MERRILL LYNCH FAR EAST LIMITED
STRATEGIC INVESTOR PLACING AGREEMENT
LINKLATERS
10th Floor, Alexandra House
16-20 Chater Road
Telephone: (852) 2842 4888
Facsimile: (852) 2810 8133
Ref: CCLL
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THIS STRATEGIC INVESTOR PLACING AGREEMENT ("AGREEMENT") is dated 4 October 2000
and is made BETWEEN:-
(1) CHINA MOBILE (HONG KONG) LIMITED whose registered office is at 60th
Floor, The Center, 99 Queen's Road Central, Hong Kong (the "Company");
(2) VODAFONE GROUP PLC whose principal office is at The Courtyard, 2-4
London Road, Newbury Berkshire RG14 1JX, England (the "INVESTOR");
(3) CHINA INTERNATIONAL CAPITAL CORPORATION LIMITED whose principal office
is at 28th Floor, China World Tower 2, No. 1 Jianguomenwai Avenue,
Beijing 100004, PRC ("CICC");
(4) GOLDMAN SACHS (ASIA) L.L.C. whose principal place of business in Hong
Kong is at 68th Floor, Cheung Kong Center, 2 Queen's Road Central, Hong
Kong ("GOLDMAN SACHS"); and
(5) MERRILL LYNCH FAR EAST LIMITED whose principal place of business in
Hong Kong is at 17th Floor, Asia Pacific Finance Tower, 3 Garden Road,
Central, Hong Kong ("MERRILL LYNCH" and together with CICC and Goldman
Sachs, the "GLOBAL CO-ORDINATORS").
WHEREAS:-
(A) The Company is proposing to effect a follow-on offering of its ordinary
shares ("SHARES") and American Depositary Shares representing Shares
("ADSS") by way of a global offering (the "GLOBAL OFFERING") of Shares
and ADSs comprising:-
(i) an offering of ADSs or (at the option of investors) Shares in
Asia (the "Asia Offering"); and
(ii) an offering of ADSs or (at the option of investors) Shares
outside of Asia, including the United States (the
"INTERNATIONAL OFFERING").
(B) The Company and the Investor wish to cooperate to promote their mutual
interests and build a lasting and mutually beneficial relationship and,
consistent with this, the Investor is now willing to make a significant
equity investment in the Company on the basis and terms set out in this
Agreement.
IT IS NOW AGREED AS FOLLOWS:-
1 INVESTMENT
The Investor will acquire the Investor Shares at the Initial Price to
Public under and as part of the Asia Offering. The Investor may elect
to acquire the Investor Shares through a wholly-owned subsidiary
(incorporated outside of the United States and with its principal place
of business outside of the United States), in which case the
agreements, acknowledgements and confirmations given in this Agreement
shall be deemed to be given by the Investor for itself and on behalf of
such subsidiary (the "INVESTOR SUBSIDIARY"). For the purposes of this
Agreement, the "INVESTOR SHARES" means such number of Shares calculated
in accordance with the Schedule to this Agreement; and the "INITIAL
PRICE TO PUBLIC" means the price at which Shares are acquired by
investors under the Asia Offering, expressed in Hong Kong dollars, and
determined as referred to in Clause 5(ii).
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2 AGREEMENT CONDITIONAL UPON COMPLETION OF GLOBAL OFFERING AND THE RIGHT
OF TERMINATION
2.1 The Investor's agreement in Clause 1 above (and the right of the
Investor to acquire the Investor Shares) is conditional upon
underwriting agreements for each of the Asia Offering and the
International Offering being entered into and having become
unconditional (in accordance with their respective original terms or as
subsequently varied by agreement of the relevant parties) by no later
than December 31, 2000. The Company intends to use its best efforts to
ensure that the Global Offering is duly completed but there can be no
guarantee of this and no liability to the Investor or any other party
to this Agreement will arise if the Global Offering is not duly
completed for any reason.
2.2 In the event that the Company and the Global Co-ordinators deem it
necessary to recirculate the preliminary prospectus of the Company, as
publicly filed with the United States Securities and Exchange
Commission in connection with the Global Offering (the "PRELIMINARY
PROSPECTUS"), due to a material adverse change in the business or
financial condition of the Company, its subsidiaries and the companies
the Company plans to acquire, taken as a whole, the Investor shall be
promptly informed in writing by the Company. The notice will be
accompanied by the revised form of the Preliminary Prospectus to be
recirculated. In such event, the Investor shall have the right to
terminate this Agreement by providing written notice to the Company and
the Global Co-Ordinators no later than the business day following the
date of such notice being received by the Investor. If no written
notice of termination from the Investor is received by the Company and
the Global Co-Ordinators within the time limit specified in the
preceding sentence, the Investor is deemed to have waived its right to
terminate pursuant to this Clause 2.2 and accepted the change made to
the Preliminary Prospectus to be recirculated.
3 CLOSING
3.1 Subject to Clause 2, the Investor will acquire the Investor Shares
pursuant to, and as part of, the Asia Offering and through the Global
Co-ordinators in their capacity as underwriters of the relevant portion
of the Asia Offering. Accordingly, subject to this Clause 3.1, the
Investor Shares will be acquired contemporaneously with settlement of
the Asia Offering. Payment for the Investor Shares shall be made on the
same day as payment is required from other investors which acquire
Shares under the Asia Offering through the Global Co-ordinators (the
"CLOSING DATE"). The Closing Date for Investor Shares is currently
expected to be late October or early November, 2000, and the Global
Co-ordinators shall use reasonable endeavours to keep the Investor
promptly informed of any change to the expected Closing Date. Delivery
of the Investor Shares to the Investor or the Investor Subsidiary, as
the case may be, shall be made through Hong Kong Securities Clearing
Company Limited for the account of the Investor or the Investor
Subsidiary, as the case may be, on the date notified to the Investor by
the Global Co-ordinators which shall not be later than 31 days after
the date of pricing as referred to in Clause 5(ii), but otherwise on
the same basis on which Shares are delivered to other investors which
acquire Shares under the Asia Offering through the Global Co-ordinators
(or in any other manner which the Company, the Global Co-ordinators and
the Investor may agree).
3.2 In the event that any of the over-allotment options granted to the
Global Co-ordinators in connection with the Global Offering (the
"OVER-ALLOTMENT OPTIONS") is exercised by the Global Co-ordinators (on
behalf of the underwriters), the Investor shall not subscribe for any
additional Shares issued upon exercise of the Over-allotment Options.
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4 RESTRICTIONS ON DISPOSALS BY THE INVESTOR
The Investor agrees that:-
(i) without the prior written consent of the Company and the Global
Co-ordinators, it will not, at any time during the period of 12
months after the Relevant Date (as defined below) (the "LOCK-UP
PERIOD"), Dispose (as defined below) of any of the Relevant
Shares (as defined below);
(ii) notwithstanding Clause 4(i), in the event that the Company and
the Investor do not enter into a strategic and technical
co-operation agreement before 28 February 2001, the Lock-up
Period shall automatically terminate on the 180th day (Hong
Kong time) after the Relevant Date without further notice and
thereafter, subject to Clauses 4(iii) and (iv), the Investor
shall be free to Dispose of the Relevant Shares in such manner
as it sees fit;
(iii) in the event of a Disposal of any Relevant Shares at any time
within 12 months after the expiry of the Lock-up Period, it
will give the Company not less than 7 days notice of such
intended Disposal and will use all reasonable endeavours to
ensure that any such Disposal will not create a disorderly or
false market;
(iv) without the prior written consent of the Company, it will not
at any time within 12 months of the expiry of the Lock-up
Period Dispose of any Relevant Shares to any Telecommunications
Company (as defined below) and will use reasonable endeavours
to ensure that any purchaser of Relevant Shares from it in such
period does not Dispose of such Relevant Shares to a
Telecommunications Company; and
(v) the Investor Shares have not been registered under the United
States Securities Act of 1933, as amended (the "SECURITIES
ACT") and may not be offered or sold in the United States
except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities
Act.
Clauses 4(i) and 4(iv) shall not prevent (a) the Investor from
acquiring the Investor Shares through any of its wholly-owned
subsidiaries or (b) the Investor (or any of its wholly-owned
subsidiaries) from transferring Relevant Shares to any wholly-owned
subsidiary of the Investor or to the Investor (collectively, "PERMITTED
ARRANGEMENTS"), provided that, in all cases (A) the Investor shall be
responsible for ensuring that any of its wholly-owned subsidiaries
which holds any Relevant Shares as a result of any permitted
arrangements shall duly comply with Clauses 4(i) to 4(iv) as if bound
by such obligations itself, and (B) if any of its wholly-owned
subsidiaries which holds any Relevant Shares as a result of any
permitted arrangements is about to or will cease to be a wholly-owned
subsidiary of the Investor, such entity must (and the Investor shall
procure that such entity shall), before ceasing to be a wholly-owned
subsidiary of the Investor, ensure that its entire interest in any such
Relevant Shares shall be fully and effectively transferred to the
Investor or to a wholly-owned subsidiary of the Investor and Provided
further that the Investor shall not be permitted to transfer any
Relevant Shares to a Telecommunications Company.
Notwithstanding any provision under this Clause 4, the Investor hereby
acknowledges that it is aware of, and the Investor represents, warrants
and agrees that it will comply with, the securities laws of the United
States, Hong Kong and other jurisdictions that prohibit, inter alia,
any investor who has received from the Company or any of the directors,
officers, employees, representatives, agents or advisers of the Company
material, non-public
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information relating to the Company or any of its subsidiaries from
Disposing of any Relevant Shares.
For the purpose of this Clause references to:-
"DISPOSE OF" or "DISPOSAL" includes creating, transferring or otherwise
howsoever disposing of or relinquishing any interest (including by the
creation of an option) in Relevant Shares;
"PROSPECTUS" means the final prospectus to be issued by the Company in
respect of the Global Offering;
"RELEVANT DATE" means the date of the Prospectus;
"RELEVANT SHARES" means the Investor Shares and any shares or other
securities of the Company deriving from the Investor Shares (pursuant
to any rights issue, capitalisation issue or other form of capital
reorganisation); and
"TELECOMMUNICATIONS COMPANY" means a company which is itself, or is a
holding company or a subsidiary of a company which is, engaged in the
fixed-line or mobile telecommunications business as its principal
business.
5 ACKNOWLEDGEMENTS
The Investor acknowledges, agrees and confirms that:-
(i) it will not become entitled to nominate or appoint any person
to be a director of the Company as a result or through its
purchase of the Investor Shares;
(ii) the Initial Price to Public is to be fixed by agreement between
the Company and the Global Co-ordinators (on behalf of the
underwriters) following, and on the basis of, an international
"roadshow" and "bookbuilding" process;
(iii) this Agreement and the relationship and arrangements between
the parties contemplated by this Agreement will be required to
be described in offering documentation and other marketing
materials for the Global Offering and, specifically, this
Agreement will be a material contract required to be filed with
regulatory authorities and/or made available for public
inspection in connection with the Global Offering;
(iv) the Investor Shares will be acquired by the Investor or the
Investor Subsidiary through the Global Co-ordinators as
underwriters on the basis provided in Clause 3 above, but on
the basis that:
(a) notwithstanding that any information or material
concerning the Company (whether prepared by the Company,
the Global Co-ordinators, or their respective
representatives or advisers or otherwise) may have been
furnished to the Investor by or on behalf of the Company
on or before the date hereof (collectively "EVALUATION
MATERIAL"), neither the Company, the Global
Co-ordinators, nor any of their respective
representatives or advisers have made, or make, any
representation or warranty as to the accuracy or
completeness of the evaluation material, and none of the
Company, the Global Co-ordinators and their respective
representatives or advisers has or will have any
liability to the Investor or any of its representatives
or advisers resulting from the use of the evaluation
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material, provided that the evaluation material shall not
include the Preliminary Prospectus. The Company
represents and warrants to the Investor that the
Preliminary Prospectus and any further amendments or
supplements thereto do not and will not, at the
applicable filing date thereof, contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances
in which such statements were made, not misleading; and
(b) the Investor has not relied, and will not be entitled to
rely, on any legal opinion or other advice given by legal
counsel to the Company or legal counsel to the Global
Co-ordinators and underwriters in connection with the
Global Offering, and has taken its own independent advice
to the extent it has considered necessary and
appropriate;
(v) the Company and the Global Co-ordinators will have the absolute
discretion to change or adjust (a) the number of Shares and
ADSs comprising in the Global Offering or any part thereof; and
(b) the ratio of Shares and ADSs to be offered by the Company
under the Global Offering or any part thereof;
(vi) the Investor or the Investor Subsidiary, as the case may be, is
not a U.S. Person (as defined in Rule 902 of Regulation S under
the Securities Act) and is acquiring the Investor Shares in an
offshore transaction in reliance on Regulation S under the
Securities Act;
(vii) the Investor or the Investor Subsidiary, as the case may be,
does not, directly or indirectly, own more than five per cent.
of the outstanding common stock (or other voting securities)
of any member of the National Association of Securities
Dealers, Inc. ("NASD") or a holding company for an NASD
member;
(viii) the Investor or the Investor Subsidiary, as the case may be, is
purchasing the Investor Shares for investment purposes and not
with a view to the distribution of such Shares; and
(ix) in making its final decision to invest in the Investor Shares,
the Company and the Investor acknowledge that the Investor or
the Investor subsidiary, as the case may be, will rely solely
on information contained in the Prospectus.
6. ANNOUNCEMENTS
The Company may issue a press announcement with respect to this
Agreement following official public filing with the US Securities and
Exchange Commission of the Company's Registration Statement for the
Global Offering. Except (i) for any announcement by the Investor which
may be required under the Hong Kong Stock Exchange Listing Rules (but
only after prior consultation with the Company and the Global
Co-ordinators with respect to the form, timing and content of any such
announcement); (ii) for any announcement by the Investor which may be
required by any other stock exchange on which the Investor's securities
are listed or traded (but only after such prior consultation with the
Company and the Global Co-ordinators with respect to the form, content
and timing of any such announcement); or (iii) as may be agreed by the
Company and the Global Co-ordinators, the Investor will not make any
announcement or other public statement with respect to this Agreement
or the arrangements contemplated by it. The Company will, to the extent
reasonably practicable, ensure that the Investor is given reasonable
opportunity to
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comment on references to it in the press announcement referred to above
(if issued) and any other relevant public announcements to be made by
the Company in connection with the Global Offering.
7. FURTHER EFFORTS
The Investor and the Company shall cooperate with respect to any
notifications to, or consents and/or approvals of, third parties that
are or may be required for the purposes of or in connection with this
Agreement.
8. MISCELLANEOUS
References in this Agreement to Shares and other shares and/or
securities of the Company shall be deemed to include Shares (and, if
applicable, other shares and/or securities of the Company) represented
by ADSs and other depositary receipts and similar rights. References to
disposals and acquisitions of, and other transactions in Shares and
other shares and/or securities of the Company shall be deemed to
include swaps, contracts for differences and other derivative
transactions having equivalent or comparable economic effect.
Calculations and determinations made in good faith by the Global
Co-ordinators shall be conclusive with respect to the number of
Investor Shares and the Initial Price to Public for the purposes of
Clause 1.
9. VALID AND BINDING AGREEMENT
Each of the parties confirms and represents that this Agreement has
been duly authorised, executed and delivered by it and constitutes its
legal, valid and binding obligations and that, except for such
consents, approvals and authorisations as may be required by the
Company to implement the Global Offering, no corporate, shareholder or
other consents, approvals or authorisations are required by such party
for the performance of its obligations under this Agreement. The
Investor further confirms and represents that this Agreement does not
constitute a "connected transaction" from its perspective under the
Hong Kong Stock Exchange Listing Rules, notwithstanding any
relationship between the Investor and any other party.
10. ALTERATION
No alteration to, or variation of, this Agreement shall be effective
unless made between all the parties and in writing.
11. COUNTERPARTS
This Agreement may be executed by the parties hereto in counterparts.
12. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of the Hong Kong Special Administrative Region of the People's
Republic of China.
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THE SCHEDULE
For the purposes of this Agreement, the "INVESTOR SHARES" means such number of
Shares that may be purchased with US$2,500 million at the Initial Price to
Public, rounded down to the nearest whole number.
The actual number of Investor Shares shall be determined by the Company and the
Global Co-ordinators and notified to the Investor as soon as practicable.
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IN WITNESS of the agreement set out above, each of the parties has executed this
Agreement by its duly authorised signatory on the date set out at the beginning.
CHINA MOBILE (HONG KONG) LIMITED
by: ______________________________________
Name:
Title:
VODAFONE GROUP PLC
by: ______________________________________
Name:
Title:
CHINA INTERNATIONAL CAPITAL CORPORATION LIMITED
by: ______________________________________
Name:
Title:
GOLDMAN SACHS (ASIA) L.L.C.
by: ______________________________________
Name:
Title:
MERRILL LYNCH FAR EAST LIMITED
by: ______________________________________
Name:
Title:
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