EXHIBIT 4.9
CITIGROUP GLOBAL MARKETS LIMITED
CITIGROUP CENTRE, CANADA SQUARE, CANARY WHARF, LONDON E14 5LB
August 22, 2003
NAM TAI ELECTRONICS, INC.
P.O. Box 3342, Road Town
Tortola, British Virgin Islands
Ladies and Gentlemen:
Nam Tai Electronics, Inc., a company incorporated under the laws of the British
Virgin Islands (the "SELLER") proposes, subject to the terms and conditions
stated herein, to sell the Hong Kong dollar denominated 3% convertible Notes due
2005 ("NOTES") with interest payable semi-annually issued by and with rights,
subject to the terms and conditions of the Notes to, and convertible into
ordinary shares of TCL International Holdings Limited (the "COMPANY"), a company
incorporated under the laws of the Cayman Islands and whose shares are listed on
The Stock Exchange of Hong Kong, to Citigroup Global Markets Limited, a company
incorporated under the laws of England (the "PURCHASER"). The Seller has entered
into an Amendment to the Subscription Agreement with the Company dated as of the
date hereof to permit global clearing and settlement of the Notes through
Clearstream (as defined herein) and Euroclear (as defined herein). Notes in the
principal amount of 40,000,000 (the "Securities") are to be sold hereunder to
the Purchaser by Nam Tai Electronics, Inc. The Securities will be purchased by
the Purchaser in the form of a Global Note in accordance with Regulation S
("Regulation S") under the U.S. Securities Act of 1933, as amended (the
"Securities Act"), and subject to the Rules Governing the Listing of Securities
on The Stock Exchange of Hong Kong Limited in relation to such trades, subject,
however, to the additional matters set out below. The Seller understands that
the Securities may be resold by the Purchaser outside the United States pursuant
to Regulation S. Terms not otherwise defined herein shall have the meaning
ascribed to them in the terms and conditions of the Notes.
SELLER'S REPRESENTATIONS AND WARRANTIES
l. The Seller represents and warrants to, and agrees with, the Purchaser,
as of the date hereof and as of the Closing Date (as defined in Section 4
below), that:
(a) Corporate power and authority. It has full power under its constitutive
documents and applicable law, and all authorizations, approvals, consents and
licenses required by it or its affiliates, including those prescribed by the
Rules Governing the Listing of Securities on The Stock Exchange of Hong Kong
Limited, if applicable, have been unconditionally obtained and are in full force
and effect, to permit it to enter into and perform this Agreement; and this
Agreement has been duly authorized, executed and delivered by it and is a valid
and binding Agreement of it enforceable in accordance with its terms;
(b) No conflicts, etc. The sale and delivery of the Securities and the
compliance by it with all of the provisions of this Agreement, as well as the
consummation of the transactions herein contemplated will not conflict with or
result in a breach or violation of any of the terms or provision 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, or any statute or any order, rule (including the Rules Governing the
Listing of Securities on The Stock Exchange of Hong Kong Limited), or regulation
of any court or governmental agency or body having jurisdiction over it or its
property or assets;
(c) Title to the Securities. No person has any conflicting right,
contingent or otherwise, to purchase or to be offered any of the Securities; the
Seller has valid title to, and the legal right and the power to sell and
transfer full beneficial and legal interest in, the Securities, and transfer of
the Securities to the Purchaser will pass title to such Securities, free and
clear of all Security Interests, liens, encumbrances, equities or other claims
together with all rights and advantages now and hereafter attaching to such
Securities; the ordinary shares to be issued upon the exercise of the conversion
right under the Notes will rank pari passu in all respects with other ordinary
shares of the Company;
(d) No stamp taxes. No VAT or stamp or other issuance or transfer taxes or
duties are payable in connection with the sale and delivery of the Securities in
the manner contemplated hereunder or the consummation of any other transaction
contemplated herein in connection with the sale of such Securities;
(e) No manipulation. None of the Seller, any of its affiliates or any
person acting on its or their behalf has or will make bids or purchases for the
purpose of creating actual or apparent active trading in, or of raising the
price of, any Securities or any right to purchase Securities or securities
convertible into or exchangeable or exercisable for Securities that is designed
to or that has constituted, or that might reasonably be expected to cause or
result in, manipulation of the price of any security of the Company;
(f) No inside information. The Seller is not aware of any information
(including without limitation any information regarding any material adverse
change or prospective material adverse change in the condition of, or any
actual, pending or threatened litigation, arbitration or similar proceeding
involving, the Company) that is not described in the Company's most recent
annual report or subsequent public information releases (collectively, the
"Publicly Available Information") that is necessary to enable investors to make
an informed assessment of the assets and liabilities, financial position,
profits and losses and prospects of the Company and its subsidiaries: to the
best of its knowledge, the Publicly Available Information is accurate and
complete in all material respects; and the sale of the Securities will not
constitute an insider dealing under the Division 4 of the Securities and Futures
Ordinance (Cap. 571) or other applicable law or regulations prohibiting "insider
dealing" in securities;
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(g) No directed selling efforts. None of the Seller, any of its affiliates
or any person acting in or its or their behalf has engaged or will engage in
any directed selling efforts with respect to the securities as defined in
Regulation S.
(h) Neither the Seller, nor any of its affiliates (as defined in Rule
501(b) of Regulation D), or my person acting on its or their behalf (i)
has made or will make offers or sales of any security or solicited or will
solicit offers to buy, or otherwise negotiated or will negotiate in respect of,
any security, under circumstances that would require the registration of the
Securities under the Securities Act; or (ii) has engaged or will engage in
any form of general solicitation or general advertising (within the meaning
of Regulation D) in connection with any offer or sale of the Securities in the
United States; the Securities are not of the same class (within the meaning of
Rule 144A) as securities listed on a national securities exchange
registered under Section 6 of the U.S. Exchange Act of 1934 or quoted in a U.S.
automated inter-dealer quotation system.
SALE AND PURCHASE
2. Subject to the terms and conditions set forth in this Agreement, the
Seller agrees to sell the Securities to the Purchaser at an aggregate price of
HK $39,555,068.49 (the "PURCHASE PRICE). The Purchaser agrees to purchase the
Securities at the Purchase Price. The Purchaser and the Seller agree that the
Purchase Price is inclusive of interest accrued on the Notes from May 9, 2003 up
to August 25, 2003.
PURCHASER'S REPRESENTATIONS AND WARRANTIES
3. The Purchaser represents and warrants to, and agrees with, the Seller
that neither it nor any affiliate has engaged or will engage in directed selling
efforts with respect to the Securities, as defined in Regulation S under the
Securities Act.
SETTLEMENT
4. Unless otherwise agreed by the parties, completion of the sale and
purchase of the Securities will take place on August 22, 2003 (the "CLOSING
DATE").
The Securities to be purchased by the Purchaser hereunder will be presented by a
definitive global Security in book-entry form that will be deposited by or on
behalf of the Company with a common depositary for Clearstream Banking, societe
anonyme ("CLEARSTREAM ) and Euroclear Bank, SA/N.V., as operator of the
Euroclear System ("EUROCLEAR").
On the Closing Date, the Seller will (i) cause the Issuer to transfer the
Securities to the account of the Purchaser at Euroclear and Clearstream,
respectively by issuing transfer instructions thereof; (ii) deliver the original
definitive Certificate representing the Securities to the Issuer; and (iii)
deliver to the Purchaser an officers' certificate in substantially the form
attached hereto as Exhibit 1.
Upon receiving confirmation on August 25, 2003 that the Securities have been
credited to Citigroup Global Markets Limited's Euroclear account No. 90895, the
Purchaser shall forthwith pay the Purchase Price by wire transfer in immediately
available Federal funds to the following account:
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Bank: Hong Kong Shanghai Banking Corporation Limited, 1 Queen's Road
Central, Hong Kong
Account name: Nam Tai Group Management Limited
Account number 500-815287-001
Upon confirmation of receipt of (i) the Purchase Price by the Seller and (ii)
the Securities by the Purchaser, the Purchaser and the Seller shall execute and
deliver the cross-receipts for the payment and delivery of Securities. All
transactions, deliveries and payments at the closing are deemed to take place
simultaneously, and no transaction, delivery or payment is deemed to be
completed until all transactions, deliveries and payments at the closing have
been completed.
SELLER'S COVENANTS
5. The Seller covenants and agrees with the Purchaser that:
(a) Prompt Payment, It will promptly pay or transfer to or to the order of
the Purchaser, on behalf of the purchasers of the Securities, as the case may
be, upon receipt, any dividend or distribution declared or other rights declared
or distributed by the Company in respect of the Securities for which a record
date occurs on or after the date hereof;
(b) Further Assurances. It undertakes, at its own expense, to execute all
such documents and do all such acts and things as the Purchaser may reasonably
require in order to give effect to the terms of this Agreement and to enable the
sale and purchase of the Securities to be carried out and given full force and
effect;
(c) Notice. It will notify the Purchaser forthwith if on or prior to the
Closing Date it comes to the Seller's knowledge that any of the representations,
warranties, undertakings or agreements set out in Section 1 above ceases to be
true and accurate or becomes misleading in any respect or that there has been
any breach of any of such representations, warranties, undertakings or
agreements.
EXPENSES
6. Except as may otherwise be provided in this Agreement, each party shall
bear its own fees disbursements, costs and expenses incident to the performance
of its obligations hereunder; except that the Seller shall bear all of the costs
of VAT, stamp duties, depositary fees, transfer taxes and duties incident to the
sale and delivery of the Securities to the Purchaser. The agreements and
covenants of the Seller in this Section 6 shall survive termination of this
Agreement.
CLOSING CONDITIONS
7. The obligations of the Purchaser hereunder shall be subject to the
following conditions:
(a) Representations and Warranties. All representations and warranties and
other statements herein by the Seller are, at and as of the Closing Date, true
and correct;
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(b) No Adverse Change. Prior to the Closing Date, there shall not have
occurred any change, or any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Company's most recent annual report or subsequent
information releases issued prior to the Closing Date that, in the reasonable
judgment of the Purchaser, is material and adverse and that makes it, in the
reasonable judgment of the Purchaser, impracticable to conduct the placement of
the Securities in the manner contemplated herein;
(c) Global Note. On or prior to the Closing Date, the Securities to be
purchased by the Purchaser hereunder will be presented by a definitive global
Security in book-entry from that will be deposited by or on behalf of the
Company with a common depositary for Clearstream and Euroclear.
(d) Securities Certificates. The Seller shall have on or prior to the
Closing Date delivered to the Issuer the definitive Certificates issued on
November 8, 2002 representing the Securities.
(e) The closing of the purchase of the relevant Notes pursuant to (i) a
purchase agreement between the Purchaser and United Asset Investments Limited
dated the date hereof in relation to principal amount HK$210,000,000 of the
Notes and (ii) a purchase agreement between the purchase and Go-Win Limited
dated the date hereof in relation to principal amount HK$ 100,000,000 of the
Notes, shall occur concurrently with the closing of the sale and purchase of the
Securities described herein.
The purchaser, in its sole discretion, may waive any of the foregoing
conditions. If any condition to the Purchaser's obligations has not been
satisfied prior to delivery of, and payment for, the Securities on the Closing
Date, the Purchaser may elect, in its sole discretion, to terminate this
Agreement. Sections 6, 8, 11, 12 and 13 shall survive any such termination.
INDEMNITY
8. (a) Indemnity. The Seller will indemnify and hold harmless the
Purchaser against any losses, claims, damages or liabilities to which the
Purchaser may become subject insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) relate to or arise out of any breach
or alleged breach of the representations and warranties, covenants or other
undertakings of the Seller in this Agreement or the Purchaser's participation in
the transaction contemplated by this Agreement, other than any losses, claims,
damages or liabilities that result from the Purchaser's bad faith or gross
negligence; and the Seller agrees to reimburse the Purchaser for any legal or
other expenses reasonably incurred by the Purchaser in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(b) Scope. The obligations of the Seller under this Section 8 shall be in
addition to any liability that the Seller may otherwise have and shall extend,
upon the same terms and conditions, to the directors, officers, employees and
controlling persons within the meaning of the Securities Act, as the case may
be, of the Purchaser and each of its affiliates within the meaning of the
Securities Act (and shall include the partners of any such affiliate).
The obligations of the Seller set forth in this section 8 shall survive
termination of this Agreement.
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DISCLOSURE
9. Prior to the Closing Date, except as may be required by applicable law
or regulation, the transactions contemplated by this Agreement may not be
publicly disclosed to any third party (other than to the Company and
professional advisors to the Seller) or otherwise publicly referred to by the
Seller without the prior written consent of the Purchaser.
SURVIVAL OF REPRESENTATIONS
10. The indemnities, agreements, representations, warranties and other
statements of the Seller, as set forth in this Agreement or made by or on behalf
of it, shall remain in full force and effect and shall survive delivery of and
payment for the Securities.
11. All statements, requests, notices and agreements hereunder shall be in
writing, and shall be delivered or sent by mail and facsimile transmission, if
to the Purchaser to Citigroup Global Markets Limited, Citigroup Centre, Canada
Square, Canary Wharf, London E14 5LB, England fax: (44) 207-986-1929; and, if to
the Seller to Nam Tai Group Management Limited, 15th Floor, China Merchants
Tower, Shun Tak Centre, 168-200 Connaught Road Central, Hong Kong, fax: 4852
2263 1223, Attention: Li Shi Yuen, Joseph. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
SUCCESSORS, ASSIGNS, ETC.
12. This Agreement shall be binding upon, and inure solely to the benefit
of, the Purchaser and the Seller and, to the extent provided herein, any
directors, officers, employees, controlling persons or affiliates of the
Purchaser, and their respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. Time shall be of the essence in this Agreement.
GOVERNING LAW
13. This Agreement shall be governed by and construed in accordance with
the laws of Hong Kong for the time being in force and the Parties hereby
irrevocable submit to the non-exclusive Jurisdiction of the Hong Kong courts.
COUNTERPARTS
14. This Agreement may be executed by any one or both of the parties hereto
in any number of counterparts and via facsimile, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
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If the foregoing is in accordance with your understanding, please sign and
return to us an original counterpart hereof, and upon the acceptance hereof by
you, this letter and such acceptance hereof shall constitute a binding agreement
among the Seller and the Purchaser.
Very truly yours,
CITIGROUP GLOBAL MARKETS LIMITED
By: /s/
---------------------------------
Name:
Title:
Accepted as of the date hereof:
NAM TAI ELECTRONICS, INC.
By: /s/ Li Shi Yuen, Joseph
---------------------------------
Name: Li Shi Yuen, Joseph
Title: President and Chief Executive Officer
For and on behalf of
NAM TAI ELECTRONICS, INC.
By: /s/ Li Shi Yuen, Joseph
---------------------------------
Authorized Signature 23HA
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EXHIBIT 1
FORM OF OFFICERS' CERTIFICATE
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